When people hear that you are an estate planning lawyer, they often have a lot of questions, such as whether they need to use a will or a power of attorney when they create an estate plan. Many of the questions people have reflect a basic misunderstanding of some key estate planning issues. This is entirely understandable because estate planning is not a common field of study, nor are the details of what goes into estate planning widely discussed in the general population. Today, we are going to look at the differences between a will and a power of attorney, what they do, and why your estate plan will likely rely on both the.
Should I use a will or a power of attorney?
When you make an estate plan, you and your attorney will have to decide what tools you need to create to best protect your needs and interests. A will, also known as a last will and testament, is one of the essential tools your plan will rely upon, as is a power of attorney. While you are under no legal obligation to use either of these tools, and are free to create one instead of the other, your plan will most likely include both of them. This is because both wills and powers of attorney address specific areas that your plan needs to cover. Also, the individual areas that both of these tools address are not exactly overlapping, and no plan will afford you complete protections if it only relies on one instead of both.
Why do I need a will?
Most people need to create an estate plan that includes a last will and testament because these tools play a specific role. You probably already know that a last will and testament allows you to make inheritance choices, but it also allows you to make other decisions. For example, through your will you can create a testamentary trust that can own property on behalf of a minor until that minor becomes an adult. Further, you can use your last will and testament to appoint a guardian of any minor child under your care.
The important thing to understand about your last will and testament is that it does not take effect until after you die. Regardless of the terms of your will, a court will not look at it until you have died and it’s time for your estate to be probated.
Why can’t I use a power of attorney instead of a will?
A power of attorney gives you the ability to name a representative who will manage some or all of your responsibilities. However, powers of attorney automatically terminate upon your death. If you want to make decisions that apply after death, you have to use a will have a power of attorney will be ineffective.
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