Basics of Wills:
Okay, I don’t know how well this is going to lend itself to a rapid-fire summary. Wills has some unfortunate technical rules that you just have to brute-force your way through to understand. The good news is it should be very easy to recognize issues on a Wills essay because most of the chapters in it concern very different material. You already know what these general issues are:
Why is property sometimes inherited automatically as opposed to by a will (a devise)? How does it work when you’re married and some of your property is locked up with the surviving spouse? Can I disown my shitty kid? What do you actually have to do to create a valid will? Why do jolly family members become bitter, childish bitches when the matriarch dies – like what are they even fighting over? How is the property actually handled when the person dies? And what are some alternatives to wills?
We’ll go through it like this:
1. Introduction to Intestacy and Probate Process, the two dumbest legal words we have to know for this entire test.
2. Identifying the players.
3. The Surviving Spouse gets first crack.
4. Intestate rules
5. A valid will: constructing it properly
6. Substantive strategies the will writer can use.
7. Reasons to fight over whether the will should be valid.
8. The probate process, detailed.
1. Introduction to Intestacy and Probate Process, the two dumbest legal words we have to know for this entire test.
Contrary to what you thought three months ago, the adored “Probate Process” you always hear shitty judges getting remanded to in their local county courts has nothing to do with juvenile rights, punishing crime, or probationary hearings for convicts. Probate means someone wrote a will, and when they die the will has to be “probated” (verified and processed) through the court. Probate is a protective process available to people who are contesting the validity of a will or procedure of the will’s administration (giving out the funds to everyone).
The overall policy concern you need to know about the probate process is that it sucks and everyone hates it! People who write their wills, who are still alive, hate the probate process because they know there’s a chance the court will fuck everything up and give their money and prized possessions to people they don’t want it to go to. This is how everyone imagines the court will act during the probate process: “Oh, what’s that? You thought you validly signed away your house to your favorite grandson? Haha, think again, grandpa. It turns out that you have an outstanding loan of $50,000 to pay back that you never did before your death, so guess what? Bank of America gets to foreclose on your house to take its loan back. Oh, and look at this, you think you signed your piano to your friend Louis, but she helped you write the will, so we have to cut her out due to a law you never heard about called Undue Influence.”
Wow. That sounds pretty miserable. Is it really like that?
The hell do I know?! I’ve never done a probate case. The closest I ever came was when a CPA uncle-in-law of mine told me that one of his clients just gave her entire fortune to a live-in nurse and then died. O.O After taking Trusts & Estates in law school, I told him my professional opinion was that he should talk to a real probate lawyer.
Obviously though, the quality of your will and just how well it’s going to survive the probate process depends on the quality of your attorney and just how complicated you want to make this stuff. Unfortunately, in our essays, the dead person tends to enjoy violating the Rule against Perpetuities and making her family go on a complicated Sodoku puzzle voyage as a matter of course. What you can do is learn these basic rules so that you can at least narrow down the big issues to official, lawyerly conclusions like “This will be a close call, but Grandma probably keeps her husband’s shit.”
Okay, so that’s the probate process. What in infancy, er, intestacy?
The intestacy process is for people who have even less foresight than people who write wills. This is the state-mandated process for when someone either has no will at all or has an invalid will that doesn’t account for everything. The state has invented rules of automatic succession. As a matter of policy, the intestacy rules heavily favor the dead person’s surviving spouse, and then any child of the dead person. From then on down, it’s just a matter of completing a fairly logical system of puzzle rules to determine who gets what and how it’s divided.
That sounds awfully shitty. Can I do something for my own property that is neither probate nor intestacy?
Yes. Everyone with a brain does this: Make a trust account. It’s much better because you can create it while you’re still alive, appoint someone to run it for you complete with those awesome fiduciary duties we talked about in principal/agency law (they can get sued for doing a shitty job, even after you die!), and it can even be distributed over a long period of time after you die instead of one big instant-explosion of property at the time of your death like with wills. Trusts are pretty awesome if you have a good person in charge of running your trust.
Some other alternatives: Pay-on-death contracts, like life insurance, and joint bank accounts. Also, give your shit away before you die! A deed you convey before your death is no longer subject to the reach of a will or the rules of intestate succession.
But you don’t need to worry about this stuff right now.
