Estate Planning Law

An estate plan is a set of legal documents that spell out how you want all of your assets to be distributed after you die or in the event, you become incapacitated. An estate plan may include a living will, a durable power of attorney, a beneficiary designation form, a revocable living trust, and/or advanced directives. These documents give instructions to others regarding your medical decisions, financial affairs, and personal matters. They also provide guidance to your heirs and beneficiaries.

While you can DIY your estate planning using services like LegalZoom, if you have a lot of assets, children, or want to give items to non-family members, it is best to work with an estate planning attorney.

Why is it important?

While no one really wants to think about what will happen to their loved ones and assets after they pass away, having a will is one of the best things you can do to protect yourself and your loved ones, including:

• Ensure your family doesn’t lose their rights to certain items such as your home, car, bank accounts, retirement savings, life insurance policies, and even your burial plot.
• Avoid costly probate processes that might take a large amount of whatever you have left after you die instead of it going to your family.
• Plan now to save your family thousands of dollars in the future.
• Keep your money and assets from being seized by the state or locked for years in court.

When should you begin estate planning?

Depending on the complexity of your situation, it takes anywhere from a few hours to several months to complete your estate plan depending on the complexity of your situation.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Many people think estate planning involves simply creating trusts and wills, but these documents aren’t the only ones to consider. There are also living wills, powers of attorney, and health care proxies. Here’s a quick overview of each type of document.

Living Wills

A living will also known as an advanced directive, is a legal document that allows you to state your wishes regarding medical treatment if you become incapacitated. For instance, this includes if you want to be put on life support, end of life planning, etc. It doesn’t replace a trust or power of attorney but rather supplements them.

For instance, if you suffered a traumatic brain injury and paralysis in a skydiving accident, an advanced directive can take into account whether or not you want to be put on a ventilator or other life support measures.

Trusts

A trust is a legally binding document between the Settlor, Trustee, and Beneficiary. In a trust, the Beneficiary nominates a trustee to act on their behalf and serve over holding and distributing assets and property.

Power of Attorney

A power of attorney gives another party the ability to act on your behalf when you’re unable to make decisions for yourself. It is best practice to appoint two power of attorneys – one financial power of attorney and another medical power of attorney. These should be different people to avoid a conflict of interest.

For example, if you were injured in a car accident and couldn’t speak for yourself, you could appoint your spouse as financial power of attorney, so they could pay bills and file insurance claims on your behalf.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Another type of estate plan is known as a “family trust.” The purpose of a family trust is to provide for the care and support of minor children after the death of both parents.

Family Trust

A family trust directs the distribution of an individual’s estate among his or her children. However, this does not automatically transfer ownership of the assets to the beneficiaries identified in the document. Instead, the trustee distributes the family’s assets according to the terms specified in the trust agreement. For instance, you can divide up the assets equally among all your children, but it gets distributed at set increments. For instance, they only get 25% when they turn 18. 

Living Trust

Unlike a family trust, a living trust does not require court approval. Instead, a living trust is established by creating a document called a “trust agreement” that spells out how the trustee will manage the property owned by the trust.

While a living trust is a simpler alternative to a family trust, it doesn’t necessarily make sense for complex family arrangements. Or, if you are passing significant wealth to your children, you may want to divide it up differently to minimize tax burdens and avoid entitlement and work ethic issues. 

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Estate planning attorneys deal primarily with wills and trusts, although they may also act as executors under a will. They are responsible for ensuring that proper documents are drafted and executed and provide guidance and assistance during the drafting process.

On the other hand, Probate attorneys handle all legal matters related to a person’s passing, including administering their affairs, handling funeral arrangements, determining heirs, and distributing assets to beneficiaries. For individuals who have passed away but whose estates are still being administered, probate lawyers focus on the distribution and management of assets.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

You’ve probably heard plenty of horror stories about Grandpa Harvey or Great Aunt Agnes dying broke and alone in hospitals surrounded by strangers.

While you can’t prevent every unfortunate event, here are some actionable tips to help you create an estate plan that better protects your assets.

Decide what happens when you die

Depending on your situation, you’ll likely have life insurance proceeds and/or retirement plan assets to share with your beneficiaries once you die. If you don’t have a will in place, you won’t be able to decide who gets what after you pass away.

Write your will

Wills are legal documents that outline exactly who inherits certain items and money, including cash, bank accounts, real property, cars, boats, antiques, artwork, collectibles, life insurance policies, annuities, pensions, retirement plans, investments, IRAs, and RRSPs.

