This is the legal document that provides for the transition of property owned by a deceased individual to persons named in his or her last Will. The Will is usually prepared by a law office and there are legal requirements to make it valid. It must be signed by the make in the presence of two disinterested persons, people who do not receive anything through the Will and it must be signed and sworn to by a notary public. If these requirements are not met, the Will most probably would not be valid and fail to transfer property as intended by the decedent.

The Will only transfers property, whether real estate or personal property, in the name of the deceased person alone. This means that any property with either a joint owner or a listed beneficiary on it is not controlled by the Will, but rather, ownership passes outside the Will at the moment of death to the person so named.

Reasons for having a Will:

1. One significant reason for having a Will as opposed to not having one is that is memorializes the wishes of the person legally creating a document for the whole world to see. It eliminates guess work and provides certainty as to the deceased person’s wishes.
2. Further, it puts a person or persons in charge of settling the affairs of the estate who the deceased person knows and trusts to complete that task.
3. Another reason is that having a Will to settle the affairs of an estate saves time and money as opposed to having no Will which often is more costly, more complicated in sorting out who is entitled to the property of the estate and always more time consuming.
4. A Will can make provisions for relatives or children with special needs and detail the wishes of the decedent to his or her personal representative settling the affairs in that regard.
5. Where minor children are involved, a Will can arrange to have money held in a testamentary trust where in the body of the Will the decedent can indicate that if any child has not attained a certain age beyond the current legal age of adulthood of 18 years, then a trustee will hold, manage and provide for that child’s well being, health, education and needs as the same may require in the discretion of the trustee until the child attains a certain age beyond the legal age of adult capacity of 18 which may be 21, 25, or any age selected by the decedent.
6. If there is a divorce or a second marriage, a Will defines the thinking and disposition of assets of the decedent which otherwise might require litigation in the extreme to determine who shares in an estate.

These are just some of the reasons to have Will to help the family and survivors of the decedent settle the affairs of the estate more easily than not having one in place.

POWER OF ATTORNEY:

A power of attorney is probably used more these days than ever before for several reasons, not the least of which, is that when someone is not able to act for himself in the matter of managing assets, the entity in possession of the assets whether a bank or financial institution wants to make certain that the agent appearing for the owner is legally empowered to act so that no misappropriation of funds or property results.

A person creates the power of attorney document during their lifetime when they have legal capacity to name a person to be their agent when they either suffer a disability or are unable to act for themselves usually due to some mental incapacity in their business affairs relative to a and property.However, the big advantage occurs when that person dies in that a successor trustee is appointed almost immediately to settle the affairs of the trust.

The power of attorney permits the agent so named to do banking, to pay bills, to make claims on behalf of the principal, to make investments, to file income tax returns, to arrange for hospital stays or nursing home care, to become their HIPPA agent to deal with doctors, hospitals and medical providers which otherwise would not be accessible, to do anything and everything that the principal would otherwise be able to do to conduct business affairs.

The document declares that it is A DURABLE POWER OF ATTORNEY which means that the power given to the agent survives any incapacity of the maker or principal. So, if a maker loses capacity to act for himself or herself legally, the power of attorney survives that incapacity and continues. This obviates the need of going to the Probate Court and petitioning to have a conservator of the principal’s estate named to perform these tasks.

It saves a tremendous amount of time and money.

HEALTH CARE PROXY:

This is a separate document in the estate plan that names a person to make health care decisions for a person if that person is either too ill or not clear thinking to participate in options for care with their physician or other health care providers.

The power is not used very frequently because your doctor does not need to confer with you regarding normal decisions to keep you healthy and well.

However, in the case where someone is ill for a long period of time and is undergoing treatment by a physician or a medical care facility and there is an option for treatment or care that the physician would normally discuss with the patient, and if that patient is either too sick or not clear thinking enough to participate in the decision making process, then the health care agent will substitute and discuss the option with the physician or health care provider.

The document is signed by the maker in the presence of two witnesses much like a Will.

The health care proxy, when made by a person before he or she suffers from some incapacity, saves the family from having to go the Probate court to have a guardian appointed legally to deal with the physician or health care provider once that person loses capacity to act.

It saves a tremendous amount of time and money.