2. Identifying the players.
a.) The dead person whose property is getting divided up. Okay, this is what we got: We got the Testator/Decedent. They’re the ones writing the will, or whose property is otherwise going to be subject to the rules of intestate succession if they didn’t write a valid will. They’re only called the testator if they wrote a will. If we’re doing intestate succession, then they’re called the decedent.
b.) Heirs. Who are your heirs? Trick question! You don’t have any heirs until you die! Heirs are only people who take from automatic intestate succession. They are the direct and first takers when someone dies. If you die and your only living relatives are two children, those two children are your heirs. If you die with a wife and two kids, you have only one heir: your wife.
c.) Issue. This is the third-dumbest word you have to learn for the bar exam. Issue is plural for all downward lineal blood/adopted children. Your issue are your kids that you personally are responsible for making with your own genitalia or adopting. If you marry into a relationship with someone else who already has kids, those kids are not your issue unless you formally adopt them.
d.) Non-Issue. These are kids you aren’t responsible for creating and haven’t adopted. There are a few important exceptions though, like “equitable adoption,” where a foster parent tried to adopt and treated the kid as their own, but was never able to fully complete the legal process. In that case, the kid can inherit from his dead foster parent directly, but can’t inherit “through” the dead foster parent from any of the foster parent’s own parents/spouse/devisors. Probably don’t need to know that rule. Additionally, if a non-marital kid can prove paternity after the father dies and the father held the kid out as his own, then that kid will inherit.
e.) Pre-decedent. Anyone who dies before the testator/decedent dies and the property becomes subject to distribution.
f.) Creditors/Third parties. Guess what? They’re baaaaaaaack. These fucking creditors are in every financial/transaction-related subject. They want their money! And they don’t care that the painting you’re giving your nephew in your will holds a very special place in both of your hearts – you should have paid them back that loan you used to re-paint your deck before you died.
g.) The surviving spouse. This person I’m putting at the end because they can screw up a will even more than creditors. The surviving spouse gets his/her share before everyone else in your will/the intestate process. If they’re unsatisfied with your shitty will, they can even choose to take what they would have gotten under intestate rules. This is because, as a matter of policy, we don’t want to leave married people, especially married people who depended on the other person for an income and have no marketable job skills, to be left out in the ocean by themselves. Guess what? You have to know your basic community property or equitable distribution rules to know how much they take. Yeah, sorry. Most important though: the surviving spouse is anyone in a valid marriage with you who did not die or completely divorce you by the time of your death. What’s that? You legally separated and weren’t even living in the same state at your death? That’s cute – you’re still giving half your shit to her because you never formally divorced.
3. In detail: The Surviving Spouse gets the first crack at the whip.
Okay, so as I just got done saying, you effectively cannot disinherit someone who is legally married to you. Your surviving spouse, so long as they had not fully divorced from you or pre-deceased you, is probably getting approximately half of all your shit whether you like it or not.
I hate my beloved spouse. What can I do to make sure she takes nothing?
Are you deaf? I just told you, you can’t do that. If you hate your spouse, divorce them.
Divorce would take too much time. Just tell me, how much exactly does the surviving spouse get from me?
It depends on whether you live in a community property or equitable distribution state. Remember from your Conflicts of Law materials that the state where the testator/decedent lived at the time of death will most likely control this question.
a.) Community Property State. This is refreshingly easy! If you live in a community property state, your surviving spouse takes half of your property acquired during the marriage, whether or not you write a will! Bam, done! The only stuff that doesn’t count are things you inherited that didn’t have your spouse’s name on it, and gifts in your name. And yes, you read that right – your surviving spouse (SS) takes half your shit even if you wanted to give her less than that in your will.
b.) Equity Distribution/Uniform Probate Code. Fuck this rule. This is really complicated. If you’re in a state where this matters, you’ll want to just review it until it’s memorized. This only matters for intestacy though; however, if the wife is unhappy with teeny gift you give her in your will, then she can elect a share according to the UPC’s intestate rules.
Here are the basic rules:
i. If you and your spouse share all of the same kids, and you have no surviving parents, then the SS takes everything. The idea is that she’ll give both of your property to your kids later on when she dies.
ii. If you have no descendants of any kind but do have a surviving parent, then SS takes $300,000 and 75% of the remainder of your estate, and the rest gets distributed to everyone else by intestate rules.
iii. If your only issue are also issue of the SS, but the SS has other kids of his own that aren’t yours, then the SS takes $225,000 and 50% of your remainder estate, and the rest is divided through intestate rules.
iv. If you have issue that are not related to SS, like kids before your most recent marriage, then SS takes only $150,000 and 50% of the remainder of your estate, and the rest is divided intestate.
