The Basics of Probate by Sean Daryani & Team

What is Probate?

How does Probate Start?

The Probate Flow Chart

Timeline of the Probate Process

Special Types of Probate

Probate Glossary

What is Probate?

By definition probate is the legal process for the transfer of assets-houses, cars, stocks, bonds, boats, etc.-from the deceased person’s name to his or her estate so they can be sold or distributed to the heirs.

·         Probate takes place in the county of the decedent’s residence.

·         Probate oversees the settlement of an estate.

·         Probate validates terms of a will, if there is one.

·         Probate pays legitimate creditors.

·         Probate distributes remaining assets.

How Does Probate Start?

·         Someone dies

·         Is there a will?

   o   Will = Testate = Executor/Executrix

   o   No Will = Intestate = Administrator/Administratrix

   o   Assets escheat to the state if not claimed within specific time period

   o   Time period varies from state to state

·         If there is a will

   o   Directs disposition of the estate and settlement of legal affairs

   o   Designates executor

   o   Designates heirs

   o   Executor initiates probate

·         If there is no will

   o   Potential administrator initiates probate

   o   Court appoints an administrator

·         Administrator initiates probate

   o   Court oversees the liquidation of the estate

·         Attorney

   o   Works for the estate

   o   Sometimes required by state law

   o   Gets Paid

The Probate FlowChart

·         Probate Flow of Events

Click here to see Executor’s Duties During the Probate Process

Timeline of the Probate Process

Click here to see “Timeline of the Probate Process

Special types of probate



A guardian and a conservator are two types of persons invested with the power to manage the property of a person under a disability of age, mind or body. We need to verify compliance with state statutory requirements in order to insure conveyances by guardians, conservators, and other fiduciaries.


We need to verify that the person dealing with real estate has the legal capacity to convey or mortgage the property. Conveyances by a minor are generally held to be voidable. Conveyances by someone declared mentally incompetent are void. A guardian, conservator, or some other fiduciary must be appointed and authorized to transfer or mortgage real estate and you must confirm compliance with statutory procedure.



·         State law governs the authority of a fiduciary to deal with real property. The Uniform Guardianship and Protective Proceedings Act (UGPPA) typifies the requirements of state law. Section 102 of UGPPA defines both "Guardian" and "Conservator." Conservator means "a person who is appointed by a court to manage the estate of a protected person and includes a limited conservator." Guardian means "a person who has qualified as a guardian of a minor or incapacitated person pursuant to appointment by a parent or spouse, or by the court, and includes a limited, emergency, or temporary substitute guardian."

·         By definition, a Conservator manages the property of the incapacitated person. State law will determine the level of mental capacity of the "conservatee", called a "protected person" under the UGPPA. Where a Conservator is to execute the proposed deed or mortgage, you must require production of a copy of the letters of Conservatorship, and review the letters for the extent of the Conservator's power to deal with the real estate. Depending on the terms of the original appointment, it may be necessary for the Conservator to go back to court to obtain additional authority. A sample requirement is production of a certified copy of court order appointing ------as Conservator of the estate of------, and authorizing the execution of the deed/mortgage.

·         Whether a guardian has power to convey or mortgage real estate also depends on state law, and the authority granted in the letters of guardianship. There are different types of guardianships, and not all have power over real estate. A guardian ad litem is a guardian appointed to prosecute or defend lawsuit for the minor. A general guardian is a guardian who has the general care and control of both the person and property of the minor. Where a guardian is to execute the proposed deed or mortgage, you must require production of the court order appointing the guardian who has power to deal with real estate. In states that have adopted the Uniform Probate Act (UPA), a guardian is a fiduciary, and as such, enjoys all the powers of a fiduciary including the power to deal with real estate. In those states it may not be necessary to obtain a court order authorizing the transaction because the guardian has the power to deal with real estate. A sample requirement is production of a certified copy of a court order appointing ------as guardian of the estate of------, and authorizing the execution of the deed/mortgage.




An incompetent is a person who is mentally or physically unable to handle his or her estate without help.


