An important part of estate planning is deciding who you would entrust with making decisions on your behalf should you become unable. Deciding well in advance of illness is ideal, and this decision should be made at the time you prepare or update your will. There are several types of power of attorney (or POA) — general, specific, enduring — but anyone appointed with this power has the same duty: to act in the best interest of the person who appointed them, and to make decisions as the grantor would. For this reason, it is crucial to appoint someone who knows you well, and whom you can trust implicitly.
Contact Estate Planning Lawyers For Information About POA
If you are considering whom to appoint as your advocate in financial matters, educate yourself on their roles and responsibilities. Contact a local lawyer with a background in estate planning for any laws specific to your state; some estate planning lawyers have packages of information outlining everything you need to know when making this important decision. Generally speaking, whomever you appoint will be able to make decisions about your finances and any legal matters; a specific POA to make health care and end of life decisions can be drawn up separately. You can choose the same person or different people to take care of financial and health care matters. The most important thing to remember for any type of POA bears repeating: an advocate has a fiduciary duty to act only in the best interest of the person who appointed them and, to the fullest extent possible, make decisions that they believe their appointee would have made had they been able.
What Your POA Advocate Can Do On Your Behalf
When you appoint a POA, you are appointing an advocate to make financial and legal decisions on your behalf.
They will have access to your bank accounts and investment portfolios. They can pay your bills and ensure your yearly income taxes are filed. They can hire people to take care of your home if you can no longer cook or clean for yourself, and they can apply for a loan should you need one to cover expenses. Your attorney should keep detailed records and receipts of all expenses. If it is ever suspected that power has been abused or that he or she has benefited from acting on your behalf, the public trustee may be called to step in. Alternately, a litigation attorney can be hired to request all of the financial records and if wrongdoing is found, power can be revoked by the grantor, or by the courts.
Need To Revoke Your POA? Contact a Litigation Attorney
If you are of sound mind and decide to revoke POA, you will need to sign a revocation document. Litigation attorneys in Grantsville Utah with expertise in estate planning can help you complete the necessary paperwork.
There are a number of reasons why power may be revoked. You may no longer require an advocate to take care of your finances if you recover from a temporary illness that rendered you previously incapable. Maybe you’ve changed your mind and would prefer to appoint someone else; perhaps your attorney has proven to be untrustworthy and revoking his or her power will give you better peace of mind. In some cases, an attorney will have moved and is no longer able to act on your behalf. In cases where the grantor is no longer mentally competent and is unable to sign a revocation document, a litigation attorney with expertise in estate planning would need to be consulted. If abuse is suspected, a lawyer can request a complete review of the financial records. If wrongdoing is found, a litigation attorney can proceed with asking the courts to revoke POA. The public trustee officer may also be asked to step in to handle the grantor’s finances in the future.
The Medical Power of Attorney and The Living Will
Actually, the functions of a medical power of attorney play in tandem to the directives of a living will.
They’re both health care directives, but the durable power of attorney for health care focuses solely on assigning someone the legal duty to make decisions related to your illness or health condition. It needs a living will, which contains your instructions and wishes, including end-of-life decisions. Once you’ve lost the capacity to think or act on your own, such as when you’ve fallen into a coma, this durable power of attorney takes effect and hands over the responsibility for your personal health and well-being to your agent or attorney-in-fact.
You’ll have tighter control over managing your living will, estate planning, and health care directives when you specify that these shall only take effect after a physician has confirmed that you lacked the mental and physical capacity. In this case, you have a springing durable power attorney in hand. The term capacity here legally pertains to a person’s lack of understanding of the nature of his medical condition, the health care options open to him, and the possible consequences from making these choices. In addition, that person also loses the ability to speak out or make hand gestures to relay his personal preferences for medical care. This is where a health care declaration becomes an invaluable document in your estate planning.
The Financial Power of Attorney
Through a durable financial power attorney, you give another person – someone you fully trust to act in your best interests – the legal authority to act on your behalf. However, this power attorney for finances doesn’t hand over absolute authority to your proxy. You may limit or extend your agent’s legal access to your financial accounts. Generally, your financial surrogate can file and pay your taxes, manage your business, handle financial transactions in your name, access your bank accounts, claim an inheritance, collect Social Security and other benefits, and make use of your assets and properties to pay off debts and provide for your family’s daily expenses.
These two powers of attorney must be specified as durable when filed. Otherwise, they won’t take effect once you were found lacking capacity to think and act for your well-being. A divorce ends both documents when the agent is also the spouse. The court may revoke an agent’s authority under a power of attorney for health care when it finds that the agent has acted improperly. A second person named in the document takes over as an alternate agent.
The Role of Probate Courts and Estate Settlement
The role of probate courts is to archive decedents’ last will and testaments; maintain estate records; record estate inventory and distribution of inheritance property; and record guardianship, divorce, name changes, and adoptions. Probate courts oversee matters governed by equity law. Equity cases involve legal matters which direct a person to act or refrain from acting. Cases filed through probate court do not involve monetary awards such as those governed in civil and criminal courts.
