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The Durable Power of Attorney…..What is it Good For?

                                                              AUTHOR

James Barrett- DPOA

James Barrett, Esq.

James Barrett has been counseling clients for over 12 years in estate planning, prenuptial agreements and small business formation. He is a highly decorated veteran of the US Navy. He completed a 30-year career as an air traffic controller and union advocate. He has bachelor’s degrees from Florida International University and the National Labor College. He is a graduate of the University of Miami School of Law (2010) and has been in private solo practice ever since. He is admitted to the Florida Bar and his practice is virtual serving all the citizens of Florida.

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Everyday, You make significant decisions concerning your assets, healthcare, finances, and other important aspects of your life every day. But what if you were unable to do so for any reason?

A durable power of attorney (DPOA) is the most powerful tool in planning for physical or mental incapacity. It is much more powerful than a Last Will and Testament or regular power of attorney and should be considered a vital document in any estate plan. The DPOA is relevant at any age, but especially necessary for older people who are more susceptible to mental deterioration. Problems begin when a person is incapable or unable to make financial decisions for themselves. A person may be unable to make these decisions because of the onset of dementia, being in a coma, or suffering from a head injury. Mortgages, car payments, medical bills and other obligations still need to be addressed during these times. Moreover, an individual may need to make important decisions about public assistance like Medicare, Medicaid, or Veterans benefits. It is not always the case that a close relative can legally deal with these issues and most financial institutions will not even speak with a relative without a properly executed power of attorney. It can cost thousands of dollars in legal fees and waste tremendous amounts of time in the courts to be granted the authority that a power of attorney provides.

How to create a Durable Power of Attorney?

The process to create a DPOA is straightforward but should be done by an attorney in the state where the person resides. DPOAs are authorized by state statute and each state varies as to what is permissible to include in the document. States may also differ in how DPOAs are executed. Generally, the scope of an agent’s power is defined within the DPOA document itself. Powers cannot be assumed; they must be explicitly granted within the DPOA. Essentially, the person making the DPOA appoints an agent to act on their behalf for financial affairs. Typically, the agent is authorized to access the person’s accounts, pay bills, apply for benefits, or take any number of other actions, up to and including accessing online accounts, even social media. This access assumes the person has created and maintained a password vault of some form – that’s a topic for another day!

It is critically important that any DPOA be, well, durable. A durable power of attorney survives the person’s incapacity. There is usually language that must be included such as, This power of attorney shall not be affected by subsequent disability or incapacity of the principal.” A regular power of attorney will not be effective when the person is incapacitated absent language in the document to the contrary.

When is it effective?

There are two basic options for when the document is effective. First, the document could be effective immediately upon signing, even though the client is still lucid and capable (which, of course, they must be to effectively execute the DPOA). People are often surprised by and uncomfortable with this option. The key to alleviating this concern is to only give this power to someone that is, without a doubt, trustworthy. Also, in most states, the named agent does not need to execute the document; indeed, the person is under no obligation to even inform the named agent that they have been designated as such. The document itself can be kept in safekeeping until it is needed.

The alternative to an immediately effective power of attorney is a springing power of attorney. A springing power is effective—springs to life, as it were—upon a future event identified in the document, such as the person’s incapacity. Under a traditional springing power, the agent has no authority to act unless and until the person becomes incapacitated. However, a springing power can be significantly more difficult for an agent to administer because financial institutions may demand a current medical report, signed by a doctor as evidence of incapacity before they allow the agent to act.

As with any appointment of an agent, there are potential pitfalls to consider in executing a DPOA. First and foremost, DPOAs provide broad authority that could be abused by the named agent. The potential for abuse grows with the scope of authority. Can the agent give a gift to themselves under the document? Can they change beneficiary designations on financial accounts?

With those caveats in mind, a DPOA should be developed with an attorney and included in most, if not all, estate plans to ensure that the agent can easily act if the person becomes incapacitated.  If you have questions, reach out to us for a consultation.

Prenuptial Agreements: What does State Law Allow

Marriages, engagements, divorces and just about everything you can imagine that has to do with a family or a couple is governed by individual state laws. That is to say, family law is state law. However, while state law attempts to strive for fairness and equitable distribution, the law may not be the best for your situation. Prenuptial agreements allow for engaged couples to choose their own destiny.

