Planning for the handling of your Estate after your death differs from planning for events that occur during your life. The purpose behind preparing a Will versus a Living Will differs, even though the terms are often used interchangeably. In the simplest terms, your Will deals with the handling of your estate assets after your death, while Living Wills and Powers of Attorney plan for the day when you might not be able to manage your assets on your own.
What Is Estate Planning?
The term Estate Planning incorporates many activities. It can include completing a Last Will and Testament, a Power of Attorney, and a Living Will. It can also encompass evaluating your assets’ current ownership and transferring ownership to protect assets and minimize tax expenses. It can also involve establishing trusts to ensure that assets allocated to a beneficiary in a Will don’t destroy a beneficiary’s eligibility for governmental benefits or to provide oversight in a situation where a beneficiary or child lacks capacity or should not receive full control over assets. The goals of estate planning are to streamline the estate administration, appoint appropriate fiduciaries to handle the estate administration process, and preserve asset value.
What Is A Living Will?’
A Living Willis the legal document that comprehensively details which treatments you, while alive and incapacitated, would want to proceed with, such as:
●Antibiotics or Antivirals
●Organ and Tissue Donations
Without a Living Will, the next of kin or heirs are bound to go through a long and mentally taxing process as they become the individual the physician will turn to for major medical decisions.
What Is A Power of Attorney
A Power of Attorney document is where an individual gives someone the power to act on their behalf. Basically, it allows someone else to stand in your shoes and act on your behalf. Most powers of attorney are done as Durable Powers of Attorney, meaning they remain in place and are effective even if someone becomes disabled. One of the biggest advantages of a Durable Power of Attorney is that is allows a family to avoid having to apply to the court for a guardian to be appointed on someone’s behalf. If a family member loses the ability to manage their own affairs due to illness, age or accident, if no power of attorney has been executed, then the family would need to file to have a guardian appointed. The process of having a guardian appointed requires filing a legal action in court, the appointment of an attorney by the court to evaluate the need for the guardian, affidavits from physicians, and issuing notices to interested parties. It can be time-consuming and expensive. A well-drafted durable power of attorney avoids this process and allows a chosen person to continue to handle the financial affairs of someone who is temporarily or permanently incapacitated.
What Is A Last Will & Testament
A Living Will should not be confused with a Last Will & Testament. The terms of a Last Will & Testament become effective upon the death of the person signing the Will. Many clients focus almost exclusively on planning for death, but planning for disability or temporary incapacity is equally important. Your Last Will & Testament provides an orderly distribution of your assets and appoints the individuals (fiduciaries) who will oversee the final distribution of your Estate. Those individuals (executors or personal representatives) will gather your assets, open a bank account, pay final expenses, file any necessary tax returns, and submit any accounting that might be required. In contrast, a Living Will describes the measure of treatment you would like in end-of-life situations. It may also appoint someone to make medical decisions for you when you cannot due to incapacity. However, this appointment of a medical decision-maker might also be done in a separate document known as a Health Care Proxy, which is the equivalent of a medical power of attorney.
What Is Probate?
Probate is a court-supervised legal process established to determine the validity of a person’s Will and, once confirmed, to ensure that the person’s last wishes are honored and that their assets are distributed appropriately. Probate is the legal process the State requires to be followed to ensure a person’s assets Will be distributed to their intended beneficiaries. Ideally, probate is not contentious and can be completed relatively quickly. However, on occasion, disputes arise as to the legitimacy of a Will, the appointment of an Executor or Administrator, or the handling of an Estate by an Executor or Administrator. Beneficiaries should not be kept in the dark, and if you are a beneficiary of an Estate, you have a right to be kept apprised of its status. We receive many calls from clients who need assistance obtaining information regarding an estate administration and determining what has taken place.
Contact Byrnes O’Hern And Heugle to Start Your Estate Planning Today
Estate planning is an extensive and complex process. The sheer amount of documentation needed may seem intimidating and quite frankly daunting, but working with an expert at Byrnes O’Hern, and Heugle will make the process easier. Contact us today to learn more.