Pa u l M. W i l l i a m s

Attorney At Law, PLLC

Frequently Asked Questions

If I add my children to the title of my assets, will my estate avoid probate court?

Yes, the assets that are titled jointly between you and your children or other individuals should
automatically pass to them by operation of law upon your death.

The simplicity of joint ownership and its ability to resolve the issue of probate cause many ill advised
individuals to utilize this techniques, without being aware of some of the devastating consequences it may
cause.

Joint ownership increases your liability exposure if a joint owner is involved in a law suite, divorce,
bankruptcy or other legal matters. Moreover, it may cause significant capital gain tax issues upon the
liquidation of the jointly owned asset, which may have been avoided using different strategies.

If I have a revocable trust do I need a last will and testament?

Yes, the trust only controls the distribution of assets that are funded into the trust, by titling assets in the
name of the trust, nominating the trust as a beneficiary, assignment or by other means. Assets that properly
funded into the trust will avoid probate court.

However, if someone passed way and it was discovered that the individual still had assets titled in their
individual name without a beneficiary designation, or transfer on death designation, the probate court would
control the distribution of those assets. The last will and testament would then be the instrument utilized to
determine the disposition of the assets.  Typically if someone has a revocable trust their last will and
testament designates the trust as the sole beneficiary.  

Furthermore, the last will and testament is commonly used to appoint guardians for minor children, which is
extremely important.

If I have a last will and testament, do I need powers of attorney's?

Yes, a last will and testament is only utilized upon death, and is used to determine the heirs of the estate,
the personal representative of the estate and the potential guardianship of minor children.

It is a common mistake for people to presume that their last will and testament will take care of all of their
estate planning needs, including those they may arise during ones lifetime.  During ones lifetime they may
experience different stages of incapacity or inability to make decisions for themselves.  When these
unfortunate effects happen, usually a loved one steps in and takes charge of the incapacitated persons
affairs.  However, without the proper documentation in place, the loved one may have to turn to the
probate court to obtain the power and authority to make decisions that will affect the incapacitated
individual.  Furthermore, it is up to the courts determination to nominate the individual or entity that will
take over the affairs of the incapacitated individual.  The person or entity the court nominates is called the
conservator and/or guardian.

Power of attorney's  are  instruments created during a persons lifetime while they're competent to appoint
someone as their Attorney in-fact and/or Patient Advocate.  The Attorney in-fact is the agent that is
given the power and authority to manage a persons financial affairs, whereas the Patient Advocate is the
agent that is authorized to make all health care or medical decisions.  Typically these documents
only empowers the agents to act on someones behave, when that person is deemed incapacitated.

The benefit of implementing or creating these documents is that they allow you to appoint the individual(s)
you want to assist you in managing your affairs and allows them to avoid the probate court process if you
become incapacitated.