FREQUENTLY ASKED QUESTIONS
What is a Living Will?
A living will, despite its name, isn't at all like the wills that people use to leave the property at their death. A living will also called an advance directive, is a document that lets you state your wishes for end-of-life medical care, if you become unable to communicate your decisions. It has no power after death. Advance directives aren't just for older adults. Unforeseen end-of-life situations can happen at any age, so it's important for all adults to prepare these documents.
The unexpected COVID-19 pandemic is a perfect example. People of all ages have suffered, and many have passed unexpectedly. By planning ahead, you can get the medical care you want, avoid unnecessary suffering, and relieve caregivers of decision-making burdens during moments of crisis or grief. You also help reduce confusion or disagreement about the choices you would want people to
make on your behalf. We are here to offer peace of mind to you and your family while you are alive and to your loved ones after you have passed. If you do not currently have an estate plan, we are here to guide you and help craft a plan that will protect and serve you and your loved ones best.
If I am no longer able to serve as Power of Attorney (POA) and Executor for a friend, How do I undo
these roles? Can I just write a letter? Or do I need a lawyer?
If your friend is alive and has the capacity, resigning your position as POA is as simple as informing the principal (your friend) that you don’t want to serve anymore. The POA document might set out a specific procedure that you should follow, but if not, you can usually just give the principal written notice. However, if your friend is incapacitated and incapable of understanding, most states allow you to deliver the notice to their guardian or the successor agent instead. Hopefully, your friend named a successor agent in her POA document. As far as relieving yourself of the Executor position, there’s nothing to do until the friend passes away. At that point, if you wish to resign, you must file a petition with the Court seeking permission to resign.
In the petition for permission to resign as executor, the petitioner (you) must demonstrate “good cause”, and the decision of whether the executor will be permitted to resign rests with the Court. The Court will evaluate whether the executor’s request to resign is in the best interests of the estate. If the executor is unable to establish that the resignation is in the best interests of the estate, the Court may deny the request. Although these procedures may be done without an attorney, we highly encourage seeking legal advice. With these types of processes, you want to make sure everything is done correctly!
What if the people don’t want the things, I’m giving them in my will like my CD collection?
If it can be sold, then the proceeds can be given to the beneficiary. If it is worthless monetarily then the the beneficiary can disclaim their inheritance and it would go to the residuary estate. You could also donate unwanted items.
What is the easiest way for my family to inherit my property?
The number one reason to establish a trust is to allow your loved ones to inherit your real property in the easiest way possible. Property that is in a trust will be controlled by the successor trustee, who is chosen by you. Your trustee can directly transfer the property to your loved ones.
This process is quicker than probate and will avoid long, drawn-out court processes.
Remember, any estate valued over the state minimum is subject to probate, so most people will need a trust if they wish to avoid court involvement altogether.
If I have a Will, how do I make sure my family stays out of court (probate) after I pass?
Unfortunately, even if you have a will, your heirs will still need to start a case with the localprobate court to carry out your final wishes. Here is how it will go:
1. A judge will need to see your will and ensure that its valid, and then he or she will officiallyallow your named Executor to execute your wishes.
2. From there, your real estate will be inventoried and appraised.
3. Next, outstanding debts will have to be paid by your estate before the probate court distribute property.
Besides your family paying your debts, this process can take between 9 to 18 months, or even longer! The best way to make sure your family stays out of court is to create a trust and transfer your assets and belongings into the name of the trust.
What if I pass away without a Will or Trust?
If you pass away without having a will (known as intestate), there are state laws that dictate who is the "next of kin" and who can be appointed to administer distributing your property. Unfortunately, the people your state chooses may not be the individuals that you want to inherit or control your hard-earned assets. Finding these heirs and determining how much they stand to inherit according to such laws adds additional time and expense to an already arduous process.
So we recommend you look into what your state dictates will happen when you pass. If you do not like the State’s plan, you must create your own plan to control how your hard earned assets will pass.
