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Preparing a Will

Last Wills and Testaments

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Last Wills and Testaments

Last Wills and Testaments

Essential Parts of an Estate Plan Include:

Last Wills and Testaments

Last Will and Testament - A Last Will and Testament is a legal document that sets forth the testator's (the maker of the will's) desires and instructions as to how his or her property will be distributed upon his or her death. A will can also appoint the person or institution that will act as the testator's fiduciary, and it will set forth the powers the fiduciary are given to carry out the testator's wishes. A will can also be used to nominate the person who the testator would like to be the guardian of the testator's minor children, and the trustee to manage assets left to the minor children.

Power of Attorney - A Power of Attorney permits the agent (known as the attorney-in-fact) for the principal (the person granting the power of attorney) to act on behalf of the principal in business and personal transactions. This instrument cannot be used to make medical decisions. A general power of attorney is normally broad in nature. Typical powers granted are the right to execute, modify and terminate contracts; to buy, sell or transfer real or personal property; to adjust, compromise and settle claims; and to  conduct and carry on the business affairs of the principal. Most general powers of attorney are revocable (meaning they can be canceled by the principal). The principal can revoke the power given to the attorney-in-fact by delivery of a written document which gives notice of the revocation of the power of attorney.

Durable Power of Attorney for Health Care - A Durable Power of Attorney for Health Care is used exclusively for authorizing the attorney-in-fact to make medical and health  care decisions for the principal when the principal is no longer capable of making decisions for him or herself. In some case, a licensed physician may be required to   determine when the principal is no longer capable of making decisions. This instrument requires the attorney-in-fact to make health care decisions which are consistent with  the wishes of the principal. This instrument will not overrule a Living Will. The person named as the attorney-in-fact must be an adult who is not your physician, or the administrator of the facility in which you are receiving medical services.

Living Will - A Living Will is a document that expresses the wishes of a person regarding life sustaining treatment once the person has become terminally ill or permanently unconscious. The Living Will becomes effective only when you are unable to communicate your wishes, and are terminally ill or permanently unconscious. The instrument  gives your treating physicians authority to follow your instructions regarding the use or non use of life sustaining treatment. The determination as to whether you are in a permanently unconscious state or terminally ill beyond medical help will be made by two physicians who are required to examine you, and agree that you are in the aforementioned condition.

Trusts - A trust can be created while you are living (called a Living Trust), or can be created by your Last Will and Testament (called a Testamentary Trust). A Living Trust is an agreement wherein the person creating the trust appoints a trustee to hold assets for the benefit of one or more beneficiaries. Typically, the person(s) creating the trust, the trustee, and the beneficiary are the same person. Most times, a husband and wife will create a Living.

Trust for their benefit while they are living, and upon the death of both spouses, their children become the beneficiaries of the Living Trust. A Living Trust may help to avoid probate, can help (in some instances) to minimize taxes, and can maintain assets for a period of time until a beneficiary reaches a certain age.

A Testamentary Trust has some of the same advantages as a Living Trust, however, it is not used to avoid probate, or to minimize taxes. The big advantage of a Testamentary Trust is that it is usually less expensive in terms of attorney fees and costs to create as compared to a Living Trust.

Real Estate Titles - A well thought-out estate plan can often allow you to transfer real estate outside of the probate process by use of Transfer-on-Death affidavits, Survivorship Deeds, and outright transfers during one's lifetime.

The estate planning and probate attorneys at Bailey & Gunderson welcome the opportunity to assist you with your estate planning and probate needs.

Since 1995, the law firm of Bailey & Gunderson has assisted estate planning and probate clients in the greater Cincinnati area (Hamilton, Clermont, Butler and Warren counties). If you have questions or need information about estate planning and probate, please contact our Cincinnati office.