A will is a document that directs who gets all of your “probate” property. This includes, e.g., anything that is not owned jointly or is not owned by a survivorship account. Importantly, a will is only effective after you die.
A trust is essentially a contract in which a trustee holds property for the benefit of the beneficiaries. Trusts are either revocable or irrevocable. They can be created during your life (generally called a Living Trust or Inter Vivos Trust) or they may be created when you die by including a provision in your will (called a Testamentary Trust).
A trust, when set up properly, will avoid the probate process at your death, and may also provide asset protection from creditors, (e.g., from a law suit, or from the nursing home), divorce, or bankruptcy. In addition, a properly drafted trust can help to protect beneficiaries who are bad with money from themselves, or it may be used to hold and manage money or other assets left to minor children.
They may also be used to minimize taxation both during life and at death. Because of the sometimes complex nature of trusts, make sure to have an attorney explain the scope of what may be accomplished using trusts before pursuing any trust-based planning strategy.
A power of attorney (POA) grants a person who you appoint (called your “agent” or your “attorney-in-fact”) the power to act on your behalf. The person who has granted the authority to the agent is called the principal. In estate planning, a POA is generally given to a spouse and/or an adult child to handle financial matters (and limited healthcare decisions) on the principal’s behalf. The power it confers may be conferred at the time the document is signed, or only upon your disability/incompetency (depending on how it is drafted). It might also require certification by your doctor that you are in need of assistance in making financial and other decisions prior to becoming effective.
A Living Will? A Healthcare POA? These terms are often used interchangeably, but each actually has its own distinct definition. Generally speaking, however, the purpose of these documents is to set out the kind of health care treatment you would or would not want to receive in the event that you are unable to communicate your wishes yourself.
In addition, they may also give someone else (called your “Proxy”) the power to authorize medical treatment, or even to refuse it. Depending upon the specific document, it may grant the person broad power to make decisions, or it may provide detailed instructions that do not grant the discretion to authorize anything that is contrary to what is included in the document.
Probate is a process by which your will is presented to the Probate Court to be “proved.” If you die without a will, the process is called “Estate Administration.” Your heirs are notified of the proceeding and given the opportunity to object. In addition, your creditors may file claims against your estate within a given period of time. The process takes a minimum of six months to complete, but it may take a year or longer depending upon the complexity of the estate and whether there are any disputes among the heirs. While there is no law requiring that you hire an attorney to Probate a decedent’s estate, an attorney is usually required to complete the process properly and efficiently.
When you die without a will, and have an estate that needs to be divided up among your heirs, an estate administration may be filed. An estate administration is similar to the probate of a will.
However, because the decedent died without a will, the individual’s assets will be divided and distributed according to Alabama’s statute of “descent and distribution.” This is also called “intestate succession.” Essentially, the law of intestate succession is the “default” estate plan for people who die without a plan.
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