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FAQs

1. What is a living will/advanced directive?

A living will is a specific type of advanced directive. These are legal documents addressing your wishes regarding medical care if you are unable to decide for yourself. These documents ensure doctors and caregivers know what to do if you’re terminally ill, seriously injured, in a coma, in the late stages of dementia, or near the end of life.

Advance directives are important for all adults because unexpected end-of-life situations can happen at any time. By planning ahead, you ensure you receive the medical care you desire, avoid unnecessary suffering, and prevent loved ones from having to make difficult decisions.

2. What is a Revocable Living Trust?

A revocable living trust, also known as simply a living trust, is a legal entity created to hold ownership of someone’s assets. The person forming the trust is the grantor or trustmaker, and in most cases, also plays the role of trustee, which means he or she controls and manages the assets in the trust. Some trustmakers choose to have an institution or attorney acts as trustee, although this is usually rare.
A revocable living trust applies to three phases of the trustmaker’s life:

  • His or her lifetime
  • His or her possible incapacitation
  • What happens after his or her death

3. Is jointly owned property a good estate plan?

When property is jointly owned and one spouse passes away, the other receives all the property without having to go through the probate process. This eliminates any potential estate taxes at the first death because federal law allows for an unlimited marital deduction. It can be an advantageous estate plan, but it isn’t perfect and it isn’t right for everyone. For instance, this arrangement might prevent you from taking advantage of certain tax deductions. It’s important to speak to an estate planning expert to determine the best arrangement in your situation.

4. What is health care or medical power of attorney?

Power of attorney is a written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter, sometimes against the wishes of the other. Medical or health care power of attorney specifically addresses medical issues. The document typically instructs doctors and medical professionals how to proceed if a person is not able to communicate his or her wishes in the moment. The document also gives the power of medical or health care power of attorney to another person who then has the legal authorization to make decisions about a person’s medical care.

5. What happens if you die without a will?

Dying without a will means you have died “intestate.” This means the intestacy laws of the state where you reside will determine how your property is distributed upon your death. This includes any bank accounts, securities, real estate, and other assets you own at the time of death. It can drastically complicate things for your surviving family members, so it’s always best to create end-of-life arrangements so nobody is forced to guess or abide by the state’s decisions regarding your assets. Having a will or a similar tool makes your death much easier on loved ones.

6. How long do you have to file probate after death?

In most states, you can begin probate immediately after a person dies. Some states require waiting a few days before taking action. However, because people are often dealing with their grief when they lose a loved one, taking immediate action can be difficult. The length of time you have to file probate varies from state to state. Some states have no statute of limitations, while others require you to do it within four or five years. If you have concerns about timelines and other issues related to a loved one’s estate, you should contact an attorney.

7. Can a Personal Representative of a will sell property without all beneficiaries approving?

The simplest answer to this question is “it depends on the will.” Unless the will specifically forbids the personal representative from selling property without permission, they are legally permitted to do so. However, if the court has entered in to the arrangement, the right to sell property might also be limited. If any of the beneficiaries object to the sale of property they can file a motion with the court to prevent the sale or have the arrangements altered in some other manner.

8. Can an estate be administered with a missing heir?

It is possible to administer an estate when an heir is missing. It might also be possible for the estate’s personal representative to deposit the share of a missing heir into the registry of the court after the property has been sold.Each state has its own probate laws detailing what to do if an heir is missing and no one knows how or where to find him, but in general, the administering of the estate moves forward, as long as all personal representatives have made a genuine effort to find the missing individual.

9. Is Summary Administration always the better option when available?

No. Summary Administration is an option available to small estates or estates that go to probate years after a person’s death. In Summary Administration, a personal representative is not appointed by the court, which means there is limited ability to inquire about unknown assets – something that could result in the loss of an asset. Other reasons Summary Administration might not be the best option include:

  • When a wrongful death lawsuit in the works
  • When there are Federal Tax liens (IRS) or back taxes owed
  • Property is in foreclosure
  • There are rent payments which need to be deposited asap

10. Why is a title search/review important in a real estate transaction?

A title search or review is important because there is so much that happens during a real estate transaction. Once you’ve found property to purchase, , you need to make sure the title to the property is unobstructed and thereby free and clear to be passed on to you. Without clear title, the real estate transaction could easily fall through and you could lose money and/or be emotionally disappointed. Thorough title searches go back decades and examine the chain of ownership on a property.

11. Do I need title insurance?

In most cases, a lender will insist on title insurance. Title insurance provides protection to the insured so he or she does not incur a financial loss related to the ownership of a property. Though a title company will perform a search or review when property is being sold, it’s possible for an as-yet-undiscovered issue to cloud the ownership of the property years after the purchase. A title defect that arises after a loan closing could trigger a variety of legal costs and possibly result in the loss of your property and the money you’ve put in it.

12. Why is an attorney important in a real estate transaction?

Though an attorney isn’t legally required for most real estate transactions, having one represent you can prevent a number of problems. Real estate transactions are often the largest a person will make in his or her lifetime. An attorney can help with title searches, reviewing real estate contracts, help you apply for title insurance, assist you in identifying and remedying issues with the property, and accompany you to the closing of the sale. Your attorney will work to ensure the complex process of buying and selling real estate goes as smoothly as possible for you.

13. Why do parents with minors need a will?

A will provides legally binding instructions for how to handle one’s estate in the event of their death. It also ensure that a parents’ wishes for their children are honored and it protects the interests of those children.Having a will ensures that your chosen appointee will legally have the right to care for your child and manage his or her money once you are gone.A will establishes guardianship on behalf of your child and ensures that even in a worst case scenario where you are not around to see it, your child has the best life possible.

14. What is a power of attorney?

Power of attorney is the legal written authorization to represent or act on another’s behalf in private affairs, business, or some other legal matter, possibly against the wishes of the other. Granting power of attorney to someone helps you establish security for your own well-being in the event you are unable to make decisions for yourself. You should choose to assign power of attorney only to someone you trust. Usually this is a spouse, adult child, parent, or other close family member.

15. What is the difference between a Power of Attorney and a guardianship?

Power of attorney and guardianship have similar functions, but they do differ. Power of attorney is assigned of your own free will, whereas guardianship is appointed by the court. As a matter of fact, courts have little to nothing to do with power of attorney unless it is called into question. Guardianship, on the other hand, involves the court every step of the way. It begins when someone petitions the court requesting assistance. If a person is deemed unable to care for him or herself, a guardian is appointed and must provide updates to the court on an ongoing basis.