The law of incompetents or insane persons varies from state to state. Usually, a court will appoint someone to handle the financial affairs of such a person. A person can also select an attorney-in-fact to act on his or her behalf under a power of attorney. The guidelines set forth below are general, and you should consult with your state or regional counsel as to the insurability of instruments from incompetents or insane persons in your state.



A person's legal capacity to transfer real property may be restricted if he or she is considered to be under a legal disability. Generally, the people under a legal disability include:


Persons under the age of majority, unless legally emancipated,


Incarcerated people (in some states),


People who have been diagnosed as mentally ill or retarded,


People who have been adjudged legally incompetent or insane, or


People who have been otherwise adjudged to be legally incapacitated because of a mental or physical condition.


·         Deeds, deeds of trust, mortgages and other conveying instruments executed by people under a legal disability are either void or voidable because such persons cannot understand or comprehend the nature or consequences of the particular transaction. Title to property acquired via an instrument executed by people under such a legal disability is unmarketable. Generally, deeds from persons under a legal disability must be signed by an attorney-in-fact under a durable power of attorney, or a fiduciary, committee, legal representative or guardian appointed by the court and authorized by the court to act on behalf of the person under a disability.


·         If the person executing the instrument is acting under a power of attorney, review the topic on Powers of Attorney. If the conveyance of real property will be executed by a fiduciary, committee, legal representative or guardian, use requirements insn-r01 and insn-r02.

2.    AGENCY


Agency is a relationship in which one person acts for or represents another with the approval

of the other person.


We are concerned with the authority of an agent to act for another, whether for an individual or on behalf of an entity. A prospective insured may be concerned with the effect of the agency relationship on policy coverage. You must determine whether the person executing the deed, mortgage, or other instrument has the actual authority to act for the principal or for the entity. The source of the agent's authority may be an express written agreement, such as a Power of Attorney, or resolution of a board of directors, or it may arise by implication, as in a partnership, joint venture, trust, or corporation.

As the result of the agency relationship that exists in a partnership, knowledge of one partner may be imputed to the insured partnership as well as to individual insured partners. Imputation of knowledge also affects insurance applicants seeking insurance for their investments in corporations, joint ventures, and mortgage participation interests. The concern is that the knowledge of other co-investors will trigger an exclusion from coverage, or otherwise breach a policy condition. One exclusion withdraws policy coverage for those matters not of record, "known" to the insured, and not disclosed to the company. The policy also requires the insured to promptly notify the company in case knowledge comes to the insured of any adverse claim. To avoid losing coverage because of these policy provisions, the insured will request the company to waive its rights to contest the insured' s "knowledge "imputed from other individuals.




Insurance Requirements


A power of attorney is a written agreement by which one person, the principal, appoints another, the attorney-in-fact, to act on behalf of the principal. A power of attorney may be presented in any type of real estate transaction, but is utilized more often in residential transactions. The power of attorney may be discovered in the chain of title, or be presented at settlement. In either situation the title examiner will need to verify that:



The principal actually executed the power of attorney.



The power of attorney authorizes the agent to act in the particular real estate transaction.



The power of attorney complies with state law requirements.



The power of attorney is in recordable form.



The principal has not revoked the power of attorney.



The principal is not disabled or deceased.


The use of a power of attorney provides an opportunity for fraud, and many mortgage lenders will not readily consent to the execution of the mortgage pursuant to a power of attorney. Where the power of attorney is presented at settlement, or is recorded shortly beforehand, you should strictly scrutinize the validity of the power. This caveat applies to all settlement documents executed and notarized outside settlement. To avoid the stress of having to evaluate the legitimacy of a power of attorney at settlement, the title commitment could require that any power of attorney must be presented for approval prior to settlement.


In addition to verifying the reason for using the power of attorney, you should obtain an affidavit from the grantee of the power affirming that:



The principal was of sound mind at the time the power was executed.



The power had not been revoked.



The agent has not received any knowledge or notice regarding the mental capacity or death of the principal.


Durable Powers of Attorney


Most states have enacted legislation that authorizes the use of "durable powers of attorney." These permit the agent to act on behalf of the principal notwithstanding the later disability or mental incapacity of the principal. Alternatively, the "disability" of the principal may trigger the power. Insurance of an instrument executed pursuant to this latter type of durable power requires satisfactory proof that the principal is disabled or incompetent.


