Recent Answers to Estate Planning Law Questions

Randy M.

Answered Sep 30, 2025

When a policy owner takes out a loan against a life insurance policy’s cash value, that loan is secured entirely by the policy itself. It’s not a personal liability of the policy owner, and it doesn’t become a debt of the estate. The insurer tracks the outstanding balance and deducts it from the policy’s value. In your situation, your mother was the owner of a policy insuring your sister’s life. She borrowed against its cash value years ago. Because she wasn’t legally required to repay the loan during her lifetime, the obligation doesn’t shift to her estate. As executor, you don’t treat that loan as a claim against estate assets. The only impact is on the policy itself: the loan plus interest reduces the cash value if surrendered, or the death benefit if your sister eventually dies while the policy is still in force. What Happens After the Owner Dies Since your mother has passed and the insured (your sister) is still alive, the policy itself becomes part of the estate unless a contingent owner was named. That means you may have temporary control as executor. At this point you have several options: 1. Maintain the policy by continuing premiums if required. The loan remains in place and will keep accruing interest, which reduces the policy’s value. 2. Transfer ownership to your sister or another beneficiary under the will or intestacy laws. The new owner takes the policy subject to the outstanding loan. 3. Surrender the policy for its remaining net cash value, which will already reflect a reduction for the loan balance. 4. Allow the policy to lapse by discontinuing premium payments, though that wastes any remaining value. The right choice depends on the estate’s circumstances, your sister’s wishes, and whether preserving coverage has practical value. Executor’s Responsibilities Your duty as executor is to collect estate assets, pay valid debts and expenses, and distribute the remainder under the will or state law. Since policy loans are not debts of the estate, you don’t repay them out of general funds. The insurance company enforces repayment internally by adjusting the policy value. The only estate-level question is whether to hold, transfer, or surrender the policy itself. Review the Policy Contract You should review the actual policy contract to confirm ownership and rights after your mother’s death, as terms can vary. If the estate inherited the policy, the insurer will require documentation before you can act. For guidance on transferring ownership and managing the policy, it’s best to consult an estate attorney in your jurisdiction. Contracts Counsel can connect you with experienced estate attorneys who can assist with this process.

Randy M.

Answered Sep 29, 2025

A power of attorney (POA) is only effective while the person who created it (the “principal”) is alive. Once the principal dies, the POA automatically ends. That means you cannot use your husband’s POA now that he has passed, and any authority you may have had under a POA he gave you is no longer valid. The law is uniform on this point across all U.S. states. After death, the legal authority to handle someone’s affairs shifts to the executor named in their will or, if no will exists, to an administrator appointed by the probate court. As the surviving spouse, you typically have priority to be appointed as administrator if your husband left no will. This is the process by which debts, taxes, and distributions of property are handled. Why You Should Still Consider a Power of Attorney Although you don’t need a POA for your husband, you may want to create one for yourself while you’re mentally capable. This is an important part of estate planning and ensures that if you ever become incapacitated, someone you trust can step in seamlessly. There are two key types of POA most people establish: 1. Durable Financial Power of Attorney: Authorizes your agent (sometimes called attorney-in-fact) to manage financial matters—paying bills, handling banking, managing property—if you can’t. It’s “durable” because it remains valid even if you lose capacity. 2. Healthcare Power of Attorney (or Healthcare Proxy): Authorizes your agent to make medical decisions if you’re unable to speak for yourself. Most people also prepare a living will/advance directive alongside a healthcare POA. This document sets out your specific wishes for end-of-life treatment so your agent isn’t left guessing. Choosing the Right Agent The choice of agent is vital. This person will hold significant authority, and you should only appoint someone you trust completely. Common choices include an adult child, a close family member, or a trusted friend. In more complex cases, some people name a professional fiduciary or financial institution. When deciding, weigh these factors: • Trustworthiness and integrity: They’ll be in a position to make decisions that directly affect your finances or health. • Financial responsibility: Especially relevant if they’ll be handling your money. • Willingness and availability: Make sure the person accepts the responsibility in advance. • Location: It’s not a strict requirement, but someone nearby can often act more quickly when urgent matters arise. It’s also wise to name a successor agent in case your first choice is unable or unwilling to serve. Immediate Steps After Losing a Spouse Separate from your own planning, you’ll likely need to address your husband’s estate. If he had a will, the executor named there should take the lead. If there’s no will, you can apply to probate court to be appointed administrator. Alongside that, you may need to update your own estate planning documents, review and change beneficiary designations, and notify Social Security, banks, and insurance companies. An estate attorney can guide you through both the probate process and setting up your own documents. The attorneys here on Contracts Counsel would be happy to assist you.

