Our Wide Range of Services
- Estate Administration
- Living Wills
- Trust Administration
- Health Care Power of Attorney
- Power of Attorney
Estate Administration for the average estate can be broken down into seven (7) basic steps:
- Validation of the decedent’s Will (if applicable).
- Appointment of the personal representative (executor or administrator)
- Inventory of the estate assets (and non-estate assets, particularly if an estate tax return is required)
- Payment of administrative expenses, debts, and claims against the estate
- Filing of the appropriate tax returns, and payment of any estate tax liabilities
- Distribution of the remaining (net) estate assets to the appropriate beneficiaries
- The filing of a Final Account and the court’s discharge of the personal representative from their duties and responsibilities
For smaller estates less complicated steps and procedures are required.
It is important for the estate representative to have a close working relationship with the probate attorney. Attorney Tully will help you understand the probate process and the importance of the documents that need to be filed with the court, as well as other county offices. When necessary, Attorney Tully will attend court hearings with the estate representative, estate beneficiaries, and other interested parties, e.g., estate creditors.
The probate process is often completed within six (6) to eight (8) months. Issues relating to family disputes, creditors, tax returns, and the sale of real estate may delay the closing of the estate administration process. An experienced probate attorney can expedite the settling of the estate administration process.
The first fundamental tool you will need in your estate planning is a Last Will and Testament. A will is a legal document stating how you would like to have your estate distributed upon your death. A will is filed with the court in the county where the decedent resided at the time of his or her death. The standard will contains the following information: the person’s name, city and state where they reside, statement of specific transfers of money or property to certain beneficiaries, statement of who will receive the balance of the estate, the appointment of a representative of the estate, also known as the executor, instructions for the executor to follow and powers granted, a place where the testator may sign and date the will, and a declaration that two (2) witnesses sign stating that they witnessed the signing by the testator and that the testator was of a sound mind. If minor children are named as beneficiaries of the will, additional provisions are required to permit the court to monitor and protect the property of the minor until such time as they become entitled to receive their inheritance.
If a will is not executed in compliance with the formalities of state law, the document will be discarded, and the estate administration process will take place as if the decedent had died without a will, and state law will mandate how your property is to be distributed.
A living will is a legal document executed in conformity with state law where you express your wishes regarding the use of life sustaining treatment if you become terminally ill or permanently unconscious.
This document only becomes effective when you cannot communicate and you are terminally ill or permanent unconscious. This document also instructs medical personnel regarding life saving measures, and it may be changed or revoked at any time. Before life support will be withdrawn you must be in a permanently unconscious state, and two (2) doctors must examine you and agree that you will not recover.
If you own real estate, you should be aware of the types of deeds that are available to you which may save substantial time and expense to your loved ones upon your death.
A joint and survivorship deed conveys title to two (2) or more people so that when one or more of the new owners die, the property is transferred to the surviving owner(s) without the need for estate administration for the deceased owner(s). Typically, this deed is used between a husband and wife when the real estate is owned by one spouse and the property is to be conveyed to the surviving spouse upon the death of the first spouse.
A transfer on death deed conveys real estate to the beneficiary (or beneficiaries) upon the death of the owner of the real estate. The beneficiary has no present interest in the real estate until the death of the owner. The owner is free to change the beneficiaries on the deed, and the creditors or spouses of the beneficiaries have no interest in the real estate until the death of the owner.
Other deeds that are often prepared by Attorney Tully are warranty deeds, deeds transferring real estate to a trust, and quit-claim deeds.
Consultation and a thorough understanding of your needs and goals with a knowledgeable attorney is required before you take the important step of executing a new deed and filing it with the county recorder’s office.
A trust is a legal document and a separate legal entity (analogous to a corporation) that controls the property you place into it. The person who creates the trust is called "Trustor," the person who manages the trust property is called "Trustee," and the person who receives the benefits of the trust property is called the "Trust Beneficiary". When a husband and wife create a trust, they typically wear all three (3) hats at the same time, Trustor, Trustee, and Trust Beneficiary. When both are deceased, a successor trustee is named in the trust document to "wrap things up" in a similar situation that an executor or administrator would "wrap things up" in court when someone dies.