Remember: These rules don’t apply for probated wills or Community Property states. However, the surviving spouse in an equity state can still take an intestate share under the UPC’s rules above if he is unhappy with what you gave him in your will.
Define… “surviving” spouse.
Yeah, okay, so there’s technically a time limit we care about. This results in some pretty funny (and shitty) scenarios for spouses. The general rules are:
a.) Putative spouses: (these are invalidly married spouses). They get nothing unless they believed in good faith that they were validly married to you, the testator/decedent.
b.) Common Law survival: If you survive your spouse by one single second in a plane crash that kills both of you, you get his estate, and his estate takes nothing from you.
c.) UPC (the paragon of logic in this sea of stupid law): There’s a 120-hour rule. If you both died within 120 hours of each other, your property each passes to each other’s estate as if you predeceased each other. So, I guess that means your estates basically swap half their shit with each other? I dunno, that would be really weird. But it makes sense on a fairness level.
d.) Define “dead” for me: Hyper-Technical-Man to the rescue! At Common law, if your Circulatory system irreversibly stops, you’re dead. Modern standard says, if your brain dies, only then are your dead. I associate the modern standard with having a brain, because it actually makes more sense.
4. The Intestate Process.
Okay, so we’ve finally, painstakingly, determined who the intestate issue are, and what chunk of the estate even survives past the surviving spouse to get distributed down your lineal blood line. Thank God.
There are three different modes of intestate succession. I’m truly sorry, but they’re visually complex and could take forever to explain. I think you can safely review your longer outlines or review your prep company’s video lecture on this specific topic, and you’ll probably remember it well enough to do okay.
a.) Per Stirpes (Per Stir-pees is how it’s pronounced. I remember it because it’s too stupid to forget.) How many living issue do you have right now? They get a share. Also, any pre-deceased issue who have issue of their own, get a share, which gets split amongst their own issue.
b.) Per Capita with representation. You just skip your own issue’s line if you don’t have any living issue, and keep going down the lineal chain until you arrive at a generation where there are living people. Then you proceed as if those people are your direct issue and you had no children/grandchildren/greatgrandchildren between them. Apply normal rules of per stirpes at that point.
c.) Per Capita at each generation. This is the complicated one. First, like with representation, you skip down to the generation that has at least one surviving member. Then you giving shares to whoever is still alive. You also see if any dead people at that generation have surviving issue. If so, you pool all the dead peoples’ shares, and split it amongst all issue of predeceased people. Just look at your charts provided by your prep company.
What happens if I have no surviving spouse or issue whatsoever?
Several possibilities. Do you have brothers, sisters, or cousins? If so, the “parentelic” approach finds your nearest collateral line until it finds someone. The “degree of relationship” approach just counts the number of relatives in any direction and chooses the closest person.
The UPC approach is the only one that makes much sense. If you have no spouse or issue, it goes up to your parents. Is one of your parents alive? Then your parent(s) take(s). Are your parents dead? Okay. Did they have any other children/grandchildren? It goes to them in lineal order. Oh, but your parents don’t have any other issue? Alright, then we go to your grandparents. Are they still alive? No? Do your grandparents have any issue? No? Okay, NOW it finally escheats to the state. That’s French or Latin or something for “your hometown gets to buy a new armored car for its police department.”
5. Fuck Intestacy: We’re making a WILL, baby. So… how do we do it?
Two kinds of wills: Formal “attested” wills, or “holographic” wills. Holographic wills are shitty. You want an attested will, trust me.
a.) Holographic Wills. This is a hand-written will, signed by the testator without any witnesses. It could be something as simple as writing your will on a napkin. Holographic wills suck because, in the first place, some states ban them and other hand-written modifications of formal wills. They also suck because they’re unreliable trash. You’re just kind of praying that the court will accept it’s your handwriting and that you weren’t suffering any problems of mental incapacity, duress, or undue influence at the time you wrote it.
b.) Fuck that. Let’s make a real will – the formal attested will. Right on, man. This is what you need: (1) the will must be signed in writing, and two or more witnesses must be able to attest that you signed it.
To what extent must an attested will be signed?
Depends on the state. Some states require the signature to be at the very end of the will, or the entire thing is invalid. Other states will only count as part of the will everything that is above the signature, so if you put your signature in the middle, only the first half will be valid. The point is: the testator must have intent to be signing a will. If he thinks he’s singing a check to McDonalds for a happy meal, that isn’t a valid will.
How do the witnesses work?