What happens to my money while my estate goes through probate, can my family
access it to pay off any of my funeral expenses and outstanding debt?
If your financial accounts do not have properly named beneficiaries and an estate goes into probate, your money will be held up until a judge gives your family permission to access it, which can take upas well. This means your bank accounts will be frozen and your family will have no access to your funds. Your loved ones will be responsible for all the final debts that you have, including costs to settle your final affairs, bills, taxes, medical bills, mortgage payments, and funeral costs. Funds held in probate will not be released to cover any of these expenses until the probate judge allows, which as mentioned above could take a long time.
My wife and I want to adopt a child. Do we have to wait until we have adopted a child before we can move forward with estate planning?
Your estate planning does NOT need to wait until you adopt because a plan can be drafted now that includes language for your future heirs/children. The main thing to keep in mind is that if you dont have a plan for your assets, the state has a plan for you. If you are ok with your state's plan (you should be able to google it), then there's less pressure to do any planning for your assets. But keep in mind the state's plan requires a probate process which can get expensive and be time consuming.
Either way, I would absolutely recommend you do planning ASAP around health care planning - powers of attorney, health care proxies, etc. Health care planning will avoid potential costly and drawn out court processes should you need a guardian in the event of your incapacity. A friend of mine's wife just suffered a stroke. They were "young" and did not have any plans in place. It was quite an ordeal for him to get guardianship over her after she became incapacitated.
So we can tailor the plan to your specific needs and ofcourse leave room for upgrades/changes as your family grows and changes.
If you'd like to discuss more, we can schedule a 15 minute phone call. Maybe that will help you decide?
How do I talk to my family about getting an estate plan (death is a taboo
subject for them)?
We understand talking about an estate plan can be hard for some people. For the
people that you love who are resistant to talk about these issues, we think it best if
you come to them from a vulnerable place, not from a place of any sort of
judgment. Start the conversation off with your own wishes. For example, “Mom,
I would like to be cremated when I pass away. What is your preference.” Or
“Dad, I’m making a plan to protect my kids in the future, can I help you with your
What do I do if I have minor children but the people I want to name as guardians live out of state from me?
This is so important to plan for. You need to talk to a lawyer who can put in
place a children’s guardian plan. There are several steps that need to be put
into place to properly name guardians, one of which requires a valid Will.
But we also recommend doing additional nominations for short and long-
Imagine this awful scenario: You are out on a date and left the kids home
with a babysitter. You don’t make it home that night. The babysitter
doesn’t know what to do so she calls the police. When the police arrive,
they won’t have any choice but to call child protective services to look after
the kids – putting your kids temporarily into the foster care system until a
guardian can be appointed. We know this is NOT what you would want.
And the solution is simple if you plan ahead with a children’s guardian plan
to avoid such a scenario.
Is a handwritten will good enough if you are in a second (or more)
If you are in a second (or more) marriage situation and you have children from a prior marriage or your partner has children from a prior marriage, then it’s critically important for you to work with a lawyer to do your estate plan. Blended families are notorious for estate disputes and conflict if not done properly.
Trying to plan for this scenario without the help of a professional could be setting up your kids (and your survivingspouse) for a nightmare. Working with an experienced estate planningattorney can help you strategize to keep your loved ones out of conflict and set things up in a way that is good for everybody.
What are digital assests?
Most people now-a-days have some sort of digital assets since it has become the norm to store and conduct financial business in cell phones, laptops, PCs, and the cloud. The definition of digital assets is always expanding so just remember ANY content, in any format, that is stored online or digitally and provides “value” to you and/or your business can be considered a digital asset. In addition, there is often confusion surrounding the terms “digital assets” and “cryptocurrency” as they are relatively new ideas. Think of it this way: Cryptocurrency is a type of digital asset, but a digital asset is not necessarily cryptocurrency. The definition of digital assets is always expanding so just remember ANY content, in any format, that is stored online or digitally and provides “value” to you and/or your business can be considered a digital asset.
