Why do I need a will?
A will tells the world who will receive your property when you die. A will appoints a person to handle winding up your affairs and making sure that your will's last instructions are obeyed. This person is called an executor.
Without a will, the New Jersey Laws of Intestacy apply. These laws say how your property will be distributed among your close family members who survive you. You may not want certain close family members to receive equal shares or to receive any of the property or money you leave behind.
Without a will, the law will appoint someone to administer your estate. This is usually a close relative. This person may not be the individual you trust to carry out your wishes. The individual appointed may be irresponsible or simply not able to perform the duties of winding up your affairs and distributing your property.
A will is not expensive. It is some times more costly not to have one.
What is a Durable Power of Attorney?
A durable power of attorney allows a trusted person to do whatever you might legally do for yourself. The “durable” part of a power of attorney means that it is not revoked automatically if you become mentally disabled, unconscious or mentally or physically too ill to manage your finances or care for yourself.
The person being given the durable power of attorney is held to very high standards of honesty and integrity. This person is called your “attorney in fact.”
Your attorney in fact is required to use his or her best business judgment to handle your property, business, banking, real estate, and personal affairs. The powers you grant can include acting for you if you are away from home for a long period of time, or are physically or mentally unable to handle your money, property and health care decisions.
When does a Durable Power of Attorney become effective?
A durable power of attorney becomes effective immediately upon you signing it. If you want to buy, sell or mortgage real estate such as your home then the power of attorney should be filed with the County Clerk's Office.
What is the difference between a Power of Attorney and a Will?
The power of attorney becomes legally unable to be used upon your death. The attorney in fact has no legal right or power to act upon your passing. Upon death, your Will's executor determines who handles your property and last affairs.
Should I have both a Will and A Durable Power of Attorney?
Most definitely yes.
Can I limit the powers I give to my attorney-in-fact in my power of attorney?
Yes. You can limit your attorney in fact's ability to act for you to narrow circumstances, such as helping you pay your bills by signing checks but not granting the power to sell your home. This is one example. Another example is giving your attorney-in-fact the authority to make the decisions in any lawsuit you are involved in but not to deal with other matters for you.
If I have a Durable Power of Attorney should I also have an Advanced Medical Directive?
Yes. The Advanced Medical Directive is strictly limited to allowing the person you designate to make your healthcare and end of life decisions when you are unable to do so. Your wishes regarding care can be clearly spelled out. You should have a person you trust with your health and safety designated in your Advanced Medical Directive.
The person who makes your medical decisions when you cannot may not be the best person to handle your money, property and financial affairs such as bill paying. Likewise, the person serving as your attorney-in-fact may not be the person you want making your medical decisions when you are unable to do so.
Can I set up a trust to take care of my pets after I am gone?
Yes. There should be a trusted person to take custody and care for your cat, dog, horse or other animals as you would do so. You can set up a trust to provide this person with money for food, shelter and veterinary care. The trust can be funded before your death from your assets or with life insurance.