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1 Wills A Legal requirements (1) A will provides the testator with an opportunity to control the passing of his or her property and thus avoid intestacy (2) Requirements for making a will (a) Generally any person 18 or older of sound mind (b) Less mental capacity is required by law to make a will than to make a contract The testator must know the nature and extent of the property and the natural objects of his or her bounty (c) Typically must be in writing, signed by the testator, and witnessed by at least two persons (3) A will is revocable revised or amended by codicils Codicils are supplements to wills, executed under the same rules as wills B Types of wills (1) Holographic will One written entirely by the testator, which is valid in some states without the formality of witnesses (2) Nuncupative will An oral will spoken by the testator during the last illness in the presence of the required number of witnesses (3) Living will A legal document executed by the testator declaring what medical treatment and procedures, such as life support, may or may not be used in the event that he or she becomes unconscious or incompetent (4) Joint wills (also called mutual or reciprocal wills) Two separate wills that share reciprocal provisions for the disposition of property in the event of death by one of the parties (5) Pour-over will A will that distributes, at the testator s death, probate assets to a trust previously created
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Topic 83: Estate Planning Documents - 289 C Avoiding will contests An in terrorem clause provides that if a bene ciary unsuccessfully contests the validity of a will, the bene ciary bequest is void 2 Powers of attorney A De ned (1) A power of attorney is created by an individual, giving authority to another entity to act on the behalf of the individual The power of attorney is usually witnessed and accredited (2) The person executing the power is called the principal, and the person appointed by the power is the attorney-in-fact B Durable feature (1) A durable power of attorney is not terminated by subsequent disability or incapacity of the principal It is designed to cover the situation in which the principal becomes incompetent A power of attorney that is not a durable power of attorney terminates upon disability or incompetence (2) A springing power of attorney does not become effective until the occurrence of a speci ed event C For health care (1) Applies to all situations in which the principal is unable to give informed consent with respect to a particular medical decision It often gives the power to use or not to use arti cial life-support systems (2) It always springs on incapacity (3) Such powers are recognized in almost all states, but state law varies in terms of the scope of authority of the attorney-in-fact (4) A major drawback is that this power is so powerful: It can place reluctant family members in the position of having to make a decision that is regretted later in life D For property (1) Durable power of attorney for property appoints a person to make decisions in regard to the principal s assets (2) It is generally effective upon execution (no springing) and continues until death of the principal (3) It is often used in place of a trust for smaller estates (4) It is often used for purposes of gift giving by the attorney-in-fact when the principal is elderly, and/or seriously ill, and not legally competent E Special or limited powers (1) A limited power is a special power (2) The extent of the power is limited only by the desires of the principal F General powers (1) An unlimited power is a general power (2) Broad general powers are intended to give the attorney-in-fact the right to act to the same extent the principal could have acted if available 3 Advance medical directives (eg, living wills) A An advance medical directive establishes a medical situation in which the testator no longer wants life-sustaining treatment (ie, life-support systems to prolong life) A living will is a medical life-support directive B It does not designate an agent to make medical decisions
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290 - Estate Planning C There are several drawbacks to living wills They are generally very brief and vague, covering only a narrow range of outcomes, which are mostly in the area of life-sustaining treatment No living will, no matter how detailed, can cover all possible medical outcomes Most living wills apply only to terminal patients D In some states, it may be appropriate to execute both a living will and durable power of attorney for health care to cover all areas 4 Trusts A Clients may create trusts to manage their property if they become incapacitated or upon death B Where the disabled (or decedent) settlor was serving as trustee at the time of the disability or death, most state laws allow a successor trustee to immediately take over the administration of the estate C A living trust can be used for managing the disposition of property upon disability or death (1) Similarities of a living trust and a will (a) Both serve as a guide for the disposition of property (b) Both have a duciary who is responsible for managing property (c) Both instruments are revocable and amendable, at least up until death of the person creating the instrument (a living trust generally becomes irrevocable at death of the grantor) (2) Differences between a living trust and a will (a) Dispose of different types of property A living trust disposes of property owned by the trustee in trust for the trustor (decedent) A will disposes of probate property owned by the decedent at death (b) A living trust appoints a trustee, whereas a will nominates an executor (c) Formal execution requirements are stricter for a will Witnesses are not required when signing the trust documents However, the mental capacity necessary is at a higher standard for a trust D Testamentary trusts are also a principal document of property disposition (1) This trust takes effect after death at the end of the probate process (2) It contains all provisions commonly found in a will and includes unique cases that relate to the trust documents (3) A testamentary trust must appoint a trustee and nominate an executor 5 Marital agreements There are some issues that may have to be addressed in planning a marriage Premarital agreements are among the most widely used vehicles for marriage planning 6 Business agreements (see Topic 39) Buy-sell agreements make sure an estate can sell a business interest for a reasonable price The contract contains wording that binds the owner of a business to sell his or her share of a business at a speci ed price to a designated buyer, usually a partner(s) in the business
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