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FAQ Estate Planning Questions

  • What is power of Attorney for healthcare

Answer: Power of attorney for healthcare is a legal document which appoints a person to be your “agent” when you are unable to make or communicate healthcare decisions for yourself. The agent whom you appoint will have the ability to make medical decisions for you including but not limited to, admitting or discharging you for a hospital, consent, or withdraw to treatment for any physical or mental condition, and life end decisions. You may name a “successor agent” or someone to become your healthcare agent, if the first person you originally named it unable or unwilling.  You may not name a co-agent, which means two people acting together to make decisions for your healthcare. Your power of attorney for healthcare takes effect, when your doctor determines that you lack the capacity to make your own healthcare decisions. Your agent has a duty to act in good faith and for your benefit.  They must also act in accordance with your wishes in the form and with state laws.  It is important to pick someone you trust.  You can revoke your power of attorney and if it appears, they are not acting in your best interest, they can be called into question in front of a judge for a proper finding.  It is important to pick people who you trust, who will act in your best interests.

  • What is power of attorney for property

Answer: The power of attorney for property is a legal document which appoints a person to be your “agent.” There is various reason why a person would want a power of attorney for property such as you are incapacitated due to illness, travel, disability or absence.  A power of attorney for property can be used for temporary or permanent purposed.  An agent for power of attorney for property can make decisions regarding but not limited to your assets, finances, real estate, stock, banking, and tax.  By following the form and document of power of attorney, your agent will able to act out your wishes when it comes to financial and property matters accordingly.  Your agent must act in good faith in accordance with your wishes and can be held negligent if found not acting in accordance with your wishes. It is important to name agents you trust, as well as a competent attorney to prepare your documents.

  • What is a revocable living trust?

 Answer: A revocable living trust is an estate planning tool which can help divide property either when you die or before. Revocable means you can change the terms and conditions of the trust, and the term living means that it was created in your lifetime.  When you create a trust, you become the “grantor” the grantor then can transfer property to a “trustee” who then can transfer the property to the intended beneficiaries through this written agreement. The trustee can be a person, bank, or small firm or another corporation. The purpose of the trust is to create a document which allows the property to be transferred without going through the probate courts.

  • How does a living trust differ from a will?

 Answer:  A living trust and will are very different estate planning tools.  A will goes into effect when you die, while a trust can go into effect when you create it.  A will takes care of property which is in your name and cannot cover property held in joint tenancy.  A trust can hold any property which is legally transferred into the trust. A will also will pass through probate and in generally looked over by a judge, verse a trust usually will stay out of the courts and is overseen by the trustee. A will becomes part of a public record, while a trust will not. The benefits of a will are that it allows you to make funeral arrangement and name guardians for your children, while a trust cannot.  A trust can be beneficially for tax purposes and to remain private. Wills are generally less complicated and used for people with modest assets verse trusts which are used for larger estates.

  • What is probate court

 Answer: Probate is a legal process that works with assets and debts after a person has died. Probate court is the designated court which this probate process takes place. Probate court deals with all areas of estate planning.  In other states it may be known as the Chancery Court, Surrogate Court or Orphans Court.  When a person dies without a will, their inheritance will pass intestate as per each state’s laws within the probate court. When a person dies with a will, the the last will and testament will dictate who will receive the property rather than intestate laws. Probate court ensures that each will is valid. If a person will become challenged, the probate court would also handle this matter.  Most states require the payment of some form of tax based on the estate; many people create trusts to help alleviate some of taxes imposed upon the estate. It is important to speak with a qualified attorney in order to create estate planning which is right for you.

  • What is asset protection/planning?

 Answer: Asset protection is a technique used to guard one’s wealth from someone trying to collect against you, via a lawsuit, or creditors. Asset protection planning means taking one’s assets and repositioning them to become exempt assets.  It is important to begin asset protection planning before it becomes a judgment to a creditor. Asset protection planning can be thought of to manage your short term and long-term financial goals, as well as your estate planning needs.

  • What is a pour-over will?

Answer: A pour-over will is a will that is often used in conjunction with a trust.  It works in way so that at the time of your death, your  will  and your property then “pours into” your trust. The advantage of a pour-over will is that all your estate documents become just one, your trust.  Having just one trust is simple and clear for the trustee and beneficiaries.  A will also covers all the assets that you may not have transferred into the trust and places them in the trust. Also, like other advantages between trusts and wills, the trust allows more control over your own assets and less time in probate court, as well as an aspect of privacy.

  • What is a business exit planning?

 Answer: A business exit strategy is part of creating a business plan.  It is important to do because it lets investors know your long-term goals with your business.  It may also help you clearly define long term and short-term goals and begin planning for accordingly. Many people who do not have a business exit plan can run the risk of not living the life they want but working until the business is no longer or they die.  Having defined terms in the beginning of what you want the end to look like can help you on a personal, financial and business level.  Having a corporate attorney who can help you draft your goals and begin the legal documents can create a business exit strategy and benefit you personally as well.

  • What is a special needs estate planning?

 Answer: Many parents wonder what will happen to their special need’s child once they passed.  For many parents this can be frightening to imagine but and many questions come up as to if their child will be taken care of properly.  Working with a specialized attorney and creating a special needs estate plan can help alleviate some of the parent’s worry. It is important for many parents to do a special needs estate planning for themselves as well their child.  There are often many challenges associated with special needs planning which require the help of a qualified attorney.  Many of the issues are providing for the child without jeopardizing the child’s supplement social security income and Medicaid, or how to make sure there are enough funds available to the child and family after the parent’s death.  Many of these challenges can be remedied by legal documents such as a special needs trust, or a third-party special needs trust, or combining trusts with other relatives.  Having an attorney who is competent in this area can help you and your family plan and protect your children.

  • What is blended family challenges in estate planning

 Answer: Blended families are a term used to describe families which are “blended” from new or prior marriages.  Many if not most people have blended families and estate planning can be difficult and present unique challenges for many family members. Planning out who gets what for each of your loved ones can be difficult.  For example, you want to your biological children to inherit differently than your stepchildren or protect the wealth of your family if your spouse remarries.  Even designating your personal items between children can cause various issues.  Many times, relaying on your children or other family member to “work out” the estate distribution can lead to more issues than necessary.  Estate planning is a solution to make sure your assets go to the people of your choosing. Some areas to consider when estate planning for blended families are prenuptial and postnuptial agreements, disinheritance, trusts, and life insurance trusts. Setting up estate planning with a trusted attorney is essential to making sure your wishes are fulfilled and your loved ones are accounted for.

  • What is a private land trust and what are the benefits?

 Answer:  A private land trust is a private agreement between a trustee and a beneficiary and a deed from the trustor to the trustee.  When the trust agreement goes into effect during its execution the beneficiary will no longer be viewed as the owner of the property and it remains private to the public.  The trustor or person who creates the trust is the original title holder and usually the beneficiary for his or her lifetime.  A trust agreement sets up the relationship between the trustee and the beneficiary.  The beneficiary of trustor has the right to control the trustee and receive the income from the trust usually as per the trust agreement. It is way to avoid probate and to keep the property private.

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