Power of Attorney (“POAs”)
The two major categories of POAs are:
| Durable Financial POA | Advanced Health Care Directive |
| Those that are created to be used by someone to make financial decisions on your behalf, and | Those created to be used by someone to make medical decisions on your behalf. |
Delegating authority to someone to act on your behalf should you become unable to do so is an extremely important aspect of estate planning. During your lifetime, circumstances might arise when you can’t represent yourself. A power of attorney (“POA”) is a legal document that allows you, the “principal”, to authorize another individual, the “agent” or “attorney-in-fact”, to act on your behalf. You can, of course, revoke any POA at any time in writing. Note that all POAs are revoked at the death of the principal. In addition, unless otherwise specifically provided in the POA document itself, all powers of attorney are automatically revoked in the event of the incapacity of the principal. If the POA contains language specifically authorizing the agent to act during the incapacity of the principal, then the POA is known as a “durable” power of attorney, or “DPOA”. Note that a financial POA will only be effective for assets held in the principal’s name.
| Starts at: | $199.00 |
This information is for general use and is not intended as full and comprehensive instruction. This is intended as an information tool to assist you. For additional information, we recommend you seek legal advice. If you need to consult with an attorney, we will be able to provide you with a referral with one of our collaborating attorneys
Living Will (Advance Health Care Directive)
Also known as a “medical power of attorney or living will”, this category of power of attorney is designed to enable your agent to make medically related decisions for you when you are unable to do so for yourself. By necessity, this power of attorney must all be durable powers of attorney in order to be effective when needed. In addition, advanced health care directives have also evolved to typically contain additional provisions and directions to your agent related to your right to withhold certain medical treatments in certain circumstances, end-of-life decisions (so-called “living will” provisions), burial arrangements, and your preferences as to organ donation.
Final disposition instructions
This document will let your survivors know how you want your remains to be handled after you die, whether you want burial or cremation, what your wishes for a ceremony are, and whether you have already made free arrangements at a funeral home
HIPAA Waiver
Some of the medically-related issues above under the heading “Advanced Health Care Directive” require that your agent have access to your medical information. Due to recent legislation* protecting an individual’s privacy in connection with these records, your agent will need a document stating that in these specific cases you have waived this right to privacy so that your agent can make informed decisions on your behalf. *Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the Confidentiality of Medical Information Act (CMIA)
Health Care Power of Attorney
Appoint a trusted person who will ensure your health care wishes are respected.
Why Should I Make a Living Will?
It is important that your family members and care providers know your preferences for end-of-life care. When you have a Living Will, you’re making your wishes clear. If you haven’t put your choices in writing, your family members may be forced to make tough decisions for you.
Will vs. Living Will?
A Living Will concerns medical decisions to be made while you are alive whereas a Will typically concerns the distribution of your assets and guardianship of your minor children after you pass away.
Living Will vs. Durable Power of Attorney?
A Living Will typically has a narrower focus and directly communicates your end-of-life healthcare decisions, while a Durable Power of Attorney grants authority to an agent to make decisions and take action on your behalf, such as managing your finances, your real estate, or your business. Similar to a Living Will, a Durable Power of Attorney is valid even after you are no longer able to communicate or make decisions on your own.
| Single Individual | Standard Fees $599.99 |
| Couple | $699.99 |
This information is for general use and is not intended as full and comprehensive instruction. This is intended as an information tool to assist you. For additional information, we recommend you seek legal advice. If you need to consult with an attorney, we will be able to provide you with a referral with one of our collaborating attorneys
Will
A will sometimes called a “last will and testament,” is a document that states your final wishes. It is read by a county court after your death, and the court makes sure that your final wishes are carried out. If you don’t make a will before your death, state law will determine who gets your property and the judge may decide who will raise your children.
What a Will Does
Most people use a will to leave instructions about what should happen to their property after they die. However, you can also use a will to:
Here is a quick comparison of what wills and living trusts can do. Read below for details about each characteristic.
| Revocable Living Trusts | Wills | |
| Name beneficiaries for property | X | X |
| Leave property to young children | X | Maybe (see below) |
| Revise your document | X | X |
| Avoid probate | X | |
| Keep privacy after death | X | |
| Requires a notary public | X | |
| Requires transfer of property | X | |
| Protection from court challenges | X | |
| Avoid a conservatorship | X | |
| Name guardians for children | X | |
| Name property managers for children’s property | X | |
| Name an executor | X | |
| Instruct how taxes and debts should be paid | X | |
| Simple to make | X | |
| Requires witnesses | X | |
| Reduce estate taxes | – | – |
| Leave money to pets | – | – |
| Leave final wishes | – | – |
| Leave passwords for online accounts | – | – |
Leave Property To Young Children
Except for items of little value, children under 18 cannot legally own property. When you leave property to a minor, that property must be managed by an adult – at least until the child turns 18. When leaving property to a minor using a living trust, the trustee manages the property until the child reaches an age determined by you. When leaving property to a minor using a will, you should name an adult to manage the property. Or, use your will to set up a testamentary trust for young children or name a custodian under the Uniform Transfer to Minors Act. If you do not name an adult to manage property left to a minor through your will, the court will name someone to do it after your death.
