Protecting your assets upon your passing is very important and The Salas Law Firm can help you properly prepare for the passing of life.

If you would like input on:

Who will receive your property when you die; who will receive your money when you die; or who will be appointed guardian of your minor children when you die.

Then You Need a Will!!!

Wills are for everyone, not just the wealthy. Regardless of how much or how little money you have, a Will ensures that your personal belongings and assets go to the family members or beneficiaries you designate. Without a Will, the court, not you may decide how your assets are distributed.

For any person with children, a will is a must; in order to ensure that you choose your children's guardian. Few people plan to death, but if you die suddenly without a Will, you'll be subjecting your family and loved ones to confusion and anxiety at what will be an already a difficult time.

Will Preparation Starting Point

A Will should always appoint a guardian for minor children, appoint an executor to administer your Will, and spell out specifically how you want your property distributed.

The first step in deciding how you want your property distributed is gathering information. (Please see Client Questionnaire on Forms page)

Is a Basic Will for You?

If the following statements describe you, a basic will is probably enough:

  1. You're under age 50.
  2. You're in pretty good health.
  3. You don't expect to owe estate tax at your death.

On the other hand, if any one of the following applies to you, then you probably need something more than a basic will:

  1. You expect to owe estate tax when either you or your spouse dies.
  2. You want to control what happens to property after your death -- for example, you want to leave some property in trust for your child and have it go to your grandchildren when your child dies.
  3. You have a child with a disability or other special need that you wish to address in your estate plan.
  4. You have children from a prior marriage and you fear conflict between them and your current spouse.
  5. You think someone might contest your Will, claiming that you were not mentally competent when writing it, or that the Will was procured by fraud or duress.

Probate-Avoidance Living Trusts

A basic living trust allows property to avoid probate and to quickly and efficiently pass to the beneficiaries you name, without the hassles and expense of probate court proceedings. A married couple can use one basic living trust to handle both co-owned property and separate property.

Creating a Trust

To create a basic living trust, a declaration of trust is created where the settlor is named trustee.
Next ownership of some or all settlor property is transferred to settlor in his or her capacity as trustee.
In the declaration of trust document, the settlor names the people or organizations he or she wants to inherit the trust property upon death. The beneficiaries may change if desired; additionally the settlor may revoke the trust at any time.

After Death

Upon death, the named beneficiary, successor trustee, in the trust document takes over and transfers ownership of trust property to other designated beneficiaries. In most cases, the successor trustee can handle the whole process in a few weeks with some simple paperwork and no probate court proceedings are required.

Health Care Documents

Two basic documents that allow you to set out your wishes for medical care:

  1. a living will and
  2. a durable power of attorney for health care.

Living Wills

A written statement that details the type of care you want (or don't want) if you become incapacitated. A living will bears no relation to the conventional will or living trust used to leave property at death; it's strictly a place to spell out your health care preferences.
You can use your living will to say as much or as little as you wish about the kind of health care you want to receive.

Powers of Attorney for Health Care

You'll also want what's usually called a durable power of attorney for health care. In this document, you appoint someone you trust to be your health care agent (sometimes called an attorney-in-fact for health care, health care proxy, or surrogate) to make any necessary health care decisions for you and to see that doctors and other health care providers give you the type of care you wish to receive.

When Health Care Documents Take Effect

Your health care documents take effect if your doctor determines that you lack the ability -- often called the "capacity" -- to make your own health care decisions. Lacking capacity usually means that:

  1. You can't understand the nature and consequences of the health care choices that are available to you, and
  2. You are unable to communicate your own wishes for care, either orally, in writing, or through gestures.
Practically speaking, this means that if you are so ill or injured that you cannot express your health care wishes in any way, your documents will spring immediately into effect.

When Health Care Documents End

Your written wishes for health care remain effective as long as you are alive, unless you specifically revoke your documents or a court steps in (but court involvement is very rare). Here are a few specifics about when your health care documents are no longer effective:

  1. You revoke your document. You can change or revoke a health care document at any time. Just be sure that your health care providers and your agent know of your intention to cancel the document.
  2. A court invalidates your document. Most judges recognize that a court is normally not the right place to make health care decisions. However, if your health care is the subject of a dispute and someone questions the validity of your health care directives, the matter may end up before a judge.
  3. If someone doubts that you had the mental capacity to prepare a legally valid health care document, that person can ask a court to invalidate your document. Such lawsuits are rare, but they do sometimes occur.

It is also possible that a court could invalidate your document if it wasn't properly completed -- for example, if you did not meet your state's requirements for having the document notarized or witnessed.

For immediate help with your Estate Plan, contact The Salas Law Firm by calling (970) 797-2519.

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