Wills & Power of Attorney


Plan Your Estate

Your will is a legally binding document that identifies who should inherit your property after your death. You can also use it to appoint a legal representative to carry out your wishes. However, wills only cover probate property. Jointly owned property, properties in trust, life insurance proceeds, and properties with a named beneficiary (such as an IRA or a 401(k) plan) all fall outside the scope of probate law.

Reasons for a Will

A will allows you to direct where, and to whom, your estate will go after your death. If you die without a will, your estate would be distributed according to the state law. Don't let the state make the decision for you!

In an effort to avoid probate or the need for a will, people often hold all their property jointly with their children. While this can work, it often leads to unnecessary efforts to ensure the accounts remain equally distributed. These efforts can be thwarted by a long-term illness of either the parent or child. Wills are a much simpler means of effecting your wishes as to how your assets should be divided.

A will makes the administration of your estate run smoothly. If you have a will, probate processes are generally quicker and less costly. Wills help to avoid costly, time-consuming disputes over who gets the property.

A will is the only way to choose someone to administer and distribute your estate according to your wishes. This person is called your "executor" (executrix if female) or "personal representative," depending on your state's statutes. If you don't have a will, the court will name this person for you, usually the first person to ask for the post.

For larger estates, a well-planned will can help you reduce your estate tax burden.

Most importantly, a will allows you to appoint a person who will take guardianship of any minor children if both you and their other parent pass away.

Power of Attorney 

A durable power of attorney is the most important aspect of estate planning, even more important than the will. A power of attorney allows you to appoint an "attorney-in-fact" to handle financial matters if you ever become incapacitated.

Without a durable power of attorney, no one is able to represent you unless the court appoints them a conservator or guardian. This process takes time, money, and may result in choosing a person whom you don't want.

A power of attorney may be limited or general. Limited power of attorney gives someone the right to sign a deed to a property when you are out of town, or sign checks for you. A general power of attorney is comprehensive and gives them all the powers and rights that you currently possess.

A power of attorney may also be either current or "springing." Most powers of attorney take effect immediately, even if there is an understanding that they won't be used unless and until you become incapacitated. A "springing" power of attorney does not become effective until such an event occurs. In this case, it's imperative to clearly define "incapacity" and what triggers the power of attorney.

If you don't have someone you trust to appoint, you can have Mark G. Aberasturi, Attorney at Law looking over the shoulder of the person who has been appointed to your affairs through a guardianship or a conservatorship. In this case, you may execute a limited durable power of attorney nominating the person of your choice to serve as your conservator or guardian. 

Most states require the court to respect your nomination, "except for good cause or disqualification."
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