You must have certain documents to handle your affairs upon your death or in case you are incapacitated. These documents might be a trust or a will, powers of attorney and health care directives like a health care power of attorney and a living will.
Preparing to have estate planning documents.
Before you have a lawyer draft documents, you need to decide who is best able to handle your affairs. Usually a spouse can handle your estate or your financial affairs, but if he or she dies before you or is unable to handle your affairs you need to have an alternate person in mind. It has to be someone who is trustworthy and will act in your best interests.
You also need to know what property you have and to whom it will go to. You need to have alternates in mind if the people to whom you are giving property to die before you. Most people just say that all their property will go to a certain person, but others like to say that a certain item will go to a certain person.
If you have a minor child, you should decide who will take care of the child if no parent is able to rear the child.
What the Documents Do
A will or a trust states what happen to your property upon your death. A will may or may not be probated. A Trust avoids probate because the person’s property is transferred into the trust before the person dies.
A Durable Power of Attorney gives legal permission to another person to handle your financial affairs if you are unable to do so.
A Living Will states what you want done if you are terminally ill or in a coma.
A Health Care Power of Attorney appoints someone to handle your health care decisions if you are unable to do so. It also lets the person handle your funeral arrangements.
A Beneficiary Deed says who receives certain real estate upon your death, thus avoiding probate.
A Trust or a Will?
Whether you have a will or a trust depends upon your circumstances. If most of your property is your house, you can get away with a will. A beneficiary deed will transfer your house, thus avoiding probate. If you have personal property valued over $50,000 you might want to consider a trust to avoid probate. If you have property in another state, have an large estate that might be subject to estate tax, or if you don’t want to give your estate to your children outright, a trust might be better than a will.
With a trust, you have to transfer your property into the trust once it is signed. Real estate is transferred with a deed. Bank and investment accounts have to be transferred by filling out forms.
What Happens if You Don’t Have These Documents
If you don’t have these documents, then your wishes for distributing your property and the person you want to handle your affairs may not be honored. If you don’t have a will or a trust, the property passes according to the state law. In Arizona, property first passes to the spouse, then the children, then parents, siblings, grandparents. The person handling your estate would be the spouse, then any other heirs. A bond would be required unless the heir waived it.
If you have no spouse, then your nearest relatives may end up handling your affairs. If you have no relatives, then the court may appoint a public fiduciary.
If you don’t have a Durable Power of Attorney, a court appointed guardian may be required.
If you don’t have a living will and a health care power of attorney, then hospital may have the nearest relative make decisions. The medical facility may not withdraw food and water if you are terminally ill, if there is no written expression of your wishes.
How Are These Documents Signed?
Two disinterested(not inheriting) persons witness the person signing his or her will. All signatures are notarized.
A Power of Attorney is witnessed by a disinterested person. The person making the Power of Attorney(Principal) and the witness initial each paragraph in which the person acting on the Principal’s behalf(Agent) might possibly benefit by acting on the Principals behalf. Each signs the document and it is notarized.
Health care directives are signed by the person making them and that signature is notarized.or witnessed by someone not involved with making health care decisions for the person.
How Are These Documents Changed?
A will is changed by a Codicil, which is an amendment to the will that is signed the same way the will is. Changed CAN NOT by marked on the original will and be legally valid.
A trust is changed by amendment, which is signed by all the trustees and notarized.
A power of attorney needs to be re-done in order to be changed. It can be revoked at any time by the person making it, but the agent has to be notified.
Similarly, health care directive can be revoked at any time, but they have to be re-done to be changed..
This website is for information only and is not intended to be legal advice and anyone with a specific legal issue should seek the advice of an attorney. It does not create an attorney client relationship.
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