Execution by Attorney-in-fact


The instrument executed by the agent should clearly indicate that the instrument is that of the principal acting by and through the agent. The introduction, the body of the instrument, the signature, and the acknowledgement should all reflect that the deed or mortgage is that of "Peter Principal, by Anthony Adverse, his attorney-in-fact."


Every entity acts through its representatives. Where we insure a corporate transaction we obtain a corporate resolution that addresses our concerns about the authority of the signatory to execute documents on behalf of the corporation. We have more difficulty in obtaining verification of partnership authority because of the agency nature of the partnership relationship.

As a general rule, each partner of a partnership is an agent for the partnership and for each partner. The Revised Uniform Partnership Act provides that "every partner is an agent of the partnership for the purpose of its business, and the act of every partner, including the execution in the partnership name of any instrument for apparently carrying on in the usual way the business of the partnership of which he is a member, binds the partnership."

Every partner can thus bind the partnership, "unless the partner so acting has in fact no authority to act for the partnership in the particular matter, and the person with whom he is dealing has knowledge of the fact that he has no authority." The Act also provides that " an act of a partner which is not apparently for the carrying on of the business of the partnership in the usual way does not bind the partnership unless authorized by the other partners."

You must decide whether a partner, or the general partner in a limited partnership, has the authority to bind the partnership to a transaction not expressly authorized in the partnership agreement. Of course we are often told that it is impossible to obtain written consents from every partner. Counsel for the signing partner may suggest that consent from the other general or limited partners are unnecessary. We are advised that the contemplated action is insurable because it is in furtherance of the purpose of the partnership business, and the signatory is empowered to act pursuant to the general terms of the partnership agreement, or the default provisions of the statute.

Dissatisfied partners have challenged partnership transactions involving indemnity mortgages, cross-collateralized financing, participation mortgages, partnership rollups, and deeds in lieu of foreclosure. These types of transactions are viewed as outside the usual way of carrying on partnership business. They also may cause negative tax consequences for partners, thus engendering litigation. When insuring these transactions you should require written consents from all partners unless the partnership agreement provides express authorization.

If the insured partnership action is later challenged as unauthorized, the insured will assert no knowledge of the lack of authorization, and tender the defense to the insurer. If the insured has actual knowledge of the lack of authorization, and fails to disclose that information, the insurer will become embroiled in defense litigation as it attempts to convince a judge that the insured failed to disclose a material fact that voids liability. Where dissenting partners claim that the transaction was outside the scope of partnership business, the duty of the insurer to defend strains insurer/insured relationships, since the insured looks for complete defense and indemnity coverage, while the insurer wonders if the insured knew that the transaction was questionable all along. Inability to obtain partner consents to a transaction at the time of settlement is a harbinger of future litigation.


Partnership law states that knowledge by one partner with respect to any matter relating to a transaction within the ordinary scope of the partnership business is knowledge to all partners. The Revised Uniform Partnership Act provides that "notice to any partner of any matter relating to partnership affairs, and the knowledge of the partner acting in the particular matter, acquired while a partner or then present to his mind, and the knowledge of any other partner who reasonably could and should have communicated it to the acting partner, operate as notice to or knowledge of the partnership, except in the case of a fraud on the partnership committed by or with the consent of that partner."

This imputation of knowledge concerns investors acquiring partnership interests because of the potential trigger of Exclusion from Coverage No. 3(c). The transaction may involve the transfer of a general partner's interest, or the acquisition of an interest by an incoming limited partner. For example, an investor may be acquiring a limited partnership interest, and doesn't want to lose coverage because of the knowledge of the general partner. Exclusion 3(c) removes from policy coverage defects, liens, encumbrances, adverse claims or other matters "not known to the Company, not recorded in the public records at Date of Policy, but known to the insured claimant and not disclosed in writing to the Company by the insured claimant prior to the date the insured claimant became an insured under this policy." The knowledge of other partners, whether they are remaining partners or withdrawing partners, will bind the new partners.