Here are some common areas that are handled by state law and how a prenuptial agreement can avoid the state law from taking effect:

  1. Assets

When a couple divorces, much effort is spent dividing up the assets that both spouses accumulated during the marriage, otherwise known as marital property. States take two different approaches as to how marital property is divided up. One is referred to as a community property jurisdiction and the other is referred to as an equitable distribution jurisdiction.

Community property jurisdictions are only recognized in Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. Such states divide marital property evenly, using a 50/50 split. In the more common method of equitable distribution, judges divide up the property in an equitable or fair manner depending on the individual circumstances of the divorcing couple. Both methods allow for separate property, property that spouses owned before the marriage, to stay with that spouse, post-divorce.

In most cases if not all, divorced couples fight and fight over how their assets should be divided. Regardless, state law controls and it ultimately leaves either one of the divorcees or both divorcees upset. That is exactly why prenuptial agreements are so important for a couple looking to marry. By adding a provision in the pre nup detailing how your assets shall be divided post-divorce, the couple has planned ahead for the worst case scenarios. Don’t let a judge decide how your assets will be divided, do it yourself.

  1. Debts

State laws handle debt similarly to assets. Spousal debt is either separate property that has essentially began to accumulate before the marriage or marital debt that has begun to build during the marriage.

Prenuptial agreements can include a provision that divides debts based on your preferences. This is especially important if your fiancé has a significant amount of debt, and you want to ensure you will not be responsible for some or any of it, post-divorce.

  1. Spousal support

It is very common for a married couple to include one spouse who works and another who stays home full time to care for their children. In many instances, when a couple of similar circumstances divorces, the stay-at-home spouse is entitled to spousal support from the working spouse. Factors that a judge will use to determine the amount of spousal support regularly include the stay-at-home spouse’s earning capacity at the time of the divorce, the length of the marriage, and the state’s divorce laws. Judges usually have the final say as to how spousal support is conducted, and their decisions may be to your dismay.

Once again, following the same theme as above, a prenuptial agreement can avoid a judge’s arbitrary decision on the award of spousal support. A pre nup can limit spousal support, post-divorce, based on your wishes.


If you read this and want absolutely nothing to do with state family law, click here and we can find an experienced lawyer to join you for a quick consultation and pre nup for a limited time offer of $569. Take advantage quick before this offer ends!

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Prenuptial Agreements: The Facts & The Fiction!

Do you believe in this statement:

“Prenuptial agreements are reserved for the rich”?

Or perhaps this remark:

“Do you really trust your spouse if you want him/her to sign a prenuptial agreement?”

Or our personal favorite:

“I barely have any money or assets, so I don’t need a prenuptial agreement”.

If you do in fact believe these three aforementioned quoted sentences above, you may have been incorrectly informed as to the true potential effects of prenuptial agreements, commonly referred to as “pre nups”. Let us provide you with a full guide to the truths and lies of prenups.

What is a Prenuptial Agreement?

First and foremost, what exactly is a prenuptial agreement?

Such an agreement is a written contract executed between a soon to be married couple that designates what shall happen to each spouse’s finances and assets during and after the marriage. Pre nups are a neat way of essentially “creating the laws of your marriage” to govern your finances and assets.

To better understand the intricacies of pre nups, let’s play the classic childhood game, 2 truths and a lie:

  1. Statement 1: Almost all marriages end happily ever after.
  2. Statement 2: Pre nups can be romantic.
  3. Statement 3: Pre nups are available to all couples, regardless of their individual or joint income classes.

Did you spot the lie? Here is a closer look into which statements are true and which are false.

Statement 1: “Almost all marriages end happily ever after.” FALSE

 

We hope you spotted this lie. It is quite common for a marriage to end in divorce. In fact, the CDC estimates that 746, 971 divorces occurred in the US in 2019 alone! But that’s common knowledge because everyone knows that divorces happen all the time!

If you truly believe however that divorces happen all the time, then create a prenup.

