Probate is often the term people think of when someone has died and the deceased person’s estate must be settled. However, it is actually a much bigger word covering several sub-sets of law. Each area can be a specialty in and of itself. The areas of law that fall under the term are:
This is the typical scenario people think of when they hear the word probate. Someone has died and an accounting for all property of the decedent must be made. The courts must be notified and a person (personal representative) must be appointed by a judge so that someone has the legal authority to sign documents transferring property, both real and personal.
A will is that document that sets out who you want to inherit your property (both personal and real) after you have died. If you have young children, you will may also express to the court who you want to finish raising your children and who you want to handle any money your children have inherited. This is often accomplished by including a trust for the children as part of your will.
Trusts are a great vehicle for transferring assets to loved ones. Trusts may be set up for children or grandchildren or a family member with special needs. They can be set up as part of your will, or set up to function independently from your will. An inter-vivos trust is a trust that has assets in it while you are alive and is often used as a way to avoid the eventual estate administration that would otherwise be needed at your death. By using an inter-vivos trust, some people can structure their estates so that no court administration is needed. An irrevocable trust is another type of inter-vivos trust that is commonly used in pre-Medicaid planning for planning for Veteran’s Aid and Attendance benefits.
Oftentimes an orphaned child or adult family member needs to have a guardian appointed to obtain the legal right to make decisions for that person. The court appoints a guardian to be responsible to make decisions such as where the person should live, what education the person should receive, and what medical care the person should receive on the person’s behalf.
Unlike a guardian, conservators take over the financial aspects of a person responsibilities. Children who have money that is not left to a trust need a conservator to manage their assets. When adults experience issues making decisions managing their own affairs, a conservator may be needed to take over these duties. A conservatorship for an adult can sometimes be avoided if a Durable Financial Power of Attorney is put in place before the decision-making capacity becomes significantly impaired.
Powers of Attorney
There are two common forms of powers of attorney: Durable Financial Power of Attorney and Health Care Power of Attorney. We strongly recommended that most people put both powers of attorney in place. Having these in place before there is a need can help to avoid the need to go to the courts to get a guardianship and/or conservatorship once decision-making capacity has been compromised. Additionally, specialized powers of attorney can be used for specific purposes and then terminated. For example, you can grant someone a limited power of attorney to sign a document for you, if you are unavailable to attend a signing event. All powers of attorney cease to be effective when the maker dies. A power of attorney cannot be used as a substitute for a will.
A living will allows you to put into effect your wishes for care near the end of your life. This is the document that specifies whether or not, or under what circumstances you want to be kept on life support, should you be in an incurable condition where death in imminent. A living will can be combined with a Health Care Power of Attorney, but may also be a stand-alone document.
Most clients experience a great sense of relief once they have signed the documents that will put their estate and other affairs in order. Please contact us today to make an appointment and to learn if you qualify for a reduced priced will. (515) 986-2810.
Letsch Law Firm handles a range of issues in the Warren County, Story County, Polk County, Norwalk, Marshall County, Johnston, Irvindale, Grimes, Des Moines, Dallas County and Clive areas of Iowa. Call us for your next legal issue.