Wills provide clear instructions on how your possessions will be distributed among your heirs. They also specify how each beneficiary will inherit different pieces of your estate, depending on how you have arranged things in your will.

It is a good idea to consult an estate planning lawyer when drafting your will to make sure you understand the laws regarding wills in your state and that you complete the proper forms.

Set up your trust

If you have any dependents, set up a trust so that your children are taken care of in the event of your passing.

You may want to consult an attorney to figure out which type of trust makes the most sense for your situation.

Choose your beneficiaries

This includes naming beneficiaries to inherit all of your assets as well as naming a guardian for any minor children in case something happens to you.

While it might be uncomfortable, it is a good idea to put real thought into this.

For instance, what assets do you want to leave to your spouse? What assets do you want to leave to children? Are there requirements that you want to put in place before dividing up monetary assets for your children? What, if anything, do you want to leave to charity? Are there any restrictions on transferring any assets?

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Do you know what would happen if you were put on life support and unable to make your own medical decisions?

A medical power of attorney and advance directives are both tools you can use to protect yourself in that exact situation.

What is a Medical Power of Attorney?

A medical power of attorney (POA) is a person you legally appoint to make medical decisions on your behalf in the event you are unable to do so.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

A medical POA can be designated on a short or long-term basis. For example, you might assign one to step in and make medical decisions for you if you ever become incapacitated and unable to do so yourself.

However, you may only need one temporarily. For instance, if you were undergoing surgery you could appoint a temporary medical power of attorney in case a decision needs to be made while you’re under anesthesia.

Why do I need a medical power of attorney?

It doesn’t matter how old you are or what your health history is. If you suddenly become incapacitated and are unable to make informed choices about your health, this puts an increased burden on your family and doctors, who might make decisions that are contrary to what you would have wanted.

The hallmark case for why a medical power of attorney is essential is the Terri Schiavo legal saga. Terri spent 15 years on life support while her husband and family argued about whether or not to keep her alive since Terri didn’t have a medical power of attorney or a living will in place.

Having a designated medical power of attorney could have prevented that and honored Terri’s healthcare preferences.

What is the difference between a Medical Power of Attorney and Guardianship?

With a power of attorney, you determine who will be appointed to make medical decisions on your behalf should you become incapacitated. A guardianship is different. The court selects who will act as your guardian in the event that you can no longer care for yourself. The guardian will be granted the ability to make financial and legal decisions on the ward’s behalf, not just medical ones.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

The most important thing to consider when selecting a medical power of attorney is whether or not you trust the person. They should be competent and have your best interest in mind.

Many people will select a family member or close friend to be their medical power of attorney. Children are often chosen as POAs by their parents.

Restrictions

Note: Most states have restrictions that ban your primary physician, nurse practitioner, residential health care providers and their employees from being appointed as your medical POA because of their potential conflicts of interest.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Medical directives are often mistaken for medical power of attorneys, but there is a difference.

For example, if you were in a car accident, the directive would help the doctors determine if you should be kept on life support. In the same scenario, if you had an assigned power of attorney, that person would make the decision on your behalf instead of the medical team.

Which one is better?

In short, a medical directive is a set of written instructions for critical health decisions and a medical POA is someone that makes the health decisions for you. When it comes to medical power of attorney vs advance directive, neither one is better than the other. It helps to have both in place should you ever need them.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

The principal, or the person that the medical POA is assigned to, can terminate the arrangement at any time. Of course, if the principal is no longer sound of mind this will be taken into consideration by the court.

People who can override the POA

Other people can potentially override the medical power of attorney arrangement on the principal’s behalf. For instance, if a loved one is concerned that your medical POA is abusing their power or taking advantage of you, they can petition the court.

Keep in mind that the POA, also known as the agent, cannot transfer their responsibilities to another person. They do not have the authority to assign a different POA to you.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

As long as you are sound of mind, you can change your medical directive at any time. You can even cancel it entirely if you wish. Be sure to alert your family, health care providers, power of attorney, and anyone else you choose that you’ve made changes.

Can medical professionals refuse?

Though directives are legally recognized documents, you should know that medical professionals can still refuse to comply with your wishes. If they find your instructions medically inappropriate or unconscionable, they can refuse to follow them. However, they do have an obligation to help find another provider that can and will comply with your directive.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

There are three types of Power of Attorneys (POA) that you need to consider: Financial Power of Attorney, Medical Power of Attorney, and Durable Power of Attorney.