A couple of issues you can have fun bullshitting about on the exam:
a.) The witnesses may or may not be required to actually witness the signature of the testator; in some states, they need only be “aware” that the testator is signing it. Like, maybe they’re in the room with the testator when he signs it, or maybe they’re watching him do it over Skype. Or, maybe the testator calls his witnesses up by phone and says “Hey, there’s a document in my desk called Tom’s Will. I’m signing it right now.”
b.) The witness may or may not have to be “disinterested.” Disinterested means that the witness does not stand to gain anything from the will. You can imagine court cases where very interested witnesses say “Trust me, I watched him sign this will that I just pulled out of my pockets. What are the odds right?” At common law, if you don’t have at least two disinterested wills, then the entire will is invalid! Under the “Purge” theory, any interested witness will simply take nothing beyond their intestate share, even if the will gives them a ton. And under the UPC’s approach, we don’t care about interested witnesses at all, and they take whatever’s in the will.
How strictly do all these rules need to be followed?
At common law, if you deviate even a little, you’re fucked and the whole will is thrown out. Under the UPC, “substantial compliance” will allow for the will to be enforced, so long as there’s clear and convincing evidence that this is truly the testator’s intent.
What about oral wills?
Fuck ‘em. They’re never valid anywhere… unless you’re literally dying and have just a few remaining moments and no way to write anything down. You obviously need a witness to testify to your intent in that situation.
Can you modify a will later?
Sure can. You can create a “codicil” that is just a document that gives reference to your previous will and modifies it a little, or you can create a completely new will.
What happens if you destroy the will, like tear it up?
As long as there is enough evidence demonstrating your intent to destroy it, that will shall be considered void, even if there are other copies of the same will that you didn’t get around to destroying.
What if these idiots lose my will after I die, before everything is distributed?
The burden is on the person arguing for something that the will was either destroyed or still in existence. Duplicate wills are okay as long as they aren’t photocopies.
What if I want to revoke a new will or codicil and re-new an old will?
Fucking seriously? Ugh. Yes you can do this. It’s called substitution, and it happens automatically at common law unless you give an indication of your intent not to re-new an earlier will. However, in most states (UPC), you have to give some positive indication of your intent to re-new the old will.
What happens if I give something to my husband in a will, but then divorce him and never write another will?
Don’t worry about it. Divorce is presumed to disinherit a spouse in a will unless you give some other indication of your intent to stay best friends with them in the will and give them the money regardless of marital status at the time of your death. If you say “my spouse” in your will, and you’re married to a different spouse at the time of your death, then your new spouse is going to be the spouse the court gives it to.
Can I make hand-written notes in the margins of a formally attested will?
Why are you asking all these pain-in-the-ass quest— Yes, you can do that, unless the essay’s state has a statute banning holographic wills or handwritten modifications.
What happens if I cross something out and add something into the will, but it turns out only my cross-out is valid and the written addition is invalid under the law? Does that person get nothing?!
That’s called Dependent Relative Revocation. The cross-out revocation will be disregarded if the whole point of crossing something out in the will was to replace it with a provision that you didn’t realize was invalid. This is a super fair, logical rule.
Can I make a binding will via a contract, where both of us make a vow to will something to the other or an intended third party beneficiary?
Seriously, why the fuck would you do that? Yes you can do that. The contract only becomes binding once one of two contracting parties dies. Until then it can be rescinded or modified whenever you want.
Can I reference an independent, unsinged document in my will?
Yes, as long as the independent document is sufficiently identifiable, intentional, and was written before you signed your will. Ex: “Refer to the 100-page word document on my computer called Tanicius’s Will Details.”
6. Substantive issues and strategies to consider in a will.
These issues concern the nature of the actual gifts you make. This stuff is important because there are legal hierarchies of importance in a will when the estate is not big enough to give everyone what you wanted to give them at the time of your death.
a.) Classifying gifts: specific, general, demonstrative, residuary.
i. Specific gifts are reasonably capable of being distinguished for other gifts.
ii. General gifts use general estate assets, such as “the house,” or “the residuary.”
iii. Demonstrative gifts comes from a “particular source.”
iv. Residuary is everything left over.
b.) Lapsing. This is the rule where, if someone predeceases you before your will gives them anything, normally their issue are shit out of luck and their entire line gets nothing from your will. Most states, and most essay jurisdictions, will have an “anti-lapse” statute that says that blood relatives of the beneficiary in the will still get that gift.
c.) Abatement. DISTINGUISH THIS FROM EXONERATION. They are NOT the same thing. Exoneration involves creditors; abatement does not involve creditors. Abatement is where there has been a reduction or elimination of gifts before you died, so some people aren’t getting what they were promised in the will. There’s a priority to help these people out, but it will fuck up the gifts that other people. It works in a hierarchy:
i. First, you get rid of intestate property.
ii. Then you get rid of residuary gifts.
iii. Then you get rid of general bequests to non-relatives.
iv. Then you get rid of general gifts to relatives.
v. Then you get rid of specific gifts to non-relatives.
vi. Then you get rid of specific gifts to relatives. (Demonstrative gifts count as specific gifts here).