Knowledge of other partners also implicates another section of the policy. The policy requires that the insured promptly notify the company of any claim or adverse matter that may affect title. Policy coverage will cease and terminate if the company is prejudiced by late notice. To avoid unknown risks and potential loss of policy coverage, the incoming partners will require a Non-Imputation Endorsement, by which the company surrenders its right to disclaim liability. Due diligence may require estoppel letters, affidavits and perhaps an indemnification from the selling partners.

The knowledge of co-owners also affects corporate transactions. For, examples, in a stock transfer transaction the incoming shareholders are bound by the knowledge of the corporation's representatives, such as directors, officers and other shareholders. Title to the real estate remains in the corporation but the knowledge of the corporation, which is the insured under the policy, is the knowledge of its representatives. Incoming shareholders will request a Non Imputation Endorsement for the same reasons as partnership investors.

Mortgagees are also concerned with the implication of agency relationship. A mortgagee that purchases a participation in an existing mortgage may be concerned with the potential effect of knowledge of the originating lender on policy coverage. Even though the documentation may expressly deny an agency relationship, the investing lender wants protection against possible assertions by a defaulting borrower of an agency relationship between the loan originator and the participant. A Non Imputation Endorsement can ease the investor's concerns.

3.            POWER OF ATTORNEY


A power of attorney is a written instrument executed by one person, usually called the principal, which authorizes another, usually called the attorney-in-fact, to act on behalf of the principal. It is also called a letter of attorney in many states. In Louisiana, it may be called a mandate, procuration or letter of attorney.

A special power of attorney authorizes the attorney-in-fact to act only in a limited fashion. For example, a special power of attorney may authorize the attorney-in-fact to execute a deed to transfer title to a specific property.

A general power of attorney authorizes the attorney-in-fact to act under a listing of extensive powers. In most cases, the listing of powers is copied or incorporated by reference from a list in a statute that governs powers of attorney. For example, a general power of attorney may authorize an attorney-in-fact to sell any land owned by the principal.

The common law limits the validity of acts under a power of attorney to acts completed while the principal is alive, not disabled or incapacitated. Most states have enacted the Uniform Durable Power of Attorney Act or some other statute creating a durable power of attorney, or limited durable power of attorney that validates acts of the attorney-in-fact even though the principal may be disabled or incapacitated.


In the absence of a statute, the common law recognizes the validity of acts by an attorney-in-fact under limited circumstances. Most states have enacted statutes to expand the power recognized by the common law. These statutes often define who may act as an attorney-in-fact, requires certain formalities in the form of a power of attorney, and specifies the duties, standards of care and powers of the attorney-in-fact.

Durable powers of attorney have becomes become a component of many people's estate plans. They can designate a person to handle their affairs should they become temporarily or permanently disabled, by accident or illness. Statutes often create a form of durable power of attorney that may be used in that state and may recognize the validity of acts under a durable power of attorney created under the laws of another state.

You should view transactions involving a power of attorney carefully. A forged power of attorney gives the "attorney-in-fact" the apparent power to buy, sell or mortgage property. We have developed procedures to minimize the risk that we are relying on a forged power of attorney. Execution of some documents, especially affidavits, is inappropriate under a power of attorney.



Under the common law, a power of attorney created a formal appointment of the attorney-in-fact as the agent of the principal. The agent in fact could act on behalf of the principal within the scope of the powers granted in the instrument if the principal was alive and mentally capable and had not revoked the power of attorney.

Capacity of the principal


Under common law, the principal must be competent both at the time the power of attorney is executed and at the time the attorney-in-fact acts under the powers granted in the instrument. Therefore, most states have enacted statutes authorizing durable powers of attorney to overcome the common law requirement that the principal be competent at the time the power is exercised. Powers of attorney do not survive the death of the principal.

Form of Power of Attorney


The common law did not specify a particular form for powers of attorney, but it did require the power to be in writing. The powers that concern title insurers grant the power to buy or sell real estate and to execute deeds, mortgages and other instruments affecting the title to the land. Under common law "equal dignity" principle, the power must be executed with at least the same formalities needed to execute and record the instrument (deed, mortgage, etc.) that the attorney-in-fact will execute. For example, if the deed requires a "seal" or notary acknowledgement so does the power of attorney; power of attorney. The power of attorney must also be recorded, in many states. Many states have established a statutory form of power of attorney, and you should check to see if the power offered to you meets the statutory requirements.