A pre nup acts similarly to a “Last Will & Testament” in that it avoids your assets and finances from following state law. If your assets and finances follow state law, then your personal wishes will be disregarded. Thus, avoid the dreaded divorce arguments that will separate you and your ex-spouse more than you need to be and create a pre nup that will handle your divorce for you.

 

 

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Statement 2: Pre nups can be romantic. TRUTH

Believe it or not, a pre nup can help strengthen your marriage. A pre nup forces you to talk about your finances, your assets, your spouse’s assets, and your individual expectations of the financial aspects of your marriage. Avoid a lack of trust in your relationship, and build communication, transparency, and confidence. What can be more romantic than that? Many engaged couples enter marriage completely oblivious to the laws of marriage, failing to understand important concepts like spousal support, community property, separate property, child support and more. There’s nothing romantic about flying blind, and it certainly doesn’t set your marriage up for success.  Be smart, be informed. Now that’s romantic.

Statement 3: Pre nups are available to all couples, regardless of their individual or joint income classes.  TRUTH

Yes, it’s true. Pre nups are not just for the rich. Any and every engaged couple could and should have a prenuptial agreement. If you or your spouse don’t necessarily have large assets or a lot of money, that is futile. Pre nups don’t require wealthy couples with immense assets and colossal bank accounts to be effective. If you and your partner are a couple looking to build trust in their relationship, then a prenuptial agreement may be right for you.

For example, a couple of modest means can create a pre nup to plan for the future. If a couple plans to buy a house a few years into their marriage, or perhaps is in line for a new high paying job after school during their marriage, a prenuptial agreement is crucial to handling the division of that large influx of income.

Statement 4: Pre nups are only for the young. FALSE

We see as many older couples, even those starting second or third marriages using this important tool to ensure a successful marriage. In fact, the American Academy of Matrimonial Lawyers even assails, at length, the benefits of premarital contracts for elderly couples. To be sure, with elderly couples, the issues around real estate, spousal support, familial obligations, estate planning and more can be infinitely more complicated. For these reasons and more, we’d argue that elderly couples should think even MORE carefully about utilizing this important tool to insure a healthy, happy and peaceful marriage.

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Learn more about PRENUPTIAL AGREEMENTS,                  Download our eBook for FREE!

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Share your experiences with us! Tell us about how you created a pre nup and how it affected your marriage. We love to hear success stories from all over the globe.

5 Personal Finance Lessons Gained from the Pandemic

The COVID-19 pandemic was, or should I say is, one of the most devastating tragedies to strike the world. Fortunately, the world is starting to enter a new realm of “normalcy” that Americans have not quite experienced since 2019. Perhaps, you are starting to feel comfortable not wearing a mask in public or maybe you’re finally going back in the office to work alongside your favorite co-workers. Whatever that “normalcy” for you might be, you should take a second to look back on the pandemic. Remember the loved ones we lost and the loved ones we luckily still have with us. But also reflect on the effects of the pandemic. Did you struggle financially? Did you lose your job? Did you feel prepared for the pandemic? You are not alone. Regardless of your answers to the aforementioned questions, take a second to view what JUSTLAW attorneys have to say are the five biggest lessons they have gathered for themselves as a result of the pandemic.

  1. Set a budget for yourself and your family.

Sit down with your spouse and your family and prepare a weekly budget for everyone to follow. Doing so will help you ensure that any unexpected job loss, stock market decline, or loss of income will not negatively affect your finances. Plus teaching your children some valuable lessons on finances is never a bad thing!

  1. Appropriately manage your investments.

Diversify, diversify, diversify! Invest safely. Do not put all your money in risky investments. Place a significant pool of your money in safe investments and diversify those investments across a wide array of areas such as energy, tech, or any other area you have confidence in moving forward.

One lesson COVID-19 specifically taught us is that bonds are extremely safe and can even survive the worst earthly disasters such as the COVID-19 pandemic.

