A will is a written document with your instructions to the Probate Court which will direct how to disburse your property after your death. After your death, it must be filed with the Probate Court before it becomes effective.
A will usually covers property you are the sole owner of at the time of your death, in which there is no beneficiary named.
A trust is a written document in which you express your desires as to the management of your property. It applies to your property during your lifetime, if you become incapacitated, and you can state how your property is to be distributed after your death. A “trustee” (usually yourself) will manage the trust property during your life. You select a “successor trustee” (i.e. a trusted family member or friend) to take over management after you become incapacitated or die.
The trust only applies to the property you expressly put into the trust. The trust can be revocable, which means you may change or revoke the terms of the trust later.
POWER OF ATTORNEY
This is a written document in which you give another person (called an agent, or attorney-in-fact), the legal authority to act for you in the event you are unavailable. Unavailable could mean physically unavailable due to being out of the country or end up in a hospital, or mentally unavailable due to some mental incapacity. The agent has a fiduciary duty to act in your best interests while using the Power of Attorney. Thus, the agent cannot use the Power of Attorney to benefit himself/herself.
A general Power of Attorney applies to your financial property and affairs.
A healthcare Power of Attorney applies to health and medical decisions. This could include authority to withhold or withdraw life support services.
Both types of Power of Attorney are only effective while you are living. After your death, both Powers of Attorney are ineffective. If prepared properly, these Powers of Attorney may very well avoid the need for a guardian or conservator.
A legal process in which the Court administers your affairs after your death, to collect and marshall your property, to identify and pay your debts, and to distribute the balance according to your will (if you have one) or to your heirs at law (if you do not have a will). Probate assets are only those in which you are the sole owner at the time of your death. Thus, probating is only necessary when you die leaving property in just your name. There are various types of Probate administration such as informal, formal and supervised.
A legal process to determine if you are incapacitated, in which you need a guardian to care for your physical well-being. There are various types of guardianship such as full adult guardianship, guardian of minors and limited guardians.
A legal process to determine if you are under a disability such that you need a conservator to manage your financial assets. A conservator is usually appointed by the Court at the same time a guardian is appointed. A conservator has a fiduciary duty to act in your best interests, and the Court usually supervises the administration of your financial assets.
Call 586-228-3900 today to schedule your free consultation and the let the experienced attorneys at Lucido & Manzella, P.C. help you with your Estate Planning!