Practice Areas - Wills/Trusts/Powers of Attorney
What is a will?
A will is a written, legal document which directs where your property and assets
will go when you die. It should be witnessed by two witnesses and notarized as
well, but it can be legal even if this is not done.
Why have a will?
If you do not have a will then the law of the State in which you reside will
determine how your property will be distributed, often first to a spouse and any
children, then parents and brothers and sisters, and then lastly to other relatives.
If you do not have relatives then the property will go to the State. This may or may
not be how you want your property distributed. Also, if you make a will then you get
to choose the person who will carry out these wishes, known as a personal representative
or executor.
Does all of my property go through this will?
No. If you have a trust, then your property will go through the terms of that trust.
If you have named a beneficiary for your property then this property will go to who you have
listed as your beneficiary. The most common example of your property passing to a beneficiary
would be life insurance, and when you die your life insurance proceeds will be paid directly
to your beneficiary and not according to your will. Also, if you own property jointly with
another person where there are rights of survivorship, or payable on death rights, then the
person(s) who are on the property or account will own it jointly upon your death. An example
of this is real estate held as joint tenants with rights of survivorship. If you have bank
accounts or other accounts with two names on them they are probably joint and payable to the
survivors on death, but if you are not certain check with the bank or other entity holding these
funds or property.
Can I leave my property to anyone that I want?
Yes, with the exception that you cannot disinherit your spouse. Usually you cannot totally
exclude your spouse without his or her permission. Your spouse can receive less than all your
property in your will, but is guaranteed by law a minimum amount of your property.
Can my will be challenged?
Wills can be challenged usually under two theories. First, that the person signing the will
lacked “testamentary capacity”. In other words, the person signing the will didn’t know what he
or she was doing. This usually occurs when the person has a mental condition that makes him or
her unable to realize what he or she has for assets and to whom he or she wants to give them upon
death. The other way to challenge a will is if a person uses undue influence to get the testator
to sign a will and leave that person property or assets. If any person has told or suggested to
you that you leave your property to them or someone they know you should disclose this immediately
to your attorney.
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What is a power of attorney?
It is a document that is effective while you are alive, and it delegates power to another person
to act for you. They are sometimes called a proxy. Powers of attorney are often either financial
or health care, with financial giving a person the authority to take any financial action that you can
take (buying, selling, borrowing, spending, etc.). The health care power of attorney gives a person
authority to make health care decisions for you (to decide if you will have an operation, be hospitalized,
receive medication, etc.). You choose the person who will act for you either financially or in decisions
regarding your health care. Most health care powers of attorney provide information regarding what was
formerly known as a “living will”. This “living will” information indicates whether you wish to be kept
alive if you are in an irreversible, incurable condition and you go into cardiac arrest or need other
medical treatment, and whether you want artificial food or water if you are in this irreversible and
incurable condition.
What is a springing power of attorney?
It is what we recommend for financial powers of attorney (health care powers of attorney are only
effective if you are unable to make decisions for yourself). A springing financial power of attorney
usually means it is effective only if some condition is met, usually that your doctor finds you cannot
make financial decisions for yourself. At that point the power of attorney springs into effect
What does it mean to have a durable power of attorney?
Durable means that the power of attorney is effective even if you are disabled. Often it will contain
the words “this power of attorney is not affected by my subsequent disability”.
What is a limited power of attorney?
It is a financial power of attorney that gives a person a right to conduct a specific act or acts
for another person. Examples are powers of attorney (sometimes called proxies) which allow another
person to vote in a corporate election for the shareholder or member, or where a person is granted
authority to sign a deed and closing documents for another person.
What if I don't have a power of attorney?
So long as you are conscious and of sound mind and able to make decisions for yourself then, there
is no problem. However, should you develop a mental condition (such as Alzheimer's) or be unconscious
or in a coma, but still be alive, and need decisions made for you, there will be no person able to do
this (a spouse does not have the right to make decisions for you simply by virtue of marriage). If you
don’t have a power of attorney and this happens then you will need to be granted a conservatorship
(to handle financial matters) and/or guardianship (to handle matters regarding the care of a person)
from the Probate Court. Also, without a living will you cannot legally direct that no heroic measures
be taken on your behalf to keep you alive, or that the artificial food and/or water be stopped to allow
you to die.
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What is a trust?
A trust is a written instrument, created either in a written document while a person is alive (inter
vivos trust), or as part of a will to be executed when a person dies (testamentary trust). The trust
breaks up ownership of property into two parts, a trustee and a beneficiary. The trustee is the legal
owner of the property held in trust, and owns, invests, and uses the property to benefit one or more
beneficiaries. For example, if you were given $10 to give to a child for lunch money, you would be the
trustee and the child the beneficiary. You are to hold this money for the benefit of the child. This is
a trust.
What are the reasons for creating a trust?
The best reason to create a trust is for lessen the federal and state estate taxes you pay. If a trust
is not needed for tax reasons, then it is not as critical. It can be used to avoid probate, but given
the cost of setting up a trust and the ease of probate, it is not a huge savings when doing estate
planning by trust. However, there is some savings, and some speed in getting assets in the trust
distributed, but you will need to convey all your property into this trust, which will then pass to
your beneficiaries when you die.
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