Some estate planning documents are effective as soon as you sign them; others not until you’re incapacitated or die. You and your trusted helpers (i.e. executor, power of attorney agents, guardians for minor children, and trustees) need to understand when your estate planning documents are effective. After all, your trusted helpers only have the legal authority to act on your behalf when the documents are in effect.
- Your Will
Your will is only effective if you’re dead; it has no authority and doesn’t get filed anywhere until then. Your executor files your will with the probate court and is then granted authority to act. It is then that the guardians for your minor children have the authority to make legal, medical, general welfare, and lifestyle decisions for your children.
- Your Revocable Living Trust
Your revocable living trust is effective as soon as you sign it; however, your successor trustees don’t have authority to act on your behalf until the trust document says that they do. For example, trusts typically have provisions for disability (i.e. incapacity.) When that definition is met, your disability trustees have the authority to act on your behalf and manage trust assets.
The trust is not filed with the court and there is no need for the court to grant authority to the successor trustees (unless your trust provides for such.) Death (i.e. settlement) trustees have the authority to act upon your death.
You may name a spouse or an adult child as an initial trustee, along with, or instead of, yourself. Any person named as an initial trustee has authority to act as soon as the trust is signed.
- Your Health Care Proxy
A health care proxy is effective if you cannot give informed consent to accept or refuse medical treatment.
- Your Power of Attorney
A power of attorney is sometimes effective immediately; other times, it’s effective only when you are incapacitated.
- Your Living Will
Your living will is effective if your doctors examine you and determine that you are in an irreversible coma or persistent vegetative state.
If you need additional assistance understanding when your estate planning documents are effective or think your documents are different than described above, consult with a qualified estate planning attorney.