Estate Planning Frequently Asked Questions
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Estate planning is a complex and often confusing field, one that many people neglect until it's too late. In order to safeguard your assets, make sure your wishes are followed, and provide for your loved ones after you're gone, you need a collection of legally binding estate planning documents. Contact an experienced family law attorney at Hocker Law, LLC for a free consultation about your planning needs. Before you call, read through our FAQ to find out more:
- Who needs estate planning documents and why?
- What if I am married? Won't my money just go to my spouse if I don't have a will?
- What is a Power of Attorney, Executor or Trustee?
- Can I name more than one person as my Executor, Trustee or Power of Attorney?
- Do I need to name the same person to be my Executor, Trustee, General Power of Attorney and Healthcare Power of Attorney?
- What if the person I name does not follow through with their obligations?
- What if I change my mind about how to divide my assets or who to name as a personal representative?
Everyone needs estate planning documents. Without them, your family may be faced with significant hardship, not to mention legal fees, to settle your estate or obtain guardianship over you if you are incapacitated. Even if your relatives agree on a course of action, going through the court system can be emotionally and financially draining. It is difficult enough when a friend or family member is injured, ill or passes away; plan for this and save your loved ones from additional heartache.
Estate planning documents also ensure that your requests and personal instructions are carried out during a period of incapacity or following your death. While we hope that you won't be in such a situation for a long, long time, the reality is that unexpected illness or injury can strike at any time. Plan for the future now and have invaluable peace of mind should the worst happen.
If you die "intestate," meaning without a will, your assets will be divided according to the laws of the state where you reside. In many cases, this division could be contrary to your intent and wishes; in some cases, your spouse may only be entitled to 50% of your estate. Writing a last will and testament will provide for your spouse, children and other relatives as you intend.
A Power of Attorney is a legal document that enables a person of your choice to act in your place. With regards to estate planning, you will need a durable power of attorney; that is, a document that enables another person to make decisions on your behalf if you are incapacitated. A General Power of Attorney names a trusted person to manage your financial affairs if you are unable to do so yourself. A Healthcare Power of Attorney, also known as a health care proxy or similar, makes medical decisions on your behalf if you are unable to do so yourself. A living will is a legal document that tells your Healthcare Power of Attorney how to handle healthcare decisions if you are in a persistent vegetative state.
An Executor, or personal representative, is a person named in your last will and testament who is responsible for controlling your estate after your death until it can be distributed as described in your will. An Executor is tasked with identifying and collecting your assets, including any property of value, and have them appraised by a qualified appraiser. The Executor must also provide notice to your creditors, complete an initial accounting of financial activity, prepare tax documents, distribute assets and close the estate.
A Trustee is a person responsible for administering a Trust, which can be created either during your lifetime or after your death depending on your needs and wishes. Trusts are typically used to provide for the care and education of children, grandchildren or other minor relatives until they are old enough to assume responsibility for the assets themselves. Your Last Will and Testament can direct that the proceeds of your estate are to be held in trust under the control of a Trustee of your choosing; the Trustee is legally bound to act within the terms of the trust, which are specified in the Last Will and Testament.
Technically, yes, you can name Co-Executors, Co-Trustees or Co-Powers of Attorney, but we do not recommend it. Although you can choose two people to share each responsibility, this can cause friction and disagreement between them. If they cannot agree, then they will have to resort to litigation to decide how to resolve the issue. Given that this will be an emotionally trying time for them to begin with, such disagreements may damage the relationship between the two individuals.
While we don't recommend naming two or more people as executors, trustees or powers of attorney, we do recommend naming at least one alternate. That way, if the person you name predeceases you or also becomes incapacitated, you will still have someone trustworthy to manage your affairs and make important decisions on your behalf. Be sure to identify alternates to include in each of your estate documents.
Absolutely not. You can assign each responsibility individually in whatever manner best suits your estate planning needs. You can name a different person for each of these responsibilities, or you can name the same person for all of them.
The individual charged with any of these responsibilities is legally bound to follow your directives and act in yours, or your estate's best interest. If he or she is not doing so, a friend or family member may seek assistance from the Court to intervene and replace the bad-actor.
You can always rescind an estate planning document and prepare a new one with the corrected information. The last document you create should be honored as the controlling document as long as it fulfills the legal requirements.