Financial Power of Attorney

A financial power of attorney lets you appoint a person to manage your finances. This person could be a financial professional that acts on your behalf, or a trusted friend or family member designated to handle your monetary affairs when you’re no longer physically or mentally capable.

Typically, your POA will be in charge of paying your bills or handling other real estate or financial matters.

Note that a financial power of attorney can be assigned for single, one-off incidents if the person designating the POA is unable to attend in person. For example, let’s say you’re closing on a house in a different state and you can’t make it to the closing in person. You could designate a POA to sign the paperwork on your behalf for that occasion only.

Medical Power of Attorney

A medical power of attorney, a.k.a. a healthcare proxy, is someone that has been designated to make medical decisions on your behalf in the event you become incapacitated​​.

While you can appoint one person to act as both your financial and medical power attorney, it is a best practice to appoint different people for each role.

You’ll also want to pay attention to specific rules and regulations in your state around who can and cannot be appointed as your medical power attorney. For instance, in many states, a residential health care provider or nursing home employee cannot be appointed as your medical power of attorney. This is to protect you from potential conflicts of interest.

Similar to a financial power of attorney, you may only need a medical POA on a short-term basis. For instance, let’s say you have a complicated surgery scheduled. You might appoint a power of attorney while you’re undergoing the surgery in case of complications.

Durable Power of Attorney

A regular power of attorney arrangement expires if the person becomes mentally incapacitated. Durable POAs remain in effect if this happens.

A durable POA can apply to financial or medical matters, and is used to plan for declining health or cognitive capacity, emergencies, or other situations where the person can no longer make decisions for themselves.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Life is unpredictable, and unexpected events can strike at any time. If you find yourself unable to make decisions for yourself due to illness, accident, or another incapacitating situation, having a power of attorney (POA) in place can provide you with peace of mind and ensure that your affairs are managed according to your wishes.

Why is a Power of Attorney Important?

• Ensuring Continuity of Care: In the event of incapacitation, a POA ensures that your financial obligations are met, your medical care is managed, and your personal affairs are handled smoothly.
• Avoiding Court Intervention: Without a POA, if you become incapacitated, your family or loved ones may need to seek court intervention to obtain guardianship or conservatorship, which can be a costly and time-consuming process.
• Peace of Mind and Control: Having a POA in place provides you with the peace of mind knowing that your affairs are in trusted hands, even if you are unable to manage them yourself.

A power of attorney is a valuable tool for planning ahead and protecting your future. By having a POA in place, you can ensure that your affairs are managed according to your wishes and that your loved ones are not burdened with unnecessary stress and difficulty during a challenging time.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

The primary difference between power of attorneys and living wills is that a POA is designated to make decisions on your behalf. A living will on the other hand is simply a document that lists your medical preferences in certain scenarios. It can be referenced when making decisions about your health, but it’s not an appointed agent that can make thoughtful decisions regarding more complex health care issues.

For this reason, it is a good idea to have both in place when planning for your future.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

In some cases, a power of attorney can be revoked or overridden. This can be done to protect the person in situations where they’re being abused, neglected, or taken advantage of by their appointed agent.

Court-appointed guardian

A court-appointed guardian can request the power of attorney status be revoked from the agent. Any interested party can also make this request by petitioning the court. Interested parties typically include family members or close friends.

However, as long as you are considered competent, you can end a power of attorney arrangement at any time and for any reason. You don’t need anyone else to petition on your behalf for this.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

What is a Living Will?

A living will, a.k.a an advance directive or healthcare directive, is a legally-binding document that indicates which medical treatments and end of life care you prefer in the event you become incapacitated.

This is especially important if you don’t have a durable power of attorney assigned to make medical decisions on your behalf.

For instance, this includes your specifications related to treatment preferences, organ donations, and life support care.

Who Should Get One?

Everyone should have a living will, no matter what their age. As you consider your estate planning, don’t neglect the medical portion of it. Most people are concerned with who will inherit their property when they pass, but don’t pay enough attention to their medical affairs. They think becoming incapacitated and end-of-life decisions don’t apply to them, or won’t for a long time. You never know if or when you’ll need a living will so it’s important that everyone planning for their future files one.

Power of attorney

Even if you have a power of attorney lined up, you should still have a living will. A living will directs the medical team and can help your POA make the decisions you would have chosen if you weren’t incapacitated.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

A living will is not the same thing as a last will & testament. Living wills refer to medical decisions while last will & testaments refer to the inheritors of your property.