When the pandemic first started to affect Americans, the S&P 500 sunk by 34%. Despite that, a portfolio that was comprised of bonds aided numerous investors in staying financially sound. Moreover, many bond investors did not feel compelled to sell off their investments based off emotion, nerves, or worries over their new pandemic reality. Such a calmness and confidence provided these particular investors with bonds that outperformed the market during its worst results in years. Therefore, bond investors were able to pull the profits out of their appreciated bonds and invest them in widely undervalued stocks that had largely dipped due to the pandemic. This is a small example of how we can grasp lessons from the pandemic and apply them to our own lives for financial freedom.

However, keep in mind that bonds are meant to keep you safe and rarely should be utilized as a source of quick profits. Bonds should primarily be used to keep your money safe. Thus, if you are looking to build your money, enter the stock market. But remember, to always diversify!

  1. Set aside money for emergency use only.

This is such an important lesson to take away from the pandemic. An emergency fund does not have to be large and can simply be stored in a checking or savings account. The fund should only be used for situations where large cuts to your income would significantly lessen your spending. When emergency strikes, you will not have to worry about a lack of groceries, clothes, or essentials that every human needs for day to day life.

During the pandemic, many of those who lost their jobs had to wait weeks and, in some instances, months, for their unemployment benefits to kick in. Thus, while an emergency fund does not have to last you an entire pandemic, it can most certainly last you enough time to outlast a wait period in between a lost job and unemployment benefits.

  1. Monitor your credit score.

It is equally as important to always monitor your credit score and ensure it accurately reflects your finances. You never want to have a bad credit score. And if you do, it is time to start bulking it up. Credit scores represent your ability to pay and after the COVID-19 pandemic, ability to pay has never been so important.

  1. Create an Estate Plan.

What are you waiting for? Create a will! If you haven’t done so already, then perhaps the pandemic did not scare you enough. Every American, regardless of their age, needs a will. Life strikes fast, and unforeseen global pandemics spark when they are least expected. A lack of a will forces your estate into intestacy. Jump over here for a fantastic dive into intestacy and learn the very many reasons why you never want to hear your name and intestacy mentioned in the same sentence.

Bottom line is every American needs a will and among other documents, including a trust, living will, and a durable power of attorney.

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Do you have any other lessons you would like to share? Call or email us and tell us your story. We want to hear not just from our clients, but any and everyone. After all we are a public benefit corporation and so we want to ensure every American is protected and their personal finances are in order.

 

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The #1 tool for a better marriage

Marital peace of mind has never been more accessible.

A prenuptial agreement is a legally binding contract establishing how assets will be divided in the case of a divorce or of one spouse’s death. But prenups aren’t just for the ultra-wealthy. Though prenuptial agreements can be especially important for those holding significant assets or debts before marriage, most marital counselors consider a prenuptial agreement to be an extremely effective tool for creating transparency, openness and peace of mind in the marriage. Prenups can also be an especially important tool for women, who are more likely to spend time outside the workforce caregiving to children or elderly family members. As Allison Walsh, a New York attorney, says, “You don’t think you’re going to get in a car accident, but you sure do buy the insurance anyways.” “The most important thing is that couples should have open and honest conversations before marriage, and understand what the rules are if things go wrong,” Walsh added. “If you do that, you’re much more equipped for a successful marriage.”

What is a prenup anyway?

In short, it’s a contract: A contract for your marriage and what happens if things don’t work as planned. The agreement prepares couples for the unthinkable – ultimately aiming to save both parties in emotional and financial ways. The document frames and narrows the issues in the event of a divorce. With the costs of divorce skyrocketing, a good prenuptial agreement can limit the costs attenuated to the divorce by crystalizing how the financial aspects will be resolved if the marriage goes sideways.

How do prenups compare to post-marital agreements and other arrangements?

There are a few alternatives to prenups that may help couples prepare for their financial future. A postnuptial agreement, for example, is less common than a prenup but has become more popular in recent years. If a couple has a significant change in finances or are having marital issues, a postnuptial agreement can be useful to reflect changed circumstances. Other alternatives include mutual estate planning, and such plans rely on the couples’ state of residence.

What are the benefits to getting a prenup?

