Estate Planning

The four most common estate planning documents prepared by LexLawLawyers include a power of attorney for health, power of attorney for property, a living will, and a last will and testament. The first three documents affect you while you are alive and the last will and testament affects you after you have passed away. Each is discussed separately below.

LAST WILL AND TESTAMENT

A “last will and testament” is commonly called a “Will” and must be distinguished form a “living will,” which is described later. Your Will would provide for the legal distribution of your financial estate after you pass as expressed in the Will. Oral bequests that conflict with the terms of your Will are ignored.

Upon your death, your Will will be filed with the court and probated before a probate judge to ensure that your wishes are carried out properly. The probate judge appoints as executor the person you nominated in your Will to control the processing of the probate estate in consultation with a probate lawyer. Your executor has broad fiduciary responsibilities that include gathering and protecting your assets, paying all expenses and debts from estate asset, filing tax returns, among other things. Next, the executor files a final report with the probate judge seeking authorization to distribute the remaining assets in accordance with the terms of your Will. Upon approval, the executor distributes the assets to your beneficiaries.

What happens if you should die unexpectedly without executing your last will and testament? Most people are shocked to learn that a probate judge would make all the decisions based on the “intestate succession” laws of your jurisdiction. The judge would appoint an administrator of the judge’s own choosing to inventory the estate and post notices for interested parties. The administrator need not be a family member or even a person known to you. Plus, your estate assets would not be distributed according to your wishes but, instead, distributed according to the intestate succession laws of your state – the order in which your next of kin can inherit. Avoid this potential heartache by executing your last will and testament now.

POWER OF ATTORNEY FOR HEALTH

The power of attorney for health is sometimes called an advance medical directive. This document is an essential part of any individual’s estate plan. This power of attorney springs into action upon your incapacitation.  However, the document must be prepared and signed BEFORE you become incapacitated.

But what happens should you become incapacitated? Who is empowered to make medical decisions on your behalf? No one can predict when a serious illness or catastrophic accident might occur (think highway truck collision). When it does, you may need someone else to speak or make health care decisions for you. If you plan now, you can increase the chances that the medical treatment you get will be the treatment you want. With proper estate planning, you can pre-select someone to be your “health care agent.” Your agent is the person you trust to make health care decisions for you if you are incapacitated and unable to make decisions yourself. These decisions should be based on your personal values and wishes.

No court authorization is required to grant your pre-selected “agent” permission to make medical decisions for you should you become incapacitated. Instead, your agent could take immediate action to protect you and your family. No cost and no delay.

Advanced estate planning today can give you peace of mind – knowing that if something incapacitating were to happen to you, your medical decisions would be honored. LexLaw Lawyers can give you peace of mind by drafting a “power of attorney for health care,” which provides for your pre-selected agent to make medical decisions for you.

If you become incapacitated without a power of attorney, then someone must petition the court for appointment of a guardian to make health care decisions and a conservator to manage your financial assets. Those court proceedings are expensive and deplete your assets. These proceedings consume precious time, especially during an emergency. Frequently, family members disagree who the court should appoint, which may result in family fighting and expensive contested guardianship or conservatorship proceedings. All this can be avoided with the creation of a power of attorney for health.

POWER OF ATTORNEY FOR PROPERTY

The power of attorney for property is sometimes called a “durable” power of attorney. Your appointed agent can control your assets while you are incapacitated. Absent a signed power of attorney, your spouse could be barred from accessing your individual bank account without a court order. Your family needs financial protection should you become incapacitated because of sickness or injury. What happens if you are incapacitated after a devastating vehicle collision and your money is held in your individual bank account? How would the mortgage or rent be paid? Who would make the car payment?  How would your family afford the essentials of life if your money is “locked up” in your bank account and inaccessible? Who would pay for food, clothes, medicine, housing, childcare, etc.? It could cost $2,245 + and several weeks to get a court order granting somebody permission to act on your behalf.

A better strategy is creating a durable power of attorney for property to ensure someone you pre-selected is empowered to access your funds to pay your family’s needs, and to manage your finances when you are unable. No court authorization is required to grant your pre-selected “agent” permission to access your bank account should you become incapacitated. Instead, your agent could take immediate action to protect your family, and access the money needed to get the job done.  No cost and no delay.

Good planning requires you to remember the importance of protecting your family’s financial future should something catastrophic happen to you. Nobody plans to be incapacitated. But accidents, cancer, and other diseases do happen, and good parenting requires you to protect your spouse and child with advanced legal preparation. LexLaw Lawyers are hear to help.

LIVING WILL

A “living will” must be distinguished from a “last will and testament.” Both uses include the term “will,” but they are distinct documents. A “living will” applies while you are alive and the “last will and testament” applies after you have passed away.

A Living Will Declaration provides a basis for you to elect that no extraordinary medical measures be used in prolonging or maintaining your life. The purpose of the Living Will is for you to instruct your physician to withhold or withdraw death-delaying procedures in the event of a terminal condition. Most states grant you the fundamental right to control the decisions relating to the rendering of your own medical care, including the decision to have death delaying procedures withheld or withdrawn in instances of a terminal condition.

It is important to note that death-delaying procedures can be withheld or withdrawn in some jurisdictions only if you are suffering from a “terminal condition.” For example, in Illinois, the term “terminal condition” means an incurable and irreversible condition such that death is imminent, and the application of death-delaying procedures would serve only to prolong the dying process. See Illinois’ Living Will Act, 755 ILCS 35/ et seq.  Check with LexLawLawyers for details in your jurisdiction.