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WILLS AND ESTATE

WILLS

Wills specify what is to happen to an individual’s property upon his/her death. Wills must be written, signed and witnessed, and in some cases notarized. Wills can be changed as many times as you like and usually are changed when either financial or family situations dictate. Only the original Will can be subject to probate on an individual’s death and completed Wills should be held in safekeeping.

Most Wills have specific bequests, specific items or amounts of money to specific people, and a residuary or residue, a general pot that can be divided amongst a group of people. While you can disinherit your children, in most states, you cannot disinherit your spouse. Individuals with children would benefit from having a Will which designated the individual who would care for those children as a guardian in the event of the death of the parents. Check with one of our attorneys about which provisions best serve your needs.

You would also designate someone to serve as Personal Representative of your estate upon your death. This individual would be responsible to carry out the provisions of your Will, distribute your property as set forth in your Will, and file the necessary reports to the court as to the how that property was distributed.

will on table with gavel and pen

POWERS OF ATTORNEY

Financial powers of attorney are extremely helpful in the event of accident, injury, and illness in which you are unable to make decisions or communicate your wishes. With a power of attorney, you can designate the individual that you wish to make decisions for you. While most powers of attorney can be effective on your disability or incapacity, some powers of attorney can be effective as soon as the document is signed. Be careful to ensure that the person you choose as your attorney in fact, the person who will make decisions in your place, is someone you trust and someone with whom you have discussed your financial situation. While the powers of an attorney in fact are broad, you can limit the powers given to the attorney in fact.

ADVANCE DIRECTIVES

Like a power of attorney, advance directives or durable powers of attorney for health care, or living wills, allow you to designate someone to make decisions regarding your health care in the event that you are incapacitated. This person is known as an attorney in fact or health care agent. These documents identify a single person with whom hospitals, doctors, and other health care providers would communicate about treatment and care decisions. In the event that you do not have an advance directive and are unable to make or communicate those decisions, your next of kin may be called on to make those decisions. If you do not want your next of kin to make those decisions, an advance directive is necessary. In an advance directive, you can specify what treatments you want as well as those treatments you do not want. It also sets forth your decisions as to what steps would be taken to prolong your life in the event that you have a terminal disease, in a persistent vegetative state or in an end-state condition. You can change your advance directive at any time. In Maryland, if the advance directive is drafted consistent with the Maryland statute regarding advance directives, a hospital or doctor who fails to follow the terms of the advance directive may be subject to civil penalties or criminal prosecution.

senior in critical care in hospital

PROBATE AND ESTATE ADMINISTRATION

Financial powers of attorney are extremely helpful in the event of accident, injury, and illness in which you are unable to make decisions or communicate your wishes. With a power of attorney, you can designate the individual that you wish to make decisions for you. While most powers of attorney can be effective on your disability or incapacity, some powers of attorney can be effective as soon as the document is signed. Be careful to ensure that the person you choose as your attorney in fact, the person who will make decisions in your place, is someone you trust and someone with whom you have discussed your financial situation. While the powers of an attorney in fact are broad, you can limit the powers given to the attorney in fact.

gavel on table top

ESTATE LITIGATION

Even in cases where the deceased’s Will clearly set out his/her wishes, there may be family members or others who may file in court to challenge that Will. These will contests or caveats are claims that the Will that was admitted to probate is either invalid, was not executed as required by law, was procured by fraud, or was created due to pressure or influence by a third party. A caveat may also be filed if another Will has been discovered. Caveats effectively halt the probate process and a challenge to the authenticity of the Will, and perhaps the appointment of the Personal Representative must be resolved before the probate process can continue.

 

In addition, during the probate process, there may additional litigation such as actions to replace the Personal Representative actions regarding claims that the estate is being mismanaged, litigation regarding claims filed against the estate by creditors, or challenges by Interested Persons to the accountings filed by the Personal Representative, normally called exceptions. Our experienced attorneys can assist you with the court actions accompanying these types of litigation.

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