Many people prefer trusts because the terms of the trust are not subject to public scrutiny (unlike wills which are open to public inspection), and they wish to keep their financial affairs private upon their death.
The Trustee is the person (or corporation, such as a bank) who manages the trust assets in accordance with the provisions of the trust document. The basic duties of the Trustee involve the correct management and investment of the trust assets, along with the accumulation and distribution of the income and principal of the trust assets.
The Trustee is also responsible for the filing of the appropriate tax returns for the trust. The Trustee has a strict duty to administer the trust solely in the best interests of the trust beneficiaries and to treat the beneficiaries fairly and impartially. If a Trustee fails to act in this manner, he may be liable to the beneficiaries for any loss they sustain as a result of the Trustee’s negligent management of the trust assets.
Although the Trustee may not delegate his duties and responsibilities to others, the Trustee is permitted to hire attorneys, accountants, investment advisors, or agents to consult with regarding the administration of the trust, and he may pay for these services from the assets of the trust.
If you are named as a Trustee (or you are a trust beneficiary), Attorney Tully can assist you relative to your duties and responsibilities as Trustee, or with respect to your right and entitlement to the trust assets as a trust beneficiary.
Health Care Power of Attorney
A health care power of attorney (or durable power of attorney for health care) is a legal document that authorizes one or more persons to make health care decisions for you if there comes a point in time when you are unable to do so. For example, if you are unconscious as a result of an automobile accident, or you suffer a heart attack or a stroke, this document would specify whom you have selected to make decisions for you as to your treatment and medical care. This document only becomes effective when you cannot communicate your medical decisions. You can also remove the persons named in your health care power of attorney and select new agents you want to make your health care decisions.
Power of Attorney
As we become older it often becomes more troublesome to handle our financial affairs in a smooth and efficient manner. An effective method to address this concern is to delegate to those whom we trust the responsibility of handling our financial affairs.
A power of attorney is a document which is signed before two (2) witnesses and a notary public which authorizes another person, or persons, to perform the acts which are set forth in the document.
A properly drawn power of attorney document can save you thousands of dollars in legal fees when compared to a guardianship proceeding. Whereas a court guardianship proceeding requires ongoing court costs, bond premiums, and attorney fees, a power of attorney document can be prepared for a nominal fee which is less than one-half of the initial guardianship filing fee!
If you feel that you or an elderly loved one would benefit today, or in the foreseeable future, to have this document drafted for “a rainy day,” it may be important to consult with your attorney to insure that your desires are properly set forth in the correct form.
If those closest to you are unable to make appropriate decisions with respect to their health care, lifestyle, or finances, it may be necessary to file the appropriate documents with the court to appoint a guardian to act on their behalf. When a guardian is appointed by the court, the guardian will make decisions regarding your loved one’s medical, living, and finances because your loved one no longer has ability to manage his or her affairs.
Common guardianship scenarios include a minor receiving funds when a parent dies without a will, or a minor receiving money from a personal injury claim, or an aged parent or relative is afflicted with Dementia or Alzheimer’s disease and has no insight into their illness.
When a guardian is appointed, the court requires that the guardian comply with strict filing requirements, and the guardian must account for all income that comes into their possession, and all disbursements expended on behalf of the disabled person or minor child.
Attorney Tully will assist you in complying with the guardianship law in an effective and sensitive manner.
An adoption is a statutory process of terminating a child’s legal right and duties toward their natural parent and substituting similar rights and duties with their adoptive parent. The most common scenario occurs in a step-parent adoption when the step-parent wishes to adopt the child of his or her spouse. Typically, the natural parent whose rights are being severed in the adoption process has failed to support the adoptive child for at least one (1) year preceding the filing of the adoption papers with the court, or in the alternative, the natural parent has failed to communicate with the adoptive child for at least one (1) year preceding the filing of the adoption papers with the court. Once a child is legally adopted, he or she severs all rights with the natural parent, and for all practical purposes, is treated in the same fashion as a “blood” child of the adoptive parent, e.g., governmental benefits and inheritance.
If you feel that you have a child that you would like to have adopted by your spouse, you should contact a qualified attorney to discuss your options.
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