A power of attorney terminates under common law rules if



Its term expires;



Its purpose ends;



The principal dies;



The attorney-in-fact dies;



It is revoked by the principal;



It is renounced by the attorney-in-factor agent; or


The principal loses his or her capacity to contract for a non-durable power of attorney.


Most states have enacted laws that govern some aspects of the powers of attorney. States can prescribe a form for powers of attorney (whether suggested or mandatory), define the effect of a power of attorney or authorize powers beyond the common law model.

If a principal wants to revoke a recorded power of attorney, many states require the instrument of revocation to be acknowledged and recorded in the office where the power of attorney was recorded.


At common law, an attorney-in-fact could not act under a power of attorney unless the principal was competent. Powers of attorney were suitable if the principal was absent, but not if the principal was incapacitated. It became evident that many people wanted to have the capacity to act on behalf of the principal, even if the principal was incompetent. The most common situation was a power given by an elderly parent to an adult child who could act even if the parent lost the capacity to act.

Statutes creating "durable" powers of attorney met this need. The Uniform Durable Power of Attorney Act has been enacted by twenty-nine states, but some form of authorization for durable powers can be found in almost every state.




Section 1 of the Uniform Durable Power of Attorney Act defines a durable power of attorney as ‘a power of attorney by which a principal designates another his attorney in fact in writing and the writing contains the words "This power of attorney shall not be affected by subsequent disability or incapacity of the principal, or lapse of time," or "This power of attorney shall become effective upon the disability or incapacity of the principal" or similar words showing the intent of the principal that the authority conferred shall be exercisable notwithstanding the principal's subsequent disability or incapacity, and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.

Section 2 provides that any acts done by an attorney-in-fact under a durable power of attorney during any period of disability or incapacity of the principal shall have the same effect and bind the principal and his or her successors in interest as if the principal were competent and not disabled. Unless the instrument states a time of termination, the power can be exercised even after a long lapse of time since it was executed so long as the principal is still alive.



Section 4 has two provisions. The first provides that: "the death of the principal who has executed a power of attorney, durable or otherwise, does not revoke or terminate the agency as to the attorney in fact or other person, who, without actual knowledge of the death of the principal, acts in good faith under the power."

The second provides that: "the disability or incapacity of a principal who has previously executed a power of attorney that is not durable does not revoke or terminate the agency as to the attorney in fact or other person, who without actual knowledge of the disability or incapacity of the principal, acts in good faith under the power."

Any action so taken, unless otherwise invalid or unenforceable, binds the principal and his successors in interest.

Section 3 provides that if, following the execution of a durable power of attorney, a court appoints a conservator, guardian of the estate or other fiduciary for the principal, the fiduciary has the same power to revoke or amend the power of attorney that the principal would have if not disabled or incapacitated.

Affidavit as proof


Section 5 provides that an affidavit executed at the time of exercise by the attorney in fact under a power of attorney, durable or otherwise, stating that he or she had no actual knowledge of the termination of the power by revocation or of the principal's death, disability or incapacity is conclusive proof of that the power was not revoked or terminated at that time. The affidavit is recordable if it is executed and acknowledged.


A military power of attorney is given effect; even if it does not comply with state law under the provisions of 10 u.s.c. §1044b ( Under §1044b(a)(2) a military power of attorney " . . . shall be given the same legal effect as a power of attorney prepared and executed in accordance with the laws of the State concerned."

Section 1044b does not give a form for a military power of attorney, or even define recognizable elements of one. It says in §1044b(b) " . . . a military power of attorney is any general or special power of attorney that is notarized in accordance with section 1044a of this title or other applicable State or Federal law." The definition is so broad, that the section might as well have said that a ‘military power of attorney' is a power of attorney executed by a member of the armed forces of the United States as attorney-in-fact. Many military organizations have preprinted forms of powers of attorney to hand out to service members, but use of such a form is not required by the statute.

The authentication requirements of 10 U.S.C. 1044a ( are more relaxed than you might expect in your state. However, if the authentication of a power of attorney complies with §1044a, it qualifies under §1044b.


