Arlington Family Lawyer
Durable Power of Attorney –
Majority of Elder Law persists of having peace of mind knowing that you have a backup just in case a situation arises. Majority of elder clients want to insure that they are in fact prepared in the event of a long stay at a hospital or have to enter a rehabilitation facility. By executing a Durable Power of Attorney, this insures that bills will not only be paid but it allows the client to have that peace of mind knowing that if someone mishandles their finances they can pursue legal action against their agent.
When handling Elder Law you will constantly be asked if Guardianships are necessary for their family members. Even though Guardianships are necessary, if you consult with an Elder Law Attorney the Courts do not have to be involved. With advanced Life Estate Planning you are able to create Trusts, and Estate Planning documents that allow you to direct whom you wish to care for your finances, guardian and Trustee’s without the Courts approval, costs or interference with your family affairs. Majority of family members prefer to be the voice for their family member opposed to having the Courts determine who is best suited to provide for your loved one.
Do I have to have to Probate my will?
Yes. The majority of wills do in fact have to be probated if there are any assets to transfer title upon. It is so common that people have the misconception that just because they have a will there is not a need to Probate that will. The will is simply an instrument and provides direction to the division of assets. Probating the will and being sworn in by a Judge gives you the power to not only distribute the funds, but grants you the access to acquire those funds and obtain assets for disbursement per the will.
Majority of people believe that after they attend the hearing appointing them as Executor or Executrixes of an Estate that the responsibility of the Executor ceases with receiving the Letters of Testamentary. The responsibility simply begins with swearing in the Administrator and the legal responsibility of administering the Estate officially commences.
Some of the responsibilities of the Executor are to notify of all the heirs that are to be a recipient of the Estate. This task alone can prove to be difficult at times when families drift apart through the years; however, the Executor has a fiduciary duty to notify all heirs at law and may even have to post an announcement in the local newspaper.
After notifying all heirs and providing them with copies of the will if there is one, the Executor then has to notify all the creditors of the Estate by official publication. Once notice has been published, the Executor has to then begin to negotiate the outstanding bills that are against the Estate. With the assistance of an attorney, the debtors are more than likely able to accept a reduction of the balance owed by the Decedent. The attorney negotiates on behalf of the Executor and has to keep a record of all funds paid on behalf of the Estate. The Executor has the final approval and must authorize payments to all creditors. The attorney then must keep a ledger of all payments paid and include them within the Inventory for the Courts approval.
With the help of an attorney the Executor then must complete an Inventory, Appraisement and list of Claims due and owing for the Estate. The executor must Inventory all items of the Estate including real property and even personal items of the Decedent. Most Estates you are able to waive an appraiser; however, the Executor is responsible for inventorying the entire Estate. The purpose of this is to obtain the total value of the Estate so that the funds can be distributed to the heirs at law or the heirs that are listed within the Decedent’s last will and testament.
Once the Inventory has been investigated and approved by the Judge; the Judge will then sign the Order Approving the Inventory. After this occurs the Executor then has the ability to begin distribution of the Estate. The Executor must provide the beneficiaries with copies of the Inventory and have the attorney draft receipts for the division of either property or funds that the beneficiary is to receive. All beneficiaries must sign for the acceptance of funds in order to relinquish the Executor from its duties.
The Executor is bound by the Courts and obligated to fulfill all duties of the Estate. If the Executor does not comply accordingly, then a dispute or a contest can arise from lack of maintaining the fiduciary duty to the Estate. The Executor must distribute all assets in accordance to the Last Will and Testament and if they do not then they are subject to removal as the Executor and can even have a lawsuit filed against them for misconduct, or even fraud.
There are a lot of rules and deadlines that are required by the Courts so it is always best to consult with an Arlington family lawyer at Brandy Austin Law Firm, PLLC regardless if you are probating a will, needing a Durable Power of Attorney or simply to file for Guardianship of a loved one. This way you are assured that all your worries are put to rest and you are provided with the accurate information opposed to the plentiful of mistakes that could go wrong.