First, we like to outline the benefits of simply having a conversation with your partner about the prenup. That process facilitates an open and transparent conversation about your and your partner’s financial situation, which is an important skill to master in marriage. Because, let’s face it, money matters. A lot. In fact, over half of divorced couples report that their marriage ended due to financial strain. Ultimately, we advise couples that this process of “negotiating” a prenup can strengthen their relationship over the long term. Once the document is signed, it substantially limits the range of outcomes in the event of a separation or divorce, and eliminates many of the levers one party could pull to cause problems (and expense). And by signing the document before marriage, you get to make these plans and difficult decisions from a place of love, rather than from anger or resentment. As you have this conversation with your partner, we suggest you keep moving the conversation forward, but always consider your partner’s perspective and try create solutions together. Don’t think of the process as a zero-sum game. And don’t hesitate to take a pause when things get testy.

What happens if I don’t have one?

The short answer is, you don’t really know. That’s the troubling part. Family law will govern any dispute, and that’s usually where the battles start. Although everyone assumes he or she will act maturely and rationally during a divorce or separation conflict, it rarely happens.

How much does it cost?

It really depends on the complexity of your situation. Traditionally, couples would pay somewhere between $3,000-$5,000 for a moderately complicated situation. With the advent of sophisticated technology and online platforms like JUSTLAW, the cost can be much lower. In fact, we’ve recently launched a promotion offering a custom-drafted document and a 1:1 virtual meeting with an experienced lawyer for just $529 (limited time only). In short, getting a prenuptial agreement is a lot easier and more cost effective than it used to be!  

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Separation & Divorce: what’s the difference?

An unsuccessful marriage is often disposed of by a divorce between the spouses. When the two parties in a marriage are unable to live together and are ultimately incompatible, the parties in such a situation, opt for a formal closure to the marriage called a divorce. According to the Concise Oxford Dictionary of Sociology (1994), ‘the formal legal dissolution of legally constituted marriage’ is termed as a divorce. But sometimes, parties in an impugned marriage do not directly resort to divorce, instead they avert the formal dissolution by a legal separation.

 

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The concept of legal separation holds a very significant position in the range of family law. It is the most effective alternative to settle disputes in a conflicting marriage. Legal separation means a process wherein a couple in a marriage lives in separation from each other following a court order. The couple lives apart from each other in a generally accepted first step towards a divorce. It provides the couple an opportunity to reflect upon their relationship and to think more clearly about their future. For some couples, legal separation is a prospect of reconciling the relationship while for some couples it is the track to a divorce. Legal separation could be classified into three types: trial separation, permanent separation and legal separation.

What they have in common

Both the concepts of divorce and legal separation share an important relationship. In divorce and legal separation, the court plays an important role in granting child custody, rights regarding visitation, division of the property based on the status of the couple and maintenance for the spouse and children etc. which is similar between both. In addition, as the Ohio State Bar Association notes, all the procedural tools and orders available in a divorce are also available in a separation. Thus, separation is a powerful, legally recognized mechanic without the finality of divorce. 

How they differ

However, legal separation and divorce do share a significant variation in their legal implications. Unlike divorce which formally puts an end to a marriage, legal separation designates that the couple is still married, permitting them to be entitled to certain benefits.  A separated couple is allowed to retain the family health insurance, spousal retirement benefits, tax benefits etc. A separated spouse is allowed to make financial or medical decisions for the other whereas under a divorce, an ex- spouse is a stranger to the medical and financial decisions of the other.  

 

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During a divorce proceeding all debt and liabilities shared by the spouses are settled, thus after the granting of divorce there can be no debt or liability between the spouses which arose from the marriage. However, under legal separation there is no settlement of debts and liabilities. 

 

Property Rights

The property rights of the spouse are also affected differently. Under divorce, the person’s right to inherit the property of the spouse is completely annulled while under the counterpart, the right to inherit is retained. Moreover, one of the most important legal implications that differ between the two is the right to marry, i.e., determination of marital status. A separated spouse is legally married, they retain their marital status and cannot remarry without a formal divorce. Under a divorce, however, a person is free to remarry. Reconciliation between the spouses is easier for a legally separated couple whereas under a divorce, it is an ultimate end to a marriage affair. Reconciliation after divorce is possible only by marrying the former spouse again.