Do I have any digital assets?
Here is a quick run-down of some digital assets you may have:
* Personal and business email accounts
* Social media (Instagram, Facebook, LinkedIn, WhatsApp, etc.)
* Online financial accounts and apps
* Cloud accounts and information
* Cryptocurrencies, such as Bitcoin, Dogecoin, and Tether
* Non-fungible tokens (NFTs)
* Personal and business websites
* Digital files, photos, and videos
* Digital rights and access to literary, musical composition, motion picture, or theatrical works
* Online blog content
* Online video channels especially where the content is monetized.
This list is not exhaustive so check with your estate planning attorney for a more refined list dedicated to your particular case.
Most people now-a-days have some sort of digital assets since it has become the norm to store and conduct financial business in cell phones, laptops, PCs, and the cloud. Email, social media, digital files & photos are all considered digital assets. This list is not exhaustive so check with your estate planning attorney for a more refined list dedicated to your particular case.
Don't my digital assets automatically go to my beneficiaries?
No, in fact accessing your digital assets properly may not be easy or even possible for your beneficiaries if your estate plan doesn't catalog your digital assets accurately. Think of it: precious family pictures, files and videos, and personal social media accounts could be lost forever, and your family may not receive all the wealth you would like to leave them. If you own a business or cryptocurrency, it gets even more problematic. However, there are steps you can take that will help you begin to protect, organize, and take control of your digital assets and build your digital legacy. Contact your attorney for more detailed information on how you can protect your digital assets and cryptocurrency.
Is there anything I can do at home to protect my digital assets and to make sure my loved ones receive them?
Make a master list of all digitally stored content and property so your beneficiaries know what you have and where they can find it:
Include passwords, online accounts (including email and social media accounts) and digital property (including website names, cryptocurrency, and money transfer apps). Put your list in a safe location and make sure your beneficiaries know how to access it.
* Tip: FYI: Inexpensive password management apps such as LastPass can help simplify this effort.
Remember the safest thing to do is connect with an attorney and create an estate plan, especially if you have a business or own cryptocurrency.
Are there any important laws I should know regarding my digital assets?
When working with an estate planning attorney: Update your estate plan (wills, powers of attorney, and any trusts) language to include giving lawful consent for financial providers to disclose the contents of your electronic communications to the people of your choosing.
Reminder: When your attorney drafts your estate planning documents, clearly document them to allow your fiduciaries to bypass, reset, or recover your passwords.
Remember digital assets are still a relatively new phenomenon, so the laws that address them are changing all the time. When you connect with your attorney talk about the steps you can take now and check in regularly to update your estate plan to accommodate any changes in the law or in your digital property.
What is a Power of Attorney (POA)
A legal document where you give another individual the power to make important legal or financial decisions on your behalf.
Why do I need a Power of Attorney if I am an unmarried couple.
When you are in a partnership that is not recognized by law through marriage, the rights that are afforded married couples with regards to medical incapacity are often not recognized for unmarried couples. A POA document can allow another person (such as a trusted friend or romantic partner) to handle your financial matters and/or make legal decisions on your behalf in the event you become incapacitated.
What is a health are proxy?
A health care proxy (also known as a medical power of attorney in some states) allows you to appoint a health care agent — someone you trust - to make health care decisions for you if you are unable to make decisions for yourself. In most cases, in order for the health care proxy to become effective, two doctors must confer that you are unable to make your own decisions.
What is a living will?
A living will* states how you want your passing to go. For example: Do you want to be on life support? At what point should life support be discontinued? If you want all medical resources available to you until there's no more, than that would be stated in your living will. If you prefer not to live in a vegetative state, the living will notifies your doctors and your agent exactly what your wishes are.
*NOT to be confused with a last will and testament.