Translating Legalese: Estate Planning Terms You Should Know



If you die without a will, it is called “dying intestate” or “intestate succession”. Without proper estate planning, state law and statutes will determine how your estate is distributed. Even if you don’t have many assets, dying without a will can leave behind issues for your spouse or children. If you have minor children, it will not address who you want to care for them or handle their financial affairs. It can also impact benefits of a special needs child. And if your estate needs to go through the probate process? Without a will, you will not be able to choose who administers your estate. Which could leave your assets in the hands of someone who may not be equipped to take on that responsibility.


Power of Attorney:

A power of attorney is a legal document that allows someone else to act on your behalf to handle your financial and property matters. Putting a Power of Attorney in place proactively can save you headaches, hassle and money in the future. A financial POA helps you put a plan in place for your finances should you become incapacitated due to dementia, traumatic brain injury, or other impairment that could affect your mental function. Financial POA’s can be “durable” (made in advance as part of your larger estate planning efforts) or temporary. For example, a servicemember being deployed can create a POA to pay their bills, manage their property or handle other financial business in their absence. If you don’t create a POA in advance, a friend of family member might have to go to court to have a guardian appointed if you become incapacitated and are no longer able to make decisions for yourself. That can be very costly and public.


Health Care Directive:

A Health Care Directive can work hand-in-hand with a POA. This document will let you determine who you would like to make medical decisions on your behalf when you are unable to do so. It designates someone to work with your healthcare team when you cannot. Choosing someone to act as your health care agent is important. Even if you have other legal documents in place regarding your care, not all situations can be anticipated, and some situations may still require someone to make a judgment about your care wishes. It is important to choose someone who can be trusted to be your advocate if there are disagreements about your care.


Jointly Held Assets:

Jointly held assets are just what they sound like-assets held in the names of two or more people. Assets held under this agreement have a right of survivorship, which means the assets pass automatically to the survivor upon the death of the first person. These assets can avoid probate in some situations-when couples (married or not) acquire real estate, vehicles, bank accounts, securities, or other valuable property together for example. It’s important to mention that there are risks associated with this arrangement. If the person you are holding the assets with has outstanding debts, their creditors could seize an interest in your home or bank account. Holding a jointly held assets can complicate a divorce or other relationship problems. If you have a jointly held bank account, your co-owner could withdraw all the money without your consent. In all estate planning matters, it’s important to put people you trust in charge of your finance, business, and property matters.


Last Will & Testament:

One of the most common and well known documents available to you in Estate Planning is your last will and & testament.

A last will & testament will guarantee the following:

  • You get to designate who you give your estate to
  • Your choice of personal representative or executor
  • An approved guardian of your minor children

A last will & testament will NOT help you avoid probate.


Living Trusts:

A living trust is a legal document you create during your lifetime to protect your assets and direct your distributions after your death. An appointed trustee works in tandem with you (the grantor) to distribute funds from the trust or control beneficiary assets during your lifetime and after. Unlike a will, a living trust takes effect while you (the grantor) are still living. The trust does not have to go through probate for assets to reach the intended beneficiaries.

There are two primary types of living trusts:


The most common type of living trust, it is a trust whereby the person who creates it maintains control over the assets placed within the trust. You can change and amend trust rules at any time. You are also free to change beneficiaries, change the trustee, remove assets, or terminate the trust. Revocable trusts often become irrevocable upon the grantor’s death.


With this trust, the trust itself owns the assets and the grantor can’t designate themselves as the trustee-giving up certain rights of control of the trust. The trustee effectively becomes the legal owner. The name speaks for itself, once an irrevocable living trust is created, the named beneficiaries are set and the grantor can do little to amend that agreement. Changes may need to be approved by the courts. In addition, you can never take back the assets assigned to an irrevocable living trust.

The benefits of a living trust are:

  • Distributes your assets similar to a will
  • Can help eliminate or reduce estate taxes
  • Can avoid probate
  • Can be helpful in certain family circumstances


Most people don’t create an estate plan because they feel like they don’t need one, or it’s too expensive. However, failing to plan now can create major headaches and expenses for your loved ones in the future. Let the attorneys at Wagner, Falconer and Judd assist you as you begin your estate planning journey! Give us a call today to learn more about getting started.