To understand the legal complexities and technicalities involved in a divorce and legal separation is an arduous task. Therefore, the role of a lawyer in such a fragile situation becomes highly imperative. A good family lawyer will provide a client with sound legal advice as to the intricacies of legal separation or divorce and thus permit the client to make a completely informed decision based on their best interests.

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When to file a strategic counter-petition for divorce?

Normally, to start a divorce, one spouse would file a “Petition for Divorce” and serve it upon the other. When that happens, the responding spouse would typically file what is known as an “Answer” to that petition. In this answer, one would generally deny the allegations of the petition as a purely defensive measure.

However, sometimes it is beneficial for the responding spouse to go on the offensive by filing a “Counter-Petition for Divorce”. This counter-petition is often combined with the “Answer” and titled “Answer & Counter-Petition for Divorce”. It is basically a way of preserving your right to go forward with a divorce even if the spouse who filed the original petition later decides he or she no longer wants the divorce. In other words, if that spouse withdraws the original petition, your filed counter-petition can still serve as a legal basis for the court to go forward with the divorce.

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Another important reason for filing a counter-petition is if, in addition to simply dissolving the marriage, you are also seeking affirmative relief such as alimony or property division. Filing such a counter-petition is especially important if the relief you are seeking is different than what is stated in the original petition or is entirely omitted from that petition. Identifying those claims in your “Answer” will not preserve them if your spouse withdraws the original petition. Thus, under these circumstances it is best to include a counter-petition so that you may (i) make your own factual allegations, (ii) state your own reasons for divorce, and (iii) request your preferred relief from the court.

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As you surely have noticed above, JUSTLAW hosts a variety of well-experienced attorneys such as the author above. Thus, if you found this article to be beneficial and need legal advice pertaining to your individual legal needs, contact us and we will immediately set you up with an attorney.

DISCLAIMER: This blog content is for educational purposes only. It does not constitute legal advice. Do not act or fail to act based on this information alone. For actual legal advice, please speak to a lawyer in your jurisdiction about your specific fact situation.

Blog authored by:

Mayur Amin
Arlington, Texas
12/14/2020

Mr. Amin graduated from the University of Texas School of Law in 1994. He has over twenty years of civil litigation, trial, and appellate law experience. This experience includes having tried over fifty civil jury trials as first-chair and the filing of appeals with both the Supreme Court of Texas and the United States Supreme Court. Mr. Amin also has several years of work experience handling a variety of personal, business, and transactional law matters. Prior to law school, Mr. Amin was a certified public accountant and earned his Bachelor of Science with high distinction from Indiana University’s School of Business.

WHY IS IT EXTREMELY IMPORTANT TO HAVE A WILL, AT ANY AGE?

A will can simply be explained as a ‘desire, choice, willingness, wish etc.’ of a person. According to the Merriam Webster Dictionary, a ‘Will refers to a legal declaration of a person’s wishes regarding the disposal of his or her property or estate after death.1 Thus legally, a will is a declaration wherein a person expresses his/her desire or wish of how the disposition of his/her property or estate will take place after his/ her death.

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After death, the property or estate of that particular deceased person can be dealt with in one of two ways. The first circumstance occurs when the person had previously executed a will. Where there is a valid will, the property will be disposed of according to its terms. The second circumstance occurs when there is no valid will, and thus in such a situation the state laws will apply and disposition of the property will take place based on these state statutes. Therefore, a will plays a very important role because it is one of the sole means of disposing your estate or property to your immediate family without any recourse to legal strife (besides probate court, of course) which can not only be time consuming and expensive, but also mentally exhausting.

However, if you follow our long stream of legal articles on the Verdict, you are most likely an expert in wills. Thus, we don’t need to bore you experts any longer on the intricacies of wills. Instead, we feel that we need to put extra emphasis into the importance of having a will. There are many reasons that can explain why it is extremely important to have a will.