As you consider your estate planning, know that your health and assets should both be considered. You don’t need one or the other. You can and should have a living will and a last will & testament in place.

Does a last will and testament need to be notarized or filed in court?

In most cases, living wills must be notarized or have a witness. Different states have different requirements for living wills. Check your state regulations or consult with an estate planning attorney for more information.

Can a Last Will and Testament Be Changed or Contested?‌

You can amend your last will & testament at any time as long as you’re not mentally incapacitated.

When it comes to contesting a will, only what the court determines to be “interested persons” can contest it. Beneficiaries, heirs (family members), and creditors can contest a will when necessary. For example, if they suspect fraud or the incapacity of the person who wrote the will. Contesting a will can be a challenging and complex ordeal so it’s important to seek legal advice if you plan to do so.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

The best answer to this question is “as soon as possible.”

No one knows when their health could fail them and they could become incapacitated. For example, you could suffer an unexpected stroke or get in a car accident tomorrow. When it comes to important health decisions, it’s best to be prepared.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

In this section, we’ll cover everything you need to know about obtaining a living will yourself.

Where can I get a will?

Depending on the state of your affairs, you may decide to DIY it or hire an estate planning attorney. If you can DIY it, check with your state’s laws regarding what forms you need to fill out. Services, like Legalzoom, provide a middle ground where you’ll pay a couple hundred dollars but they’ll take care of filing the right documents in your state.

However, if you have children under the age of 18, run a business, or have a lot of assets, it is in your best interest to consult with an estate planning attorney instead of trying to DIY your will.

Is a last will and testament legally binding?

Yes, a last will & testament is legally binding unless there is an instance of fraud or another reason to contest the will. For example, if you weren’t sound of mind when the will was written or your state requires a witness present and there wasn’t one.

How long is a last will and testament valid?

There is no expiration date on a last will & testament. If you correctly complete a legally-binding last will & testament, then it doesn’t matter if the will was signed 5 minutes or 50 years ago. It’s still valid.

Is a handwritten last will and testament legal?

Most states will not permit handwritten wills. This is to help reduce instances of fraud or confusion. You’ll need to make sure to follow your state’s guidelines to ensure your will is legally binding. If you have any questions, be sure to consult with an estate planning legal professional. They can walk you through the process and ensure your last will & testament is set up correctly.

Can a Will help to avoid probate?

Probate can be a costly, time-consuming process as assets are gathered and debts are paid. While a last will & testament can make probate easier by indicating which person will inherit what, you’ll need to consult with an estate planning attorney if you want to avoid probate entirely.

Note: Probate refers to the state’s court-supervised process of settling an estate and distributing assets or property to the heirs. Many people assume that having a will means that your estate can skip probate, but this isn’t true. Your will still has to go through probate to ensure property is divided correctly, but a will can reduce unwanted delays and higher court costs.

Joint ownership of property, beneficiary designations, and pay-on-death or transfer-on-death accounts are all methods of designating assets without probate. Revocable living trusts and simply giving away or donating property are other options. You’ll want to discuss all of your options with an estate planning attorney to figure out what’s best for your unique situation.

Are Wills public record?

Last will & testaments become part of the public record once they’ve been filed in probate court. However, simply writing a will doesn’t mean it becomes public. You don’t have to register it in a database or repository. Your will can be fairly private until you pass.

Typically, the executor of the will or the estate’s personal representative will be in charge of who can view the will. Once the person has passed, their heirs and beneficiaries are entitled to a copy of the will from the executor.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Several factors can lead to inheritance disputes, including:

When there’s an inequality in the will

An inheritance dispute can occur if a family member wasn’t included in the will or felt another member was favored over the others. This often happens among siblings if there’s a feeling that each one did not receive equal benefits from the estate or if one was left out.

When there isn’t a will

If the deceased doesn’t have a will, their estate is divided based on intestacy rules — rules set by the state on how to distribute assets. Typically, the laws of succession apply — the deceased’s spouse will inherit or any children will inherit equally if there is no spouse. But, this can lead to problems in situations where a relative who helped with the deceased or was close to the deceased believes they should be a beneficiary but isn’t due to the intestacy rules.

When second marriages are involved

Family dynamics can get complicated. When a parent remarries, the new spouse and their children can sometimes be the beneficiaries instead of the children from the deceased’s first family.

When family estrangements occur after a will was made

Changes in family dynamics can lead to disputes. For instance, if a family member had a falling out with the deceased, but the will was never changed, they will still inherit. This can cause disputes since some family members may feel like they would have inherited if the will had been updated.

