FAQs

A living will is a specific type of advance directive, which is a legal document that outlines your medical care preferences if you become unable to make decisions for yourself. These documents are crucial for all adults, as they ensure your wishes are followed in situations such as terminal illness, serious injury, coma, late-stage dementia, or end-of-life care. By creating an advance directive, you can specify your desired medical treatment, prevent unnecessary suffering, and alleviate the burden of decision-making from your loved ones.

A revocable living trust is a legal entity designed to hold ownership of an individual's assets. The person who creates the trust, known as the grantor or trustmaker, typically serves as the trustee, managing and controlling the assets within the trust. In some cases, an institution or attorney may be appointed as trustee. This type of trust addresses three phases of the trustmaker's life: their lifetime, potential incapacitation, and what occurs after their death.

Joint ownership of property can be an effective estate planning strategy, as it allows the surviving spouse to inherit the property without going through probate and eliminates potential estate taxes at the first death due to the unlimited marital deduction. However, this approach may not be suitable for everyone and could prevent you from taking advantage of certain tax deductions. In addition, holding property in this manner will still subject the property to probate upon the death of the second party unless they make other provisions, such as a trust, further joint ownership, or beneficiary designation. It's advisable to consult with an estate planning professional to determine the most appropriate arrangement for your specific situation.

Health care or medical power of attorney is a legal document that authorizes another person to make medical decisions on your behalf if you're unable to communicate your wishes. This document typically provides instructions to healthcare professionals regarding your medical care preferences and designates an individual who has the legal authority to make healthcare decisions for you when you're incapacitated.

Dying without a will, known as dying 'intestate', means that your state's intestacy laws will determine how your assets are distributed. This includes all your bank accounts, securities, real estate, and other possessions at the time of death. Intestate succession can significantly complicate matters for your surviving family members. To avoid this, it's advisable to create end-of-life arrangements, such as a will, to ensure your assets are distributed according to your wishes and to ease the burden on your loved ones.

The timeframe for filing probate after a death varies by state. In most states, you can initiate probate immediately following a person's death, although some states require a brief waiting period. While there's no universal deadline, some states impose a statute of limitations of four to five years, while others have no time limit. Given the emotional challenges following a loss, immediate action can be difficult. If you have concerns about probate timelines or other estate-related issues, it's recommended to consult with an attorney.

The ability of a personal representative to sell property without beneficiary approval depends on the specific terms of the will. Unless explicitly forbidden by the will, the personal representative generally has the legal authority to sell property. However, if the court is involved in the estate administration, this right may be restricted. Beneficiaries who object to a property sale can file a motion with the court to prevent the sale or modify the arrangements.

Estate administration can proceed even when an heir is missing. Each state has its own probate laws governing such situations, but generally, the process can move forward if the personal representatives have made genuine efforts to locate the missing individual. In some cases, the estate's personal representative may be able to deposit the missing heir's share into the court registry after the property has been sold.

Summary administration, while available for small estates or those entering probate years after death, is not always the optimal choice. This process doesn't involve court appointment of a personal representative, which can limit the ability to investigate unknown assets, potentially resulting in asset loss. Other scenarios where summary administration may not be ideal include cases involving wrongful death lawsuits, federal tax liens or back taxes, property in foreclosure, or situations requiring immediate deposit of rent payments.