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Probate is the process of authenticating, or verifying, your will so that your executor can carry out the wishes you expressed in the document for settling your estate andappointing a guardian for your minor children. While the probate process can run smoothly if everything is in order, it can also take a long time and cost a great deal of money if your will isn't legally acceptable or it's contested bypotential beneficiaries who object to its terms. If you die without a will, the same court that handles probate resolves what happens to your assets based on the laws of the state where you live through a process known asadministration. The larger or more complex your estate is, the greater the potential for delay and expense.

Simple Will

A simple will refers to a single legal document that makes direct distribution of assets for an unproblematic estate. One can easily write a simple will by filling out an easy form bought from a stationery store. A simple will depict: the name and identity of the testator; the names and details of beneficiaries; the name of the executor; particular directions. For example, directions for the care of children; and method of distributing assets.

Reciprocating Wills (Husband & Wife)

Reciprocal wills refers to reciprocal testamentary dispositions made by two or more persons in favor of each other. Parties can unite the provisions in a will or they can make separate wills. The reciprocal will agreement is an enforceable contract and when violated, creates a debt. A reciprocal will is defined as “a written instrument executed and published by two or more persons disposing of the property, or some part of the property, owned or in common by them or in severalty by them”. “Reciprocal wills are the separate instruments of two or more persons, the terms of such wills being reciprocal and by which each testator makes testamentary disposition in favor of the other”. [Estate of Lidbury v. Commissioner, 800 F.2d 649, 652 (7th Cir. 1986)]

On the death of the testator first dying, the will is subject to record and probate as his/ her will. On the death of the surviving testator, the will is subject to probate as his/ her will. A joint will may or may not be reciprocal. A will that is both joint and reciprocal is an instrument executed jointly by two or more persons with reciprocal provisions and shows on its face that the bequests are made one in consideration of the other.

Living Wills

A written document that allows a patient to give explicit instructions about medical treatment to be administered when the patient is terminally ill or permanently unconscious; alsocalled an advance directive. With improvements in modern medicine, the life of persons who are terminally ill or permanently unconscious can be prolonged. For increasing numbers of persons, the decision ofwhether to prolong life is being made in the form of a written document called a living will. The living will is one type of advance directive that may be used by a person beforeincapacitation to outline a full range of treatment preferences or, most often, to reject treatment. A living will extends the principle of consent, whereby patients must agree to any medical intervention before doctors can proceed. It allows the patient to guide HEALTH CARE for thefuture when she may be too ill to make decisions concerning care. It can be revoked by the patient at any time. For many the living will preserves personal control and eases thedecision-making burden of a family. Forty-two states and the District of Columbia have living-will statutes that make a properly executed living will legally binding. In states that do not have a statute, living wills stand as aclear expression of the patient's wishes.

Living-will statutes require that the person be legally competent to execute the will and that the will be witnessed by at least one disinterestedperson. Once a person who has a valid living will is terminally ill, the attending physician and a second physician must certify in writing that there is no reasonable expectation forimprovement in the patient's condition and that death will occur as a result of the incurable disease, illness, or injury. Upon this certification the doctor is obligated to follow the instructions contained in the living will. This typically means the patient does not want any medical procedures that serve onlyto prolong but not prevent the dying process.

Therefore, if the patient is unable to breathe, the doctor is not required to connect the patient to a respirator. A patient may state in a livingwill that he does not want a feeding tube if unable to swallow food. Another common directive is to forbid resuscitation if the patient's heart stops beating. Living wills have been criticized because they are usually limited to the withholding or withdrawing of "life-sustaining" procedures from a patient with a "terminal condition" or "terminalillness," and thus do not accurately reflect the broad legal right to refuse treatment. In addition, by their very nature, living wills reduce the patient's wishes to writing, and thus may betoo rigid (or too vague) to adapt to changing interests or anticipate future circumstances.

To overcome these problems, many states have enacted statutes that permit a competent adult to designate a surrogate decision maker (also termed a health care proxy or agent) tomake health care decisions for her in the event of incapacitation. The proxy's authority is usually not limited to decisions about life-sustaining treatment. A proxy can supplement aliving will. All fifty states have durable-power-of-attorney statutes that permit an individual (the principal) to designate another person (the attorney in fact) to perform specific tasks during anyperiod of incapacity. Though most of these statutes do not expressly refer to medical care decisions, no court has ruled that they preclude the delegation of medical decision-makingauthority to the attorney in fact.

Health Care Power of Attorney

The legal transfer of the authority to make medical decisions on behalf of another person. That is, health care power of attorney gives the designee (called an agent) the ability todetermine what medical procedures may be done on the principal in the event of the principal's incapacitation. For example, one may designate health care power of attorney toa relative in case one develops Alzheimer's disease and is unable to make these decisions oneself.

Power of Attorney

A power of attorney is a written document that gives someone the legal authority to act for you as your agent or on your behalf. To be legal, it must be signedand notarized. You may choose to give someone a limited, or ordinary, power of attorney. That authority is revoked if you are no longer able to make your own decisions. In contrast, if you give an attorney, family member, or friend a durable power of attorney, he or she will be able to continue to make decisions for you if you're unable to make them.

Notall states allow a durable power of attorney, however. A springing power of attorney takes effect only at the point that you are unable to act for yourself. It's a good idea have an attorney draft or review a power of attorney to be sure the document you sign will give the person you're designating the necessary authority to act for you butnot more authority than you wish to assign. You always have the right to revoke the document as long as you are able to act on your own behalf.

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This website is designed for general information only. The information presented at this site should not be construed to be formal legal advice nor the formation of a lawyer/client relationship. Persons accessing this site are encouraged to seek independent counsel for advice regarding their individual legal issues.

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