What is the point of abatement hierarchies?
We operate under this assumption that some property is more important and treasured than other property, and that some people are naturally going to be more important and treasured by the testator. Accordingly, if someone’s specific gift is lacking in funding, we’ll give them someone else’s residuary share because we don’t care about the people who are getting residuary property as much.
d.) Ademption. This is where the testator has affirmatively gotten rid of property he promised in his will before he died. He promises his car to his son, but then when he was 80-years-old he decided “Fuck it, I don’t have a driver’s license anymore and I could use the money, so I’ll sell my car.” Well, now what is the poor son getting? Nothing! Because we assume that the testator was well aware of the effect this would have on his beneficiaries when he made the choice to sell his property. CAVEAT: Under the UPC, the testator has to affirmatively write “this is in satisfaction of my will gift” or it won’t count as a satisfaction and things will get fucked up.
We assume ademption only applies to specific gifts. If you say you’re giving “the house” to someone, and you’ve since sold the house you owned at the time of signing your will and have purchased a new house, that’s a general gift and will still go to the person you gave “the house” to. But if you promised someone “the 100,000 shares of Apple” and have since sold your Apple shares and bought Google shares, the person you promised the Apple shares to gets nothing.
How is ademption different from abatement? Abatement is when there are unexpected circumstances that make pieces of property not as valuable as they were intended to be in the will. Ademption is where the testator makes the choice to get rid of property he promised to someone. We try to help people out when abatement occurs; we leave you to swim with the fishes when ademption occurs.
e.) Ademption by satisfaction. This is where the testator gave a gift promised in the will, to the same named beneficiary, before the testator died and the will sprung into action. So you promised your son you would give him your car in your will, and then you gave him your car before you ever died. He doesn’t get to double-dip into your will and whine and moan about how everyone else is getting something and he’s getting nothing. The little shit got his gift earlier than everyone else. Sorry little Kyle, but when Christmas comes early you don’t get extra gifts under the tree just to make you feel better.
f.) Exoneration of liens and debts. Two rules.
i. At common law, the beneficiary who is receiving real property is entitled to use other people’s property to pay off a lien on the real property. Really shitty right? That’s abatement in action. We care about general gifts like real property more than we care about your stupid family painting, so if the court has to sell off your painting to satisfy a bank’s outstanding mortgage or lien on the house that’s being given to your aunt, tough shit.
ii. Under the UPC, the beneficiary of real property has no entitlement to have anything paid off. If they want to keep the real property gift subject to the lien, then they either have to pay it off themselves, or it’s gonna get foreclosed. The policy is, it wasn’t really your property to own in the first place – you’re getting a gift you ungrateful little shit, so you shouldn’t complain if there are imperfections like encumbrances and liens on the property you inherit.
Okay that’s all well and good. Can we talk about disinheriting people and shit like that? I want to give my spouse a box of pencils and that’s it.
Christ you’re an ass. It’s pretty straight-forward. You can disinherit kids if you want, but you can’t disinherit your surviving spouse, and if you give your spouse a crap gift, they can just elect to take what they would get under intestacy, which you may remember is a huge chunk of your property.
Can people be ungrateful douchenozzles and refuse my gifts? I want to give my niece a car that has a hornet’s nest infestation, lol.
Yeah you can do that, and she can also refuse the gift as long as she does so in good faith after being informed of the gift.
I think my kid is going to murder me. Do I need to change my will to make sure they get nothing?
No just trust in the PoPo, dude. They’ll prosecute your kid and under the “SLAYER DOCTRINE” your kid will get nothing.
What happens if I write a will giving everything to my three kids, but then I have more kids and forget to add them in?
There’s a presumption that you mistakenly forgot to add your new children. Your older kids will lose a share of their gift that will go to your new kids.