| Wills | Standard Fees $599.99 |
This information is for general use and is not intended as full and comprehensive instruction. This is intended as an information tool to assist you. For additional information, we recommend you seek legal advice. If you need to consult with an attorney, we will be able to provide you with a referral with one of our collaborating attorneys
Living Trust
The big advantage to making a living trust is that property left through the trust doesn’t have to go through probate court. In a nutshell, probate is the court-supervised process of paying your debts and distributing your property to the people who inherit it.
What Is A Living Trust?
It is ownership interest(s) determined by the terms of the trust.
What Is the Trust Document?
The trust document is a written legal agreement between the trustor and trustee, for the benefit of the trust’s beneficiaries. In most cases for a living trust, the trustor will also be the initial trustee as well as the beneficiary. In the event of the trustor’s death or incapacity, the successor trustee(s) will assume control of the trust assets.
A trustor remains in full control of trust assets during his or her lifetime. Also, there is no change in income tax reporting during the lifetime of the trustor in the case of a straightforward, probate avoidance type living trust. (This will likely not be true in the case of more complex trusts.)
A living trust is generally understood to be a revocable living trust. It is sometimes referred to as a revocable inter vivos (meaning between living parties) trust. A living trust may be amended or revoked by the trustor(s) any time during the trustor’s lifetime as long as the trustor is competent.
A living trust is a mechanism you can use to hold and manage property before and after your death as well as provide how those assets, and the income earned by the assets, will be distributed after your death. In the event of your incapacity, a successor trustee you have named will manage the affairs of the trust for you as beneficiary. A living trust is not subject to probate and therefore all provisions of the trust will remain private.
The trustee is given guidance in certain powers and authority to manage and distribute the trust property in a prudent fashion. The trustee is a party known as a “fiduciary.” A fiduciary is an individual or institution occupying a position of trust and confidence and is subject to strict responsibilities with higher standards of performance than one dealing with his or her own property. Without the trustor’s express written permission, the trustee cannot use trust property for the trustee’s own personal use, benefit, or self-interest. A trustee must hold the trust property solely for the benefit of the beneficiaries of the trust.
All trusts are comprised of three parties
1. the person(s) creating the trust, alternately known as the trustor, grantor, or settlor
2. the person(s) or institution with the legal authority to manage and control the assets held in the trust, known as the trustee; and 3. the person(s), charitable institutions, or other parties who will receive benefits under the trust are known as the beneficiaries
What is a Deed of Trust?
A deed of Trust is utilized by a borrower (trustor) to convey “bare legal” title to the subject property to a neutral party (trustee), in order to secure an obligation (usually the payment of promissory note) payable to a lender (beneficiary). The trustee (usually) a corporation gives instructions to issue a Deed of Reconveyance (when the obligation has been paid in full) or to begin foreclosure proceedings because the trustor is in default on the loan. The trustee is given a “power sale” (non-judicial foreclosure) and proceeds from the trustee’s sale will apply as payment toward the defaulted obligation. These documents are also referred to as “mortgages” or “liens,” and are recorded in the county where the property is located.
The property you transfer into a living trust before your death doesn’t go through probate. The successor trustee — the person you appoint to handle the trust after your death — simply transfers ownership to the beneficiaries you named in the trust. In many cases, the whole process takes only a few weeks, and there are no lawyers or court fees to pay. When all of the property has been transferred to the beneficiaries, the living trust ceases to exist.
How do assets pass at death?
Assets pass according to the terms of the trust and will avoid probate. Note that assets passing by will from an estate to a trust will be subject to probate.
Here is a quick comparison of what wills and living trusts can do. Read below for details about each characteristic.
| Revocable Living Trusts | Wills | |
| Name beneficiaries for property | X | X |
| Leave property to young children | X | Maybe |
| Revise your document | X | X |
| Avoid probate | X | |
| Keep privacy after death | X | |
| Requires a notary public | X | |
| Requires transfer of property | X | |
| Protection from court challenges | X | |
| Avoid a conservatorship | X | |
| Name guardians for children | X | |
| Name property managers for children’s property | X | |
| Name an executor | X | |
| Instruct how taxes and debts should be paid | X | |
| Simple to make | X | |
| Requires witnesses | X | |
| Reduce estate taxes | – | – |
| Leave money to pets | – | – |
| Leave final wishes | – | – |
| Leave passwords for online accounts | – | – |
| Living Trust | Standard Fees $799.00 |
This information is for general use and is not intended as full and comprehensive instruction. This is intended as an information tool to assist you. For additional information, we recommend you seek legal advice. If you need to consult with an attorney, we will be able to provide you with a referral with one of our collaborating attorneys