    1. One of the main aims of the will is to carry out the disposal of your estate as desired or intended by the testator. In absence of a will, the property comes under intestacy state statutes. In the event that occurs, there is no guarantee that your property will be divided as envisioned by the deceased testator.
    2. Second, a will allows the appointment of an executor. Since the role of the executor is crucial in winding up the affairs of the property and estate, it leaves the testator at liberty to appoint a person who may be honest and trustworthy. In addition, keep in mind the executor does not necessarily have to be a family member.
    3. Further, under a will, the testator is also permitted to disinherit any person since it is up to the testator to decide how to dispose of their estate. A will is not effective until the death of a person, therefore it is flexible to amend upon unforeseen circumstances occurring.2

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The importance of a will can not be undermined; therefore, the role of the lawyer in drafting a will becomes very significant. At JUSTLAW, we use top lawyers from the best law schools to help you through your estate planning process. And because we don’t have fancy offices or years of bloat, we’re able to pass along incredible savings to you, the customer.  Our lawyers are well-versed in the technicalities of getting a complete will-based estate plan. They are on standby to act as an important resource to advise and answer any queries you might have.

With the effects of the pandemic continuing to loom large on society, create a will from the comfort of your home using legal services available online.

 

The Concept of Guardianship and its Importance

Guardianship in ordinary discernment refers to a position capable of protecting or guarding. The Oxford learner dictionary defines guardianship as the state or position of being responsible for somebody or something.¹The concept of guardianship holds a very important position in law. It can be defined as a legal obligation imposed upon a person, to provide care for another who is unable to maintain his or her own affairs. The Guardianship is a legal relationship wherein a legal duty is created upon a person or an institution whose name is instituted in a will or by the order of the court, and is duty bound to take care of a minor child or an incompetent adult.

Guardianship can be classified into three types. The first type would include a friend or a family member of a ward. It includes a natural guardian. Further, the second type includes a public guardian wherein some government agencies may serve as a guardian. And lastly, there are professional guardians which include attorneys and other professionals. The professional guardian is appointed when the candidates from the first two categories are not willing to or unable to maintain the ward in question.

guardianship law

An appointment of guardianship is restricted to the person who is incompetent to take care of their own affairs. A guardian may be appointed for a minor person below the age of 18 (as it is taken, they are unable to handle their affairs) and for people who due to some mental, physical disabilities etc. are unable to maintain themselves.

The eligibility for the appointment of guardian is highly influenced by the ‘best interest’ of the ward. The court may consider various factors such as education, health, trustworthiness and the relationship of the potential guardian vis-à-vis a prospective ward. Opinions of the ward can also be taken into consideration by the court. A guardian having conflicting interest in the guardianship cannot be appointed. The court also has the power to limit the role of the guardian either exclusively to the care of the person of the ward or exclusively to the assets and finances of the ward

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A guardian is responsible for handling the finances, property and personal care of a person incompetent to do so.²Apart from the active role of the court in the determination and overviewing the role and functions of the guardian, a good guardianship attorney also plays an important role in the matters of guardianship. His expertise involves advising which guardianship should be granted based on the circumstances, to help the clients with complex and technical paper work and also to represent a client (guardian) before the court of law after appointment under the guardianship laws. An attorney ensures that the hearing for guardianship is conducted correctly and is in compliance with the just principles of law. Therefore, do not go into a guardianship hearing blindly.

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The best way to account for guardianship is by addressing a guardian for your children in your estate planning documents. Take a second to view offers of various companies that provide unique legal services for a low price.

Estate Planning 101

Planning ahead of your death can be one of the most beneficial things you do for your family and friends. By creating a full and thorough estate plan, you have the ability to transfer your assets to your loved ones beyond death. An estate plan consists of a variety of documents and aspects that permit you to decide how to handle your property. The top attorneys over at JUSTLAWhelped us formulate a list of the top six things you must do in order to have an efficient estate plan.

 

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1. Execute a Last Will & Testament

This document is the cornerstone of your estate plan. There is no point in going through the rest of the steps, if you do not have a last will. It is a vital part of your estate plan. 

A last will handles all of your property after your death. In the document, you have the ability to bequeath, or transfer upon death, every piece of property you own to a specific person. Take this opportunity to give your house to your children, your car to your wife, and your precious art collection to your best friend.