Randy M.

Answered Aug 30, 2025

You don’t have to name a family member as the executor of your will. In many cases, choosing someone outside the family is not only allowed but actually a smart move. With one notable exception, no U.S. state requires your executor to be a family member. What matters most is that the person is trustworthy, capable, and legally qualified to handle the role. Why someone outside the family might be the better choice For some people, appointing a friend, a professional advisor, or even a neutral third party just makes more sense. They’re often less emotionally entangled in family matters and better equipped to make level-headed decisions during what’s usually a tense and emotional time. Also, if they have relevant experience, like being an attorney or financial planner, they may already understand what the job entails. What the law actually requires Legally speaking, most states just require that your executor be at least 18 years old and mentally competent. From there, it’s mostly about whether the person is willing and whether the state has any disqualifying rules, such as felony convictions or certain types of misconduct. Some states are stricter than others on that point. Watch out for location-based restrictions Every state allows non-family executors, but a few have extra rules for people who live out of state. For example, your chosen executor might have to post a bond, work with a local co-executor, or name someone in-state to receive official documents. Florida is the sole exception. It generally limits executors (technically called “personal representatives” there) to relatives or their spouses. But that’s the exception, not the rule. A few things to think through Choosing an executor isn’t just about who you trust. It’s also about who can realistically handle the responsibility. They’ll have access to all your financial info, need to manage assets, pay off debts and taxes, and make sure everything is distributed properly. That’s a lot to take on. Also, consider how far they live. While distance isn’t always a deal-breaker, having someone nearby can make things easier, especially when there’s paperwork to sign or property to manage. And then there’s the family piece. If you pick someone outside the family, be prepared for possible tension. Even if your choice makes perfect sense, relatives may feel hurt or suspicious. If you’re concerned about that, it’s worth having a conversation in advance to explain your reasoning. What about compensation and other options? Executors are entitled to compensation for their time and effort, usually a percentage of the estate’s value (often 2 to 5 percent), depending on the state. Just keep in mind that executor fees are considered taxable income, while inheritances typically are not. If you’re trying to strike a balance, you can name co-executors, such as a trusted friend and a family member. This can help keep everyone involved while making sure the job gets done right. Just be aware it can slow things down, since both have to agree on major decisions. And if your estate is especially large or complicated, you might want to bring in a professional fiduciary, such as a trust company, bank, or estate attorney. They charge more, but you’re paying for deep experience and institutional reliability. Before you lock in your decision, here’s what to do: 1. Double-check your state’s requirements, especially if the person lives out of state. 2. Talk to your chosen executor to confirm they’re willing to take on the role. 3. Name an alternate in case your first pick can’t serve later. 4. Spell out compensation clearly in your will, or reference state guidelines. And finally, it’s always smart to run your estate plan by a local attorney or an attorney here on Contracts Counsel. State laws can vary more than people realize, and a quick legal review now can prevent a lot of headaches later. At the end of the day, choosing the right executor is about trust, competence, and clarity. Whether they’re family or not, you want someone who can step in and carry out your wishes with care and professionalism.

Jazmin C.

Answered Aug 1, 2025

I would say yes, especially if it is in the power of attorney that they can be compensated. If you want to reduce that down to a payment agreement, you can; it may not be necessary, but you can definitely do that. I would start with the durable power of attorney first!

Megan W.

Answered Jun 20, 2025

Yes, you can appoint anyone you want as your executor of the Will.

Joseph M.

Answered Apr 8, 2025

There are numerous forms of Trust that are available depending on the specific assets and your unique goals. Generally speaking, the two main types of trusts are Revocable and Irrevocable. WIth a Revocable Trust, just like it sounds, as trustee you can remove the assets at some point if you so chose, but if you are to pass away or become incapacitated at some point, it reverts to being Irrevocable. An Irrevocable Trust is one in which the grantor transfers all ownership interests to the Trust itself and this act is irreversible. As I am sure you guessed, there are a myriad of ways that your goals can be achieved and I would be happy to provide a free consultation to discuss your situation and possible solutions.