Wills and Living Wills Article


Staying in Charge of Your Future

You can only stay in charge of your future affairs if you plan ahead. Tax laws allow you to build a retirement nest egg in special tax-deferred accounts. The law allows you to prepare written instructions regarding medical treatment in case you become incapacitated. It allows you to appoint someone to make decisions for you if it ever becomes necessary. And it allows you to decide who will inherit your property someday. But the right to have your wishes carried out later is worthless unless you act now - while you still can.


Decide now who you want to help you in case you become disabled. Meet with an estate planning attorney to review your goals and wishes. The attorney can prepare powers of attorney for you to sign that handle health, mental health, and/or financial matters.


The financial power of attorney can be effective now or upon disability. The health power of attorney allows the agent to act when you are unable to communicate your wishes. The mental health power of attorney allows an agent to act once a doctor has determined that you are unable to make your own mental health decisions.


Make sure that you understand all of the terms before signing a power of attorney. Be absolutely certain that your chosen agent is both capable and trustworthy. Despite your trust and thinking it cannot happen to you, there are cases of family members stealing.


If someone’s address has changed, DO NOT write on the document. Simply note it on a separate page called “contact information.”


All powers of attorney are void at death. Powers of attorney can also be revoked. If your agent needs to start acting for you, you may want to record your financial power of attorney in your county recorder’s office.


The attorney can customize the paperwork so that the following issues are addressed:

  1. Who is to make decisions if you cannot (please list 2 or 3)
  2. Who you do not ever want to make decisions if you cannot (only if appropriate)
  3. Is the agent able to act alone or does the agent have a co-agent; if co-agent, can either act or do they both have to agree
  4. What powers you are giving your agent/fiduciary
  5. What powers you are NOT giving your agent/fiduciary
  6. What you DO or DO NOT want regarding your care
  7. Who has authority to pay your bills and expenses
  8. Whether you want your agent/fiduciary to be paid for services rendered and/or costs incurred
  9. Statement of your goals/wishes/values

Be careful when deciding who you want to name as your agent. Make sure your agent realizes there can be criminal and civil penalties for abuse of the power of attorney. If you have a power of attorney and realize that money has been stolen from you by your agent, please call Adult Protective Service and/or the police. Consider revoking that power of attorney.

Go over all gifts that you want to make to your agent with your advisor(s). Please realize that unless you specifically allow gifting, your agent cannot make gifts on your behalf.


If you choose not to sign powers of attorney and then become disabled, someone will need to ask the Court to become Guardian (makes decisions regarding the person) and /or Conservator (decisions about assets) on your behalf.

You can also make choices on organ donation and autopsy. You may want to pre-arrange final arrangements to authorize cremation so that no one has to sign after your death (especially if your heirs are not in agreement with cremation or could be hard to reach).


Make sure the paperwork is properly executed (sign in front of witnesses and notary public as appropriate).

DO NOT add someone as joint tenant to your account if you want someone to be able to help you write checks; instead name them as power of attorney on your account. This way there is accountability by the agent and the agent must spend the money on your behalf. There have been problems of misuse by the joint owner and problems when the joint owner is sued.


Comments:

QUESTIONS

  • Thank you for taking the time to answer my question. I have 2 siblings and a step sibling who are sole beneficiaries of a trust. My step dad passed almost a year ago. We have heard nothing about the status of the trust. All of his personal property has been sold and presumably those funds have been added to the trust. None of us are contesting the distribution of funds. How long should it generally take for us to hear when we may receive our inheritance and how can I follow up on the courts progress? Kindly, Sharon D.
  • If a person dies and does not leave a will, can a family member take over the dead persons home.
  • My husband died and our Grant Deed for our property shows he has a 30% tenants in common share of the home. I have 70%. He further has a will that states he leaves any properties to me. He also has a son that will not dispute this. Do I need to go to probate since his 30% value in the home is minimal (K40-45K net value). Or what form can be filed to correct the Grant deed to reflect my full ownership?
  • My parents have passed away and in their Trust and Wills I am listed as their representative. What do I have to do in order to sell their properties?
  • What makes a Will valid in the state of Arizona
  • How do I go about preparing and recording a beneficiary deed for my mother's home which is now solely in her name? She wishes to leave her property to my siblings and myself upon her death.
  • Is there an agency that can help prepare a trust? I have a friend that is terminal (still mentally competent) that has not prepared a will or trust. She is on disability and low income.
  • what does it mean when stated in a will "and hereby revoke any and all wills and Codicils heretofore made by me."
  • Does a notorized statement overide a power of attorney
  • My grandfather is 91 and not expected to live much longer. He has a house valued at 60K but he owes 50K on it. The house is deeded to "the trust of..." Who gets the house upon his death and also, who is responsible for maintaining the payments? I am the executor of his will and current POA for him but there is no special provision regarding real estate. He does have a trust set up and we only have the "abstract of trust" that states who the trustee is upon his death.

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