7. Reasons to fight over the validity of a will.
So you’re the money-grubbing son-in-law who just found out that the father-in-law you always argued politics with has died and isn’t giving your wife much of anything? Well, here’s how you can go about attacking his will:
a.) First, you need standing. People who do not stand to directly take from a will or intestate shares have no standing and cannot contest a will. This means that a son-in-law can’t contest a will in court, even if his wife stands to gain a lot of stuff from her father, because the son-in-law himself doesn’t actually stand to gain anything directly. His wife would have to be the one who’s named on the court documents as the contesting party. General creditors have no standing to attack a will; they have their own laws to sort out how they get their money, subject to the loan paperwork that was signed.
b.) The testator requires testamentary capacity. The testator must, at the time of executing his will, know the nature of his property, the natural objects of his bounty, and the disposition plan – what it means in the grand scheme. The testator need not be aware of intricate lawyerly details, but they must understand, generally, where their shit is going and to whom. If they did not have this capacity at the time of the will’s execution, either because of their young age or mental incapacity, then the will is subject to attack by pissed-off parties.
c.) The testator had an insane delusion. “I’m giving all of my property to my nurse Alice because when the Martians invade she will need every penny she can get to save the world.” You use the rational person test: if a rational person could not have reached the same belief, it is an insane delusion. Also requires causation. If the testator would have given his property to someone with or without the insane delusion, then the delusion doesn’t matter and the will is still valid.
d.) Undue influence. This is probably the biggest opportunity for attack. If anyone benefitting from a will had a position of authority over the testator, or if the testator was particularly vulnerable to their advice, such as an old lady with a live-in nurse, or an attorney who coincidentally benefits from a will of someone he’s not related to, etc… Then the court is going to have a problem. There is a reverse presumption where the person with influence must prove by a preponderance that they did not exert it unduly. Husband and wife relationships don’t count as undue influence.
e.) Fraud. Well, duh. If you lied to the testator about their assets, or if you forged their will.
f.) Forfeiture clause. This is my favorite rule in all of Wills. You can write a clause into your will saying that if anyone contests their gift, they lose the right to receive anything. LOL! This is a great deterrent for money-grubbing relatives who always beg you for money. However, under the UPC, in most jurisdictions if the contestant has probable cause to contest their gift as inaccurate or mistaken or fraudulent or something, then they are allowed to do so.
8. The Probate Administrative Process, detailed.
Okay, last section, finally. These are just some rules about how the estate must be administered when someone dies.
a.) Time limit. At common law, there is no limit. Under UPC, the estate must be probated within three years of the testator’s death, or the property escheats to the state and the cops get to use the proceeds to buy a tank for their SWAT team.
b.) Jurisdiction. Wherever the testator is domiciled.
c.) Notice: must be given to all interested parties, including indirectly interested parties such as creditors.
d.) Priorities of Property Distribution: VERY IMPORTANT. First, all court and administrative expenses get paid. Then deathbed medical and funeral expenses get paid (or those services wouldn’t exist because they’d never get paid). Then taxes, then secured parties, then liens and judgments, and THEN finally the estate can be distributed to everyone named in the will.
e.) Who is the person who takes care of this shit? The Executor/Administrator. Executors are named in a will; administrators are appointed by the probate court if there is no named executor. They have several duties: give notice to everyone, analyze and inventory the estate, pay out claims to creditors, and distribute everything remaining to the willed parties. They have a fiduciary duty of loyalty and care and can get sued for violating it out of carelessness or a conflict of interest!
What is Power of Attorney? I keep hearing that.
Power of attorney is a power you give someone to administrate your affairs before you die. You can give someone a general power of appointment, so your designated official can give people to property how they deem best for your interests, or you can give them a special power of appointment, which limits the power they can exercise over your estate while you are still alive. The person giving a power of attorney has the power, within the scope of a fiduciary duty owed to you, to exercise contracts, decide your medical treatment, convey property, and will away parts of your estate, in ways meant to further your interests.
The power of attorney can be limited or it can be durable. If it’s durable, it remains even while you’re incapacitated in a hospital and unable to argue with them. Don’t give anyone this power unless you’re willing to deal with the consequences. They can only be sued for intentional misconduct. If you are able, you as the principal can revoke their power at any time prior to your death.
That’s all for wills! Quite a trip. Hope this isn’t too complicated for you. On the downside, there’s a lot of material here. On the upside, it’s not that complicated to understand – there’s just so much of it.
Last edited by Tanicius
on Mon Jul 28, 2014 11:27 am, edited 2 times in total.