Curtis P. Patalano, LLC 

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Curtis P. Patalano, LLC provides high quality, affordable legal services focusing on estate planning and probate. We take extra measures to ensure your privacy.

 

WILL

 

You should execute a will that states your wishes and intentions regarding how your estate will be distributed upon your death. A will also names the personal representative or executor you choose to carry out your intentions. A will must be properly drafted and executed in accordance with the law while you are legally competent to do so.

There is a common misconception that if you do not have a will, the state will take your assets upon death. The state will not take your assets as long as you leave behind heirs, which could be your spouse, children, grandchildren, parents, siblings, aunts, uncles, and cousins. However, the laws of the state where you reside at the time of your death will control to whom and in what shares your assets will be distributed if you die without a will. The state laws may not reflect your personal intentions. Further, if you do not have a will naming your own choice of a personal representative or executor, any legally interested person can petition the court to be appointed. This may not be the person you would have chosen to handle your affairs.

 

In many cases a simple will is sufficient to accomplish your objectives. With larger estates, more elaborate estate planning may be required.

 

LIVING TRUST

A living trust is a written legal document that can help avoid probate when you die as well as helping you achieve other goals. With a living trust, your assets are added to the trust, administered for your benefit while you are alive, and then transferred to your beneficiaries when you die.

Most people name themselves as the trustee in charge of managing their trust's assets. This way, even though your assets have been put into the trust, you can remain in full control of your assets during your lifetime. You can also name a successor trustee who will manage the trust's assets if you ever become unable or unwilling to do so yourself.

Living trusts are sometimes referred to as revocable inter vivos trusts or grantor trusts. These trusts may be amended or revoked at any time by the person or persons who created them as long as he, she, or they are still competent.

Your living trust gives your trustee the legal right to manage and control the assets held in your trust. The trust instructs your trustee to manage the trust's assets for your benefit during your lifetime. The trust names the beneficiaries who will receive the trust's assets when you die. Trusts give guidance and certain powers and authority to the trustee to manage and distribute your trust's assets.

A living trust can be the most important part of your estate plan.

 

DURABLE POWER OF ATTORNEY / HEALTH CARE PROXY / LIVING WILL

These documents allow you to appoint someone you personally select to make financial, legal, and medical decisions for you in the event you become incapacitated. These are legal documents that protect you during your lifetime. A failure to execute these legal documents while healthy and competent could result in the court having to appoint a guardian for you. The guardianship process is a legal process requiring court appearances and public notices. In most cases, the guardianship process may be totally avoided by some simple lifetime planning accomplished while you are still legally competent. Furthermore, a court-appointed guardian may be someone you would not have chosen, including a complete stranger, appointed by the court.

 

PROBATE

Probate is the legal process that follows the death of an individual. The probate process is where the Last Will and Testament is presented to the probate court. As part of this process, the individuals nominated within the will petition the court to be appointed personal representatives/executors of the estate. The assets of the estate are then inventoried and collected, the final bills are paid, and the estate is distributed according to the terms of the will. Depending upon the complexity of the estate, the duration of the probate process is usually anywhere from one to three years. The probate process is governed by state law.

 

FAQs

Do I really need a will?

Whether you are married, single, have minor children, or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets. Even people that have living trusts should also have a will. Without a will, any property not named in the trust will pass according to state law, not necessarily in accordance with your wishes. You need to be of legal age and of sound mind to execute a will.

Who will care for and make decisions for my children in my absence?

If you have minor children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though the court has the ultimate authority to appoint a guardian, a will informs the court who you want to raise your children.

Further, a will should set forth what assets your children will receive, how the assets will be distributed, and who will manage the assets until such time as your children are able to manage the assets themselves. Fortunately, a will affords you many options to control the disposition of assets to your children if you should die while your children are still minors. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children either inside or outside of your will, you can even condition when and how they will receive benefits.

 

How Do I Sign Documents in a Fiduciary Capacity?

 

An Executor signs: "John W. Smith, Executor (or Personal Representative) of the Estate of Mary J. Doe, Deceased." A Trustee signs, "Pamela G. Smith, Trustee."

 

How Do I Sign Documents as a Power of Attorney?

 

The American Bar Association sanctions two ways that an agent can sign. If you are Michael R. Jones empowered as the agent for Mary T. Jones, for example, you could sign either as "Mary T. Jones, by Michael R. Jones under Power of Attorney" or "Michael R. Jones, Attorney-in-Fact for Mary T. Jones."