The most common types of cases presented in probate courts include: estate management including probated estates and those protected by trusts; inheritance disputes; and guardianship and conservatorship. Most cases presented to probate court involve estate management and inheritance. Although a Uniform Probate Code (UPC) exists, not every state within the U.S. has adopted all regulations. Therefore, the probate process varies depending on the state in which decedents’ reside.
When estates are transferred to probate courts, an estate administrator is appointed to oversee duties and ensure inheritance property is distributed to rightful heirs and beneficiaries. Estate administrators can be designated within decedents’ last will or through the court. When a person dies without executing a legal Will, it is referred to intestate probate. Those with a Will are referred to as testate estates. Intestate estates take more time to settle than testate estates because additional steps are required.
The probate personal representative may or may not be required to obtain court confirmation prior to engaging in estate duties. Some states require all steps of estate settlement to be approved through the court, while others only require estate administrators to present evidence of settlement. Due to the number of hours required to settle an estate, inheritance property can be suspended in probate courts for several months. The only way to avoid probate altogether is to place inheritance property inside a trust. Trusts are typically used to protect large estates, but individuals with small estates can engage in estate planning strategies to keep certain assets out of probate. Banks allow checking and savings account holders to assign payable-on-death (POD) beneficiaries. Named beneficiaries must provide a copy of the decedent’s death certificate, along with picture ID and completed tax assessor forms in order to claim their inheritance.
Individuals with financial portfolios and retirement accounts can assign transfer-on-death (TOD) beneficiaries.
Named beneficiaries can elect to transfer the funds into a new account in their name or they can obtain lump sum cash. When financial portfolios are transferred they typically are not assessed estate tax, whereas those electing cash payout may be subjected to state and federal estate taxes. Individuals who own real estate can assign survivorship rights to owned property. Individuals who own motor vehicles can assign a beneficiary by obtaining a joint title. In order to comply with state probate laws, individuals should consult with a professional estate planner or probate lawyer.
What Assets Are Subject To Probate?
When you die, your probate estate is everything that is in your estate that can be distributed by a will. You will also hear the terms “probate property” or “probate assets” to describe those items in your estate you can give in your will. During the probate administration, for example, an heirloom watch can be distributed. However, a life insurance policy cannot be distributed, so the life insurance policy is considered a “non-probate asset.” This is because the person who creates a life insurance policy names in the policy who is to receive the money upon death.
During the probate process, you may find on a deed, for example, that a piece of property had a joint ownership interest, meaning it was not owned solely by the will-maker. If that is the case, the property may not be a probate asset and is not subject to probate administration. In this case, the property would pass automatically to the other owners on the deed.
The role of the probate court varies depending on whether the will is contested or uncontested. If a will is contested, that means someone has reason to believe the will is not valid and should not be followed. Reasons to contest a will include believing the will-writer may have been improperly influenced when writing the will; giving items to beneficiaries he would not have without the improper influence. Other reasons to contest a will are that the will-writer did not have the mental capacity to write a will at the time it was written, or the will is not written according to the necessary formulas in the state in which it was written.
A will can be contested in its entirety or a particular section of the will can be contested. Whether the entire will or just a portion is contested, the probate judge considers evidence presented and makes a determination of the validity of the will or will section. A will contest proceeds in a very similar way as any other lawsuit. Generally, though, most wills are not contested and the probate court does not require evidence on whether the will should be followed. Uncontested wills generally complete the probate process more quickly than contested wills.
Does Every Estate Go Through a Probate Hearing?
There are times when an estate may be able to avoid a formal probate process and the hearing. For instance, if the assets of an estate were placed in a trust, probate wouldn’t be necessary. Another situation is when the estate is small enough to qualify for non-formal probate or a small estate administration. While a hearing might be necessary to appoint the executor, the entire process is usually more informal and the court doesn’t maintain such strict control over what happens.
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
Estae Planning Attorney Ephraim Utah
Estate Planning Attorney Farr West Utah
Estate Planning Attorney Fruit Heights Utah
Divorce Lawyer and Family Law Attorneys
Ascent Law St. George Utah Office
Ascent Law Ogden Utah Office
|Coordinates: 40°35′45″N 112°27′55″WCoordinates: 40°35′45″N 112°27′55″W|
|Named for||George D. Grant|
|• Total||37.59 sq mi (97.36 km2)|
|• Land||37.47 sq mi (97.05 km2)|
|• Water||0.12 sq mi (0.30 km2)|
||4,304 ft (1,312 m)|
| • Estimate
|• Density||321.95/sq mi (124.31/km2)|
|Time zone||UTC-7 (Mountain (MST))|
|• Summer (DST)||UTC-6 (MDT)|
|GNIS feature ID||1428338|
Grantsville is the second most populous city in Tooele County, Utah, United States. It is part of the Salt Lake City, Utah Metropolitan Statistical Area. The population was 8,893 at the 2010 census. The city has grown slowly and steadily throughout most of its existence, but rapid increases in growth occurred during the 1970s and 1990s. Recent rapid growth has been attributed to the nearby Deseret Peak recreational center, the Utah Motorsports Campus raceway, and the newly built Wal-Mart distribution center located just outside the city. It is quickly becoming a bedroom community for commuters into the Salt Lake Valley.