When a will is outdated

Sometimes people will have a will, but over the years, their wishes change. However, if they don’t update the will, the outdated will is still used even if they expressed different wishes verbally before death.

When a will doesn’t conform to state law

A will dispute can occur if the will isn’t valid because it doesn’t comply with the state’s requirements.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

An inheritance dispute occurs when the beneficiaries of a will disagree about how the person’s estate should be divided.

How long does an heir have to claim their inheritance?

The executor or trustee of the estate is responsible for informing beneficiaries of their inheritance and attempting to distribute it.

According to the U.S. Securities and Exchange Commission, the timeframe for claiming an inheritance varies from state to state.

Waiting to claim an inheritance you’ve been informed of, especially if a year or more has passed, can lead to problems.

For instance, others can make claims on the estate or initiate an heirship proceeding, resulting in assets being assigned to them. As a result, there may not be enough assets left to cover your inheritance if you wait too long to claim them.

Can heirs refuse inheritance?

Heirs have the right to refuse an inheritance, legally called a disclaimer of inheritance.

In this situation, the heir must submit a legal document formally refusing the inheritance to the executor or trustee of the estate. Typically, an heir should complete this document within nine months of the deceased’s death.

Additionally, the heir doesn’t get to determine who will receive it. Instead, the inheritance passes on to the next beneficiary in line.

Can a beneficiary lose their inheritance?

Some situations can result in someone not receiving the inheritance they anticipated, depending on the state’s laws. Some examples include:

• If the parents had remarried, some assets may pass on to the deceased’s spouse regardless of the will. Additionally, when that spouse passes, the assets could then go to their children instead.
• If there isn’t a will, state law can determine the beneficiaries and distribution of assets, regardless of any expressed wishes of the deceased.
• The surviving spouse is often the beneficiary of 401K retirement accounts, even if another person is named as the beneficiary unless that spouse has signed a consent waiver before the deceased’s death.

Can creditors take your inheritance?

Your inheritance can be used to pay off a debt to a creditor.

For instance, the court will hear the case and determine what you owe if a creditor sues you. The court’s order may indicate that you use the assets from your inheritance to pay.

However, there are exceptions. For instance, the Homestead Exemption provides some protection against liens on inherited real estate.

An inheritance received through a spendthrift trust will protect it from claims by creditors because you can only use the assets when the trust agreement permits distribution.

Additionally, you can disclaim the inheritance, which would then transfer the inheritance to the next beneficiary in line.

What happens if an inheritance is not claimed?

Unclaimed inheritance typically passes to the next heir in line.

But, an unclaimed inheritance can also be turned over to the state through escheatment. The dormancy period, or specific amount of time that must pass for an asset to be considered abandoned varies based on the state and type of property involved.

However, you may still be able to claim these assets after escheatment if they’re still available.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Inheritance disputes can be time-consuming, expensive, and emotionally taxing on the surviving family.

Fortunately, proper estate planning can help reduce and even prevent disputes from happening.

How to avoid inheritance disputes

• Talk openly and honestly with family members about your wishes and plans, especially with your children and stepchildren.
• Don’t wait to set up a comprehensive estate plan.
• Attempt to divide your estate fairly among surviving relatives, and be open about any family estrangements.
• State your reasons for why you’re dividing your estate the way you are in the will or by including a letter of instruction, especially if
• you’re not dividing assets equitably.
• Talk to family members ahead of time about any items they want for sentimental reasons and make those wishes known to everyone involved.
• Make the difference between family loans and gifts clear.
• Avoid joint ownership.
• Keep your will and estate planning up-to-date and consult an estate planning attorney as needed to ensure your will complies with state requirements.
• Include a no-contest clause in the will to discourage having it contested.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.

Even with proper estate planning, disagreements can occur. In these cases, follow these best practices:

Hire a mediator

This neutral third party can help family members productively work through differences and typically costs less than a legal battle.

Liquidate all assets first

Sometimes it’s hard to divide assets equally, even when trying to do so. For instance, some assets, like a home, may be worth more than other assets. To help divide assets fairly, everyone involved can agree to liquidate all assets and then split the proceeds equally.

Appoint an independent executor or trustee

Sometimes problems arise if a family member is assigned as the executor. In these situations, the person can decline and select an independent fiduciary, like an estate planning attorney. Having a neutral third-party involved can help ensure everyone feels the process and division of property are being done fairly.

This article is for general informational purposes only and is not legal advice. Contact us today to discuss your specific situation.