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Wills and Durable Power of Attorney

Wills and Durable Power of Attorney

The law offers many protections for married couples, because it assumes that close family members are the appropriate parties to make tough decisions and carry on the legacy of a loved one. Perhaps most importantly, this means that spouses are going to inherit most of a deceased person’s estate as a default, and a spouse is also generally going to be empowered to make medical decisions for their incapacitated partner.  Anyone that feels like they are in this type of committed relationship but has not been married should take steps to protect their role.  

Durable powers of attorney for health care

Most states will allow an individual to appoint someone to make medical decisions for them if that individual loses the ability to manage his or her own affairs.  This is done by granting durable powers of attorney, which is also sometimes called a medical directive or living will.  Regardless of the exact label, this is a document that can explain in writing some medical decisions that have been made in advance and then appoint someone to make further decisions if necessary.  

Many states have gone so far as to put an easily-filled form into law.  For example, Alabama’s law asks individuals to decide if they would want life sustaining treatment if they became terminally ill or permanently unconscious, and then the law asks individuals to name a person as a health care proxy that would make any further medical decisions.

Durable powers of attorney for finances

The law generally allows an individual to nominate an agent to be appointed to handle their finances if that ever became necessary.  Maryland’s law, as an example, provides a specific form for this decision, and that form warns that it grants very sweeping power.  The form would allow the agent to make transactions, manage lawsuits, hire professionals, and control investments on behalf of an incapacitated individual.  

Wills and other conveyance devices

When someone passes away, their property is usually passed along according to their will.  If the deceased had no will, then state law generally directs the property to a spouse or children of the deceased.  Without a will, a surviving partner can find his or her joint property must be passed along to children or other family instead of remaining with a cohabiting partner.  Having a valid will can ensure that remaining property is conveyed as the deceased would have wished.  To be valid, a will generally just needs to be a written expression of how an estate should be divided, and it usually needs to be signed in the presence of two witnesses who would then also sign.

Related: Wills and Marriage 

There are also other devices that can allow individuals to completely avoid the estate probate process.  For example, a bank account can be setup to automatically transfer all the assets from a deceased person to a chosen beneficiary.  The same is true for most retirement accounts or life insurance policies.  Real property, like a home, can also be held jointly with a right of survivorship in many instances, which would mean that if one owner dies the other owner would instantly become the sole owner of the property.

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