Wills, Trusts, Probate, Living Wills, Powers Of Attorney

Wills

After years of hard work, do you want the state or a person not of your choosing to control how your wealth and personal items will be distributed? A will is the foundation document for estate planning as it itemizes the wealth distribution of your choice and names an executor of your estate who is mandated by law to carry out your wishes as specified in your will.

Can you avoid probate? The simple answer is yes, especially if all of the assets in the estate are jointly held. The best example is of a house jointly held by husband and wife. If one dies the other inherits the house and the house avoids going through the probate process. Other examples are assets owned by a trust, life insurance proceeds that go directly to the heirs without going through probate, IRA’s, bank accounts and investment accounts.

Trust

A trust is a document tailored for a more specific distribution and often works together with your will.

Probate

Probate is the court supervised process through which an estate is administrated and assets are distributed to heirs. In other words, the probate court oversees the proper distribution of assets, sets appropriate deadlines and makes sure the process is fair and legal to those involved.

The probate process begins with the filing of a petition for estate administration with the probate court in the town, city or county where the person lived at the time of his/her death. The estate must be open for at least 6 months and can be open for as long as a year. Naturally this can be a daunting and overwhelming experience for a grief stricken heir or family member which is why it is a good idea to have an attorney familiar with this area of the law handling the probate process.

Powers of Attorney There are two kinds of Powers of Attorney: Financial and Health.

These are documents that typically come into play if you are no longer able to make financial and/or health care decisions for yourself. These documents should be done long before any anticipated need for them arises.

Financial: A Power of Attorney for Finances is used should you became disabled to control your finances should you become disabled or incapacitated. It is like a contingency plan in the event that you are no longer able to handle your financial affairs on your own. It is important that the person you name to be your agent, also called “attorney in fact”, be someone you trust and who will take direction on how you want your finances handled and your documents signed. Your attorney in fact can also legally take care of other business matters in the way that you direct them to.

Health: The Power of Attorney for Health is similar to the financial power of attorney in that you appoint an agent to handle any unforeseen medical decisions that need to be made on your behalf when you can no longer make or communicate such decisions yourself.

Living wills

A living will provides specific directives about the course of treatment that is to be used only if the individual has become unable to consent or to refuse a certain treatment due to incapacity.

A living will can be very specific or very general. An example of a common statement often found in a living will is: “If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that serve only to prolong my dying be withheld or discontinued.” A living will can state the opposite as well such as an instruction that all life sustaining procedures be utilized.

Seaton and Lohr can help you with your questions and what documents are needed in this area of the law.

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