Wills, Living Wills, Powers of Attorney, and Probate

Wills & Probate | Patricia P. Davis, Attorney at LawEvery adult with assets should have a Will. A Will tells how you want your assets distributed. In a Will, you name your Personal Representative (also called Executor or Executrix.) You waive the requirement that they must obtain a bond (which is like an insurance policy.) You can name who you want to raise your children (called a Guardian) and who will manage your children’s money (called a Trustee) until they reach the trigger age, usually 21. It is useful to have first and second choices for the jobs of Personal Representative, Guardian and Trustee. A Will requires two witnesses and must be notarized. I only prepare simple Wills which do not involve estate taxation planning or Medicaid planning. Typically, I meet with the client for an office conference to gather the information. I mail you the rough draft and you make corrections. We get together a second time to sign the final documents.

A Power of Attorney is a document whereby you designate an agent to handle your financial matters in your place. A Power of Attorney is very important in the event that the principal becomes disabled, such as a stroke or broken writing hand. Elderly people, particularly elderly people who live alone, should have a Power of Attorney. A Power of Attorney must be notarized.

A Living Will tells others whether or not you want to be kept alive when there is no hope of recovery. You name the agent and the successor agent who will speak on your behalf when you are unable to speak. A Living Will requires two witnesses and I prefer to have it notarized.

Probate is the process in which you record the Will after the maker of the Will has passed away. A form has to be completed and forwarded to the Surrogate’s Office in the county of residence of the deceased. The Surrogate’s office issues short certificates to the Personal Representative. The Personal Representative’s job is to gather up the assets and pay the liabilities of the decedent. Sometimes, inheritance and estate tax returns must be filed and taxes paid. Certain assets require a waiver in order to transfer title. Most estates can be resolved with an informal accounting, which is consented to by all of the beneficiaries.

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