Wills & Estates
You can’t take it with you, but the IRS and your heirs may fight over what’s left. If you have children, it is imperative that you, rather than the courts, decide who will be the guardian. To provide for your future and for the security of your family, I can draft legal instruments specially designed to meet your specific needs, goals and circumstances. These issues may be addressed, in large part, with the following documents:
Last Will and Testament
A will is a written instrument by which a person decides who shall receive his assets after death. If drafted effectively, your will should contain a plan which takes into account the needs of your family and the nature of your assets while minimizing potential tax liability. It is also the appropriate instrument for designating the guardians of minor children if both parents die before the children reach the age of majority. It is critical for all people to have a will even if they don’t have substantial assets. Without a will, state law will determine the division and distribution of one’s assets, not necessarily according to the person’s wishes.
A will declares who shall inherit an individual’s assets (the beneficiaries) and who shall be responsible for distributing them to such beneficiaries (the executor). For young parents, a will can also be used to appoint a guardian for their children and a trustee to manage a child’s money until they are old enough to handle it themselves.
Often, individuals wish to care for their spouse first, then their children. Often, this intention is reflected in a will. If you die without a will, though, your spouse is only entitled to the first $50,000.00 outright. In New Jersey, he or she must split the rest of your assets with your children, no matter how young or old they are. If you have no children, your parents step into their place.
After death, a will needs to be probated and an executor appointed to carry out the provisions of the will. If there is no will then an administrator needs to be appointed. Tax forms must be filed and the estate properly administered. I am fully familiar with the probate process and guide my clients through it.
Living Will
A living will helps people make life and death decisions before it is too late for them to make decisions on their own. This document explains your desires in the event that if you have a terminal illness or death is imminent, and you do not wish to be kept alive by artificial methods. This is combined with the Medical Care Power of Attorney into an “Advance Health Care Directive” designed to protect the individual under numerous situations. It is a general term that refers to a person’s verbal and written instructions about future medical care in the event that the person becomes unable to speak for him or herself.
A living will should be executed to announce your intentions in the event of an accident, stroke or other serious medical event that leaves you mentally incapacitated or physically depleted of any possible quality of life. A living will protects your assets from being used for unnecessary and costly life support. Without a living will, there is no authority, outside of a court proceeding, to allow a doctor to discontinue this treatment.
General Durable Power of Attorney
A general durable power of attorney grants to another the right to make decisions regarding your financial affairs. This is especially useful if you are rendered incapable of managing your own affairs due to some disability. Because most state laws render ordinary powers of attorney void upon the individual’s disability, you can elect to make the power “durable” so that it will still be effective in the event of disability — precisely the time when it is most crucial.
Even if you have a will, your assets are not completely protected. It is necessary to execute a power of attorney to appoint someone to care for you and your assets if you are disabled. Individuals who become disabled mentally and do not have a power of attorney can only be protected by an expensive procedure known as a guardianship, whereby they are judged to be “incompetent” in the public forum of a court.