Question 1

What is a will?

Accepted Answer

A will is a legal document that generally tells the court who will serve as your personal representative of your estate, how your property in your estate will be disposed of, and for parents of minor children, who will serve as a guardian.  A will does not govern non-probate transfers or property transferred into a trust during one’s lifetime.

Question 2

Why update your will?

Accepted Answer

There are many reasons a person may wish to update their will.  Some good reasons to update your will or your general estate plan can include:

• Changing the people named in your will in the event of a death, a birth of a child, marriage or divorce, and so forth
 • Changing a guardian named for minor children
 • Changes to your assets, such as large increases in wealth, receipt of a large inheritance, or if you simply have acquired new property that you would like to specifically leave to someone or if you no longer own property that you have left to someone in your will
 • Changing a beneficiary of a specific gift
 • Changes to burial or cremation wishes
 • Changes to support needs for people or pets in your life or new care responsibilities for an aging parent or a minor or adult child
 • Change of residence or move to a new state
 • Retirement

It’s generally good to review your will and your overall estate plan after any big life events and at least every few years to ensure your plan continues to work for your current circumstances. Big life events can include marriages, divorces, births, deaths, acquiring or losing significant property, experiencing big health issues, and so forth.

Question 3

How to update your will?

Accepted Answer

A will can be updated in two ways, by codicil or by revoking your prior will and creating an entirely new will.

A codicil is basically an amendment to your will.  A codicil generally works better for small changes to an existing will.

A new will may be more appropriate if the changes are more numerous, larger, or more complicated.  In addition, when you have multiple codicils it can be more difficult to keep track of changes and it may be time to redo the document as a whole for greater clarity.

Question 4

What is a trust?

Accepted Answer

A trust is an agreement between a “settlor,” a “trustee,” and a “beneficiary” to hold property “in trust” for the benefit of one or more beneficiaries. The settlor places property into a trust.  The trustee has special duties to protect and prudently manage the property in the trust. The beneficiaries are the individuals who benefit from the management of the property. For a revocable living trust, a couple or individual will often serve as settlor, trustee, and beneficiary all at the same time, retaining total control over their property during their lifetime.

Question 5

What are the benefits of a trust?

Accepted Answer

There are a number of benefits provided by a trust, which may include:

• Can allow your family to administer your estate outside of a court process. 
 • Provides for a prompt administration compared with the average 6-18 months of a probate court proceeding
 • Maintains privacy for the family and the details of your estate assets, which can protect family from being targets.
 • Trust makes it easy to protect assets in the event of incapacity by naming successor trustees who can step in immediately to manage assets in the trust. 
 • Can be used to protect children from themselves by preventing them from receiving property outright at too young an age while allowing for the trustee to still provide for their care, comfort, and education as needed. 
 • Can be used to protect assets and a beneficiary’s inheritance from creditors, lawsuits, bankruptcies, or divorce

A trust can be used as a vehicle to pass property to your beneficiaries promptly, privately, outside of court proceedings, and with minimal expense to your estate. It can also more easily protect for incapacity issues.  Some trusts can be used to accomplish other objectives such as tax planning, meeting needs of specific beneficiaries, or protecting a beneficiary’s inheritance from creditors, lawsuits, bankruptcies, imprudent financial management, or divorce.

Question 6

What is a “fiduciary” or “agent”?

Accepted Answer

A fiduciary or agent is someone who has been given authority to act on your behalf for your benefit.

Question 7

What is a healthcare directive?

Accepted Answer

A healthcare directive is generally made up of two documents – a healthcare power of attorney and a living will. The healthcare power of attorney gives authority to a designated person to act as your agent to make healthcare decisions on your behalf. It may also include HIPPA releases to allow your agent to talk to your doctors or gather your health information from one medical provider to share with another provider.   A living will is a document that gives instructions to your health care agent and your medical providers about how you want certain healthcare decisions to be made under certain circumstances. For instance, it may provide for a Do Not Resuscitate direction.

Question 8

What is probate?

Accepted Answer

A probate refers to the legal court process a decedent’s assets must pass through in order to be transferred after a person’s death.  It is essentially a lawsuit, usually filed by the family, for the benefit of the deceased person’s creditors.  It requires a personal representative to complete an inventory of the estate property, give notice to creditors, pay taxes, creditor claims and administration expenses, and then distribute what is left over to any legal heirs of the deceased person. Probate can be costly, public, and involve significant delay.  If an asset is not discovered during probate, it can also be lost to the Department of Unclaimed Property.

Question 9

What is a durable financial power of attorney?

Accepted Answer

A durable financial power of attorney is a legal document giving authority to a designated person to act as your agent to make legal and financial decisions on your behalf. Powers of attorney can be “general” or “durable.”  A general power of attorney ends upon your death or when you become incapacitated, unless it rescinded by you before that time. A durable power of attorney remains in effect even when you become incapacitated, but ends upon your death. The power of attorney can be effective immediately upon signing, or “springing,” meaning it only takes effect upon a person’s incapacity.  The powers can also be limited in scope to only certain matters or can be very broad, depending on how the document is written. It is helpful to have the advice or help of a lawyer in preparing your power of attorney to make informed decisions about the powers you are giving and how you may want to limit the power in any way.

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