Real estate conveyancing is a formal and complex process because it requires careful authentication of the parties' identity and agreement. If the parties are present and execute the documents in person, the notary or other officer taking the acknowledgments on the instruments can check their identification as part of the process of authentication.

Where documents are executed under a power of attorney, the officer authenticating the documents must rely on the acknowledgment in the power of attorney instead of requiring satisfactory proof that the individual in his or her presence is the right person. It is easier to forge one power of attorney making a crook the attorney-in-fact than to forge all of the documents needed to borrow on a mortgage or sell a property. Consequently, experienced title professionals view powers of attorney as a red flag for fraud, unless they have been given satisfactory reasons why the power of attorney is necessary and are satisfied that the transaction is legitimate.


If you encounter a title in a search where a deed or mortgage has been executed by an attorney-in-fact, you should:



Look for a recorded copy of the power of attorney authorizing the attorney in fact to act



Examine the power of attorney to assure yourself that it



Authorizes the attorney-in-fact to execute the instruments in the transaction



Has not terminated by its terms



Was properly executed and acknowledged by the Principal



Meets all statutory requirements



Look for an affidavit by the attorney-in-fact asserting that he or she had no notice that the power of attorney had been revoked, or that the principal had died, or if the power of attorney is not a durable power of attorney, that the principal is not disabled or incapacitated.


If the documents are executed under a power of attorney, you should require:



An original power of attorney either already recorded or in recordable form, executed by the party holding legal title to the property;



An affidavit from the attorney-in-fact stating that the attorney-in-fact does not have actual knowledge of the revocation or the termination of the power of attorney as a result of the death or incapacity of the principal;



A written explanation why the principal is not able to execute the transaction documents;



The approval or permission of the lender if its' borrower is using an attorney-in-fact to execute the loan documents. The lender may not allow the use of a power of attorney, particularly if it is not specific to the transaction.



If an entity, such as a partnership, corporation or limited liability company, gives a power of attorney, you should examine and confirm that the entity has the authority to enter into the transaction. If you are unsure about the entity's authority to enter into the transaction, you should require a legal opinion from the entity's counsel.

4.      You must be satisfied that the use of the power of attorney is reasonable. The attorney in fact has only such powers with respect to the property as given him by the terms of the instrument. A special power of attorney tailored to a specific property and transaction is the most reliable power of attorney. You must examine the power of attorney to confirm that it provides the attorney in fact with the necessary powers to complete the transaction (e.g. to sell, convey, mortgage, encumber, lease, option, contract, etc.).


You should not accept a power of attorney where:



The attorney-in-fact has "exercised" the power of attorney to make a broader grant of powers.



The attorney-in-fact has a conflict of interest (e.g., the attorney-in-fact conveys property to himself).



The principal has attempted to grant fiduciary powers to the attorney-in-fact. A fiduciary cannot delegate his powers to another person (e.g. partner in a partnership, an officer of a corporation, trustee under a trust agreement).



The attorney-in-fact has "exercised" the power to sign affidavits and sworn statements.



The attorney in fact has exercised the power of attorney to execute a will for the principal, and title has passed by the will.



Where you are suspicious that the power of attorney is forged, or has been revoked, or has terminated by its terms or by the death or incapacity of the principal.


Explanation of Trust Roles

When you design your estate plan, you will select several trusted helpers to help you during various times and in various capacities. If you’re like most people, you have questions and concerns about who to name in what role. Below we are providing an explanation of each role and adding a description of who would be the best fit. If you would like further explanation, please contact an estate planning attorney, CPA or corporate fiduciary (bank or trust company) for more detail information and help.

Trustees of Your Revocable Living Trust

While you are alive and well, you serve as trustee of your revocable living trust. If you’re married or have a life partner, you likely want to include that person as a co-trustee.

You also need to appoint successor trustees who would be disability trustees to act on your behalf should be become disabled and settlement trustees to act on your behalf when you die.

Typically, your disability trustees and your settlement trustees are the same people. These trusted helpers are also named as agents under your financial power of attorney.

The ideal successor trustees care about you, have the highest of ethics, are organized and good record keepers, and are a good communicators.

