Legal Question in Wills and Trusts in Virginia

Power of Attorney

My dad wants to give me power of attorney. I would like to know the best form for this. He wants to make sure, after his death, everything is divided equal. Thank you--name removed--Manning


Asked on 10/04/04, 12:50 pm

2 Answers from Attorneys

Randy Masters The Law Office of Randy Masters

Re: Power of Attorney

Actually, there is no one "set form" for a power of attorney. There are many types of powers of attorney (both medical and financial) and I would be wary (if I were you) about relying on a generic book of legal forms to accomplish what you want to accomplish.

But then you discussed how your dad wanted to make sure, after his death, that everything would be divided equally. Well, a power of attorney ends upon the death of the person who created it. So if your father creates a power of attorney naming you as his "agent" or "attorney in fact" to be able to handle his financial affairs, it's only effective while he is alive. Once he dies, then the power is revoked.

Your father would need to have a Last Will and Testament drafted in order to specify how he wants his estate distributed to his heirs. A power of attorney would only govern his financial matters while he is alive.

See an attorney who specializes in estate planning if you have more questions.

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Answered on 10/04/04, 1:39 pm
James McElligott III James J. McElligott III, P.C.

Re: Power of Attorney

My dad wants to give me power of attorney. I would like to know the best form for this. He wants to make sure, after his death, everything is divided equal. Thank you--name removed--Manning

Assuming that your father's goal is to make sure that his assets are divided equally among his children upon his death, a power of attorney will not be effective. A power of attorney, even a durable power of attorney, would terminate upon your father's death. Therefore, upon your father's death the power holder (i.e., attorney-in-fact) would have no power or authority to act on behalf of your father.

Although there are a number of ways to achieve your father's desired result, two of the most common would be the use of either a will or trust. Each of these choice has benefits and draw backs to them.

If your father chose to use a will, it would, generally speaking, be cheaper and easier to set up, but would subject his estate to the probate process. A trust on the other hand, generally costs more upfront, but avoids the probate process. The total costs, in the end, generally come pretty close to evening out.

As I stated earlier, there are numerous ways to achieve your father's desired reult, but these are the two most common. I hope you find this information helpful.

Sincerely,

James J. McElligott III

James J. McElligott III, P.C.

505 S. Independence Blvd., Suite 102

Virginia Beach, Virginia 23452

Telephone: (757) 288-7536

Fax: (757) 497-5560

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Answered on 10/04/04, 1:41 pm


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