What is a Will?
A will is a document containing your instructions and wishes as to how your property and assets are to be distributed after your death.
Why do I need a will? Without a will, you have no say in who gets your assets, state law will establish who gets your assets after your death. A will can allow you to make specific bequests to loved ones and can also establish who will care for minor children upon your death. A will can provide that gifts to younger individuals be held in trust for their health education and welfare. A will can also provide for charitable contributions to be made to organizations that are important to you.
Do I need an attorney to write a will? It is recommended that you use a skilled attorney to draft your will. This will assure that the will is valid and will be accepted by the court for probate upon your death. If a will is found to be invalid, your wishes will not be followed for the distribution of assets.
What is a Power of Attorney?
A power of attorney is a document in which you state that you give someone else (usually a relative or friend) the authority to make certain decisions and act on your behalf. The person to select to act on your behalf is called your “agent”.
What rights to I give up by signing a Power of Attorney?
When you establish a Power of Attorney, it does not meant that you can no longer make decisions; it just means that another person can act for you also. For example, you may be hospitalized for a brief period of time and need someone to deposit your checks in the bank or pay your bills. As long as you are capable of making decisions, the other person must follow your directions. You are simply sharing your power with someone else. You can revoke the agent’s authority under the Power of Attorney at any time if you become dissatisfied with what they are doing. If you revoke your Power of Attorney a Notice of Revocation must be prepared and provided to the former agent and any entity that agent was in contact with to make sure a that all interested parties are advised of the change.
What kind of Power of Attorney do I need?
As an attorney, I typically recommend that a Durable Power of Attorney be issued. This will allow your agent to continue acting on your behalf if you would become incapacitated The agent will still be obligated to act in your best interest, making decisions and using your money and property only for your benefit.
If you do not establish a durable power of attorney and you become mentally incapacitated, it may be necessary for a court to appoint a guardian or conservator for you.
Have you been named Executor of a will?
This is not a task to take lightly. As executor, you are the person responsible for managing the administration of a deceased individual’s estate. Even if you are the executor of a small estate you will have important duties that must be performed correctly or you may be liable to the estate or the beneficiaries. As Executor, you have the right to select counsel to work with for the administration of the estate, regardless of who drafted the will.
What are the duties of an Executor?
Locate documents. This includes the original will, death certificates, and other documentation of assets and debts
Hire an attorney. You are not required to hire an attorney, but mistakes can cost you money. An Executor can be held personally liable if something goes wrong with the estate or the payment of taxes. Legal Counsel can help you make sure all the proper steps are taken and deadlines met.
Apply for probate. If there is a will, the court will grant you letters testamentary. If there is no will, you will receive letters of administration. This will officially begin your work as the executor. An attorney can help you with the paperwork required for this step.
Notify interested parties. Beneficiaries of the will, if there is a will, as well as any potential heirs (such as children, siblings, or parents who may or may not be named in a will) must be notified. . In addition, you will have to place an advertisement for potential creditors in a newspaper near where the deceased lived. Court rules must be followed for the proper notification and advertisement regarding the estate.
Manage the deceased’s property. A list of the deceased’s assets and liabilities will be necessary for tax returns. You may also need to hire an appraiser to find out how much any property is worth. In addition, if the estate includes a business, you may have to make sure the business continues to run.
Pay valid claims:. Once the creditors are determined, you will need to pay the deceased’s debts from the estate’s funds. This will include funeral expenses and probate fees, which are usually paid first.
File tax returns. You need to make sure the tax forms are filed within the time frame set under the law. Taxes will include estate taxes and income taxes. You should consult an attorney regarding these requirements.
Distribute the assets to the beneficiaries. As executor, you are responsible for making sure the beneficiaries get what they are entitled to under the will or under the law. You may be required to sell property in order to fulfill legacies in a will. In addition, you may have to set up any trusts required by the will.
Keep accurate records. It is very important to keep accurate records of everything you do.
File the final documents with the court. This could be a final accounting or a Family Settelement Agreement. Once this is filed, a final report must be filed with the court to close the estate.