Estate Planning FAQs

Estate Planning Lawyer

Sitting down and working out an estate plan isn’t something many people want to do. No one likes to think about the day they will no longer be here to take care of their loved ones. But having a solid estate plan in place will ensure that your wishes will be met and your family will be provided for. The following is a brief overview of some frequently asked questions about estate planning from an estate planning lawyer from Silverman Law Office, PLLC.

What is an estate plan?

Estate plans are legally documented directions an individual leaves for his or her loved ones which specify how their assets and property should be divided upon their death. An estate plan can also contain directives as to what should be done financially and medically should the person become incapacitated. Documents included in an estate plan can be a will, trusts, living will, health care proxy, and power of attorney.

What if a person dies without a will?

If a person dies and they do not have a will that directs how their estate should be divided, they are said to have died intestate. In these situations, the intestacy laws of the state they live in would apply and that is how their estate will be distributed.

What is the probate process?

The probate process is the formal legal proceedings that states require in order for the court to determine who is legally entitled to inherit assets and property from the decedent’s estate. The probate process proves the validity of a will, including whether or not it was legally executed, and also provides a process for anyone to contest the will or make claims against the estate (such as a creditor the decedent owed money to).

What is the difference between a will and a living will?

A will addresses what should be done with your property and assets. It also is an opportunity for you to name a guardian for minor children and set up trust funds. A living will addresses health concerns. It is also referred to as an advanced directive.

In a living will, you stipulate what medical intervention you will and will not accept in the event you have a terminal illness or otherwise become incapacitated and are no longer able to effectively communicate with your doctor. Along with a living will, you should also appoint a healthcare proxy as the person who will oversee that these wishes are kept.

Does a living will mean the same thing as a “do not resuscitate” order?

No, a living will only provides direction to the person who you have named as your health care agent in the event the decision on whether or not life support should be terminated because you are unable to make that decision yourself. A do not resuscitate order is something you discuss with your medical provider when you are still able to do so.

Is a power of attorney still valid after the individual they represent dies?

When a person dies, any power of attorney they executed is no longer legally valid and the appointment expires. Instead, any assets they were overseeing automatically become part of the estate and oversight is now the responsibility of the executor.

Changes to Your Living Will

One important note for people who go through a divorce after they have already put their living will in place. If you named your former spouse as the healthcare proxy, you will want to make sure to contact your estate planning lawyer to make that change and/or any other changes to your estate plan.