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Estate Planning

Frequently Asked Questions

What is Estate Planning?

Estate planning is the advance planning for the protection of your family, assets, and legacy in the event of a crisis that leaves you incapacitated or death.

What is probate?

Probate is the legal process of validating the authenticity of your will and appointing an executor to manage your estate after your death. Once the executor is appointed, he/she may begin the administration of the estate. Each state has a statutory timeframe and process in which the executor must notify creditors, collect, and distribute the assets.

Can a doctor refuse to comply with the terms of my medical directive?

A doctor may refuse to comply with the instructions in the medical directive if they consider the instructions medically ineffective. However, they may be legally obligated to transfer you to a provider who will comply with your wishes.

What happens if I die without a will?

If you die without a will, the state’s laws of intestacy govern what happens to your minor children and how your assets are distributed. The court will appoint an executor to manage the distribution of your assets and a guardian of the minor children.

Can I draft my own will?

There are many websites that offer Do It Yourself templates. Generally, DIY wills are not state specific and therefore, may not be a valid will. Dying with an invalid will is the same as dying without a will. The laws vary from state to state regarding the requirements for executing a will and who may or may not act as a witness and sign the will. Improper execution of a will may invalidate the entire will or prevent the intended beneficiary from receiving his share of the inheritance. Also, DIY wills have an increased likelihood of being contested which extends the probate process and increases the costs. A will clearly drafted and executed by a licensed attorney is the best defense against potential litigation.

If I execute a power of attorney, do I lose my authority to make decisions?

No. You maintain your authority to legally make decisions as long as you have the legal capacity to do so.

When does a power of attorney become effective?

Generally, a power of attorney becomes effective immediately upon execution. However, the you may execute a “springing power of attorney” which does not become effective until a specified date or the occurrence of a future event.

Can I revoke my power of attorney?

You can revoke a power of attorney at any time so long as you have the legal capacity to do so.

When does a power of attorney terminate?

A power of attorney terminates immediately upon the grantor’s death; upon the occurrence of an event as stated in the power of attorney; once the stated purpose of the power of attorney has been fulfilled; and unless stated otherwise, if married to the agent at the time of executing the power of attorney, the power of attorney is terminated when a legal action is filed with the court for divorce or legal separation.

What happens if I become incapacitated and don’t have a power of attorney?

If you become incapacitated and do not have a power of attorney, it is likely that the court will appoint a conservator, or guardian. The responsibilities and powers of the conservator are governed by state statutes.

What happens if the beneficiaries on my insurance policy are not the same as the heirs in my will?

Beneficiary designations on insurance policies, retirement accounts, annuities, etc. supersede the terms of the will and generally and generally, are not subject to probate. Therefore, those designated as beneficiaries on your insurance policy will get the benefits from the policy and those listed in the will inherit in accordance with the terms of the will.

What happens to my jointly owned property if I die?

What happens to your jointly owned property depends on how the property is owned. Legal ownership supersedes your will. The interest in jointly owned property with rights to survivorship is immediately transferred to the surviving co-owner(s) upon your death. The interest in property owned by tenants in common is transferred to your estate upon your death. Therefore, it is important to understand how your assets are titled.

How can I make sure my assets are protected and gets distributed to the intended people?

Create a comprehensive estate plan. Reed Sherman Law Firm can create a comprehensive estate plan to meet your unique needs. Give us a call at 775-4Kemlia or contact us.