If no one in your family or circle of friends fits the bill, you can name a professional trustee such as an estate planning attorney, CPA, or corporate fiduciary (bank or trust company.)

Financial Power of Attorney Agent

The trusted helpers named in your financial power of attorney are typically those named as successor trustees of your trust because the roles are so intertwined.

The ideal financial power of attorney agents care about you, have the highest of ethics, are organized and good record keepers, and are good communicators.

Medical Power of Attorney Agent

Your health care agent should be someone who cares about you and who can assertively communicate with doctors and other medical personnel.

Your health care agent gives or withholds consent to medical treatment if you are not able to do so yourself. So, common decisions would include hiring and firing of medical personnel such as doctors or personal care attendants and whether you try a new medicine, get transferred to a nursing home, or have an operation.

Guardians for Your Minor Children (Temporary and Permanent)
Guardians for your minor children raise your children if you are not able to do so yourself.
If you are unable to care for your children during your lifetime, guardians are appointed in a temporary guardianship legal document in the form of a power of attorney.

If you have died, permanent guardians are appointed in your will.

The ideal guardians love your children, will treat your children as their own, have extended family who will love and accept your children, share similar values with you, live near you, have lots of energy and good health to parent your children, can raise all of your children so they won’t be separated, and want to raise your children.

Our Jacksonville estate planning lawyers always include discussion of temporary guardians during the estate planning process. This is a trusted helper that is often overlooked by most attorneys.

First Responders

First responders are trusted neighbors and friends who can get to your children within approximately 15 minutes and stay with them until your named guardians arrive to take over.

This avoids your children being taken into protective custody (i.e. foster care.)

Your estate planning lawyers always include discussion of first responders during the estate planning process. This is a trusted helper that is often overlooked by most attorneys. 

8 Important Estate Planning Documents You Need

If you are age 18 or older, you need your own estate plan. Your estate planning attorneys know that you have questions and concerns about the documents you need. In fact, if you’re like most people you may not even know what legal estate planning documents you need. Your estate planning attorneys can provide this list and brief explanation of each estate planning document for your convenience.

1. Revocable Living Trust
The revocable living trust is a comprehensive legal document that organizes your assets while you are alive and well, provides for your disability, and distributes your assets to your beneficiaries after you die.

 It has many benefits such as disability planning and asset protection for your beneficiaries.

In addition, if fully funded (meaning that your assets are transferred into your trust), a revocable living trust avoids probate, saving you time and money and keeping your personal and financial affairs private.

2. Will
Even if you have a trust, you need a will. You appoint an executor to wind down your financial life and guardians to raise your minor children in your will.

In addition, you instruct how your assets are to be distributed at your death. If you have a trust, the only beneficiary of your will is generally your trust.

3. Financial Power of Attorney
A power of attorney for finances is imperative. If you are unable to manage your assets and carry out your day to day financial affairs, your appointed agent will act on your behalf.

4. Medical Power of Attorney
So long as you are able to make your own health care decisions, you will continue to do so. Your agent under the medical power of attorney will act on your behalf if necessary.

5. Living Will
The living will keeps you from being hooked up to machines and having your life artificially extended with heroic measures. The living will is effective if you are in an irreversible coma, persistent vegetative state, or otherwise terminal and at the very end of life.

6. Organ Donation Form
The organ donation form helps you to save the lives of up to 8 people, letting your loved ones and medical personnel know that you wish to be an organ donor.

7. Temporary Guardians for Your Minor Children
If you’re like most people, you think that you’re “done” when you name guardians in your will. However, your will is only effective if you’re deceased.

If you’re alive but unable to care for your children due to serious injury or illness, your children will need someone to care for them. You appoint temporary guardians to act during your lifetime in a separate document, a power of attorney.

8. First Responders
A document authorizing first responders to stay with your children until your named guardians arrive is essential to prevent your children from being taken into protective custody (i.e. foster care) if your guardians aren’t immediately reachable.

If you have any questions about estate planning documents or your individual estate plan please contact your personal estate planning attorney or you can consult with Jacksonville estate planning attorneys, Arnold Law, (904) 264-3627, or email them at: To better serve you.

Probate Glossary

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