The reason as to why creating a last will is so important is because it avoids intestacy. The laws of intestacy are put in place as default rules in the event you do not create a last will. Every state has their own set of laws on intestacy. These laws favor relatives and thus may not be in line with your wishes. Therefore, if you do not create an estate plan, then intestacy will not see through that your best friend receives your art collection.

 

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2. Execute a Living Will

Also referred to as an advance directive, a living will is a legal document that specifies the type of medical care you wish to receive in the event you become incapacitated and are unable to make those medical decisions yourself. In the document you can also express your wishes as to a variety of medical procedures including, but not limited to, cardiopulmonary resuscitation, mechanical ventilation (breathing tube), feeding tube, comfort care, dialysis, organ donation, etc. Do not let your family stress over what to do in this situation. Make your intent clear and fill out a living will for their benefit.

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3. Power of Attorney

Next, you should designate someone as your power of attorney. A power of attorney, or durable power of attorney, is a document that empowers someone to act on your behalf. Generally, an estate plan consists of two of these positions: Health care power of attorney and financial power of attorney. The health care power of attorney is addressed in the living will. However, in the event you are incapacitated, you can designate someone as your financial power of attorney, to take care of your finances.

4. Create a Living Trust

Otherwise known as an inter vivos trust, a living trust gives you the ability to name beneficiaries to your designated assets. The advantage of placing assets into a living trust over a will is that the trust avoids the lengthy and expensive probate process. A detailed description of other ways to avoid probate, beyond creating a living trust, are beyond the scope of this article, but there are some good, free resources available online. With this document in place, the named beneficiaries can immediately own and control the designated property upon your death.

 

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5. Protect your Digital Assets

Many folks spend significant amounts of time thinking about their personal property and how it would be handled in the event of their passing, but never give consideration to digital assets they’ve worked hard to create during their lives. The list goes on for the variety of ways that people use Instagram, Twitter, Tik Tok, blogs, and websites. These tools, when used correctly, can allow certain influencers to generate large online activity and, in many cases, significant revenue streams. State legislatures have gone a long way to helping folks protect these assets, as over 35 states have now adopted the Revised Uniform Fiduciary Access to Digital Access Act. Yet while the legislatures have offered citizens the tools to protect these assets, very few online entrepreneurs have done so using their will-based estate planning documents. Under a will you can protect these accounts by assigning a beneficiary to control each account. If you’ve worked hard to build your sphere of influence online or even if you’re just an average person who wants your family to hold onto your personal digital assets, you will most certainly want to consider protecting these digital assets as part of your estate.

For example, you have probably heard of the singer, Prince. He among many other famous celebrities, died without a will. His heirs have ensured that his crucial mistakeof not creating a will stays in headlines for years and years to come. To date, not one of his heirs have inherited any of his estimated $200 million dollar estate. That all started thanks to a petition filed over four years ago back in 2016, initiating the case of In re the Estate of Prince Rogers Nelson. As part of his enormous estate, some of the more valuable assets include his numerous emails, tweets, social media accounts and other digital assets all owned in his name. In fact, it is estimated that as a result of this four year battle over Prince’s estate, both sides have built up administration fees upwards of $45 million. That is almost 25% of the worth of the entire estate.

Clearly it is extremely beneficial to create a will. Do not send your family into years and years of ugly disputes over something so simple. Please, create a will. Not only for your sake but for your family’s sake as well.

 

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6. Guardianship

In some instances, both parents of a child pass away at young ages. As new parents, one of the first things you should do after the birth of your precious little one is complete guardianship forms as part of your estate planning. The forms ultimately designate people of your choosing who will become the child’s guardian. Stated more directly, the guardian you choose will care for your child until he/she reaches the age of eighteen, in the event you pass away while the child is still young. This is vital towards ensuring the safety of your child by placing them in the care of people you trust.

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This article was meant to provide you with a summary of some of the most important components of a comprehensive will-based estate plan. It’s clearly not a substitute for a good attorney, and shouldn’t be viewed as legal advice. Hopefully, this information helps you create a thorough estate plan. Remember to always keep it current by updating your beneficiaries and any newly acquired assets. In addition, talk to your loved ones about your estate plan. And finally, remember that affordable attorneys are available online to help you through it.The law was meant to protect you, so do your part to make that true.