Do I need a will?
Yes. If you don’t have a will, state law will write one for you in the sense that the laws of intestate succession will determine who will receive your property. For example, if you are remarried and still own your premarital home in your individual name, your spouse won’t inherit your house. By intestate succession, your spouse will inherit a life estate but won’t be able to sell your house or refinance it. Your children will inherit it at her death. Your spouse will have the right to live in it or rent it, but not sell it. If you don’t want that to happen, you should have a will specifying what you want to happen to that property at your death.
The same may be true for any other individually owned property. Without a will, that property may not go to the heirs you wish to inherit it. Without a will, your stepchildren may not inherit your property if you want them to inherit because intestate succession does not mention them as heirs. In our changing society with blended families, it is particularly important to have a will.
Yes. If you have minor children and want to appoint someone as their guardian. If you die without a will, the Court will not know your preference for a guardian of your minor children.
Yes. If you want to decide who will administer your estate. If you die without a will, anyone (including your creditors) can be appointed as your personal representative 60 days after your death. Your spouse and your children are preferred by statute as personal representatives, but if they fail to apply in time, strangers could be appointed if they have an interest in your estate.
What is an Advanced Health Care Directive?
An Advanced Health Care Directive is a document that tells your doctor that you do not want to have certain medical procedures performed under certain circumstances. With an Advanced Health Care Directive, you can appoint a person who can speak to your doctor if you are unable to speak for yourself. Without an Advanced Health Care Directive, a doctor may not know your wishes and may feel compelled to perform unwanted medical procedures.
What is a Durable Power of Attorney?
A Durable Power of Attorney is a documents that permits you to designate someone, usually your spouse or child, to act on your behalf. Durable means that it will still be effective even if you become mentally and/or physically incapacitated. It will permit your attorney in fact (the term for the person you appoint) to handle financial decisions and also make medical decisions. It is often needed by children of elderly parents when they can no longer live in their homes and need to move to a retirement or nursing home. The nursing home will insist that the elderly parent name someone to make decisions for them in the event that they can no longer make those decisions. Durable powers of attorney are simple and inexpensive documents. We recommend that all adults, regardless of age, have a durable power of attorney. Signing a durable power of attorney will ordinarily eliminate the need for a guardianship if the attorney in fact remains willing to make those decisions for an infirm person.
What is Probate?
Probate is the process of administering estates. If the decedent had a will, it requires the executor to file the will, open the estate and ensure that the appropriate beneficiaries receive their portion of the estate. If the decedent died without a will, a close relative, usually the spouse or child, can petition to be appointed the personal representative and open the estate. We can explain the situations when it is unnecessary to open an estate. For example, if the decedent owned all of his property jointly with his spouse, then it is unnecessary to open his estate. There are also cases even when a decedent did not have a spouse but where the estate is valued under $30,000.00 that it is unnecessary to open an estate. However, even if an estate does not have to be opened, there are forms that need to be filed with the Register of Wills.
There are a series of documents that are required by the Register of Wills to be filed during the first year after the decedent dies. They are not terribly complicated, but are made easier to file with the assistance of our trained staff. We can answer your important questions about how to make an orderly transition of the decedent’s property to his loved ones. We wil be happy to review your estate and explain how to keep probate costs down.
Who needs a Guardianship?
Any person who is too ill or infirm to make financial decision and who has not already executed a durable power of attorney will need a guardianship. We are finding that many people today have not executed powers of attorney. Often they have outlived their spouses and need to have one of their children, or a niece or nephew, make important decisions about their care and finances. Sometimes a close friend or neighbor will serve as the guardian. The person seeking guardianship will need the infirm person’s physician to sign an affidavit verifying the need for the guardian. The guardian will be required to investigate the infirm person’s finances and report to the court. Petitioning for a guardianship is tricky and made much easier when the guardian has legal representation. Sometimes, other family members challenge the person who applies and litigation is involved. We have experience in obtaining guardianship for clients. We would be happy to meet with you and help you decide if guardianship is needed by your infirm relative or friend.
Children who have inherited money or received the proceeds from a life insurance or retirement plan also need guardians appointed before the proceeds will be deposited into investments in the child’s name. The guardian will be required to keep the funds intact until the minor turns 18. Under certain circumstances, the funds can be used while the child is a minor for certain purposes under Chancery Court’s approval. It is helpful to have legal assistance through this process.
