Featured in Image: Elizabeth Estes, Partner & Managing Estate Planning and Probate Attorney; David Michael Cantor, Founding Partner; and Nicholas Boca, Partner & Managing Family Law Attorney

A will is a legal document that outlines how your property will be distributed upon your death and is the only instrument that allows you to formally nominate a guardian for your children. While having a will cannot prevent your estate from going through probate, it can greatly reduce the potential costs of litigation if disputes arise over your final wishes.

Several documents may be included as part of your overall “will” package:

Living Will (LW)

A living will is part of your Advance Healthcare Directives and sets forth your end of life wishes and medical decisions if you are dying and unable to speak for yourself. It provides guidance on palliative care and whether life support should be continued, in accordance with your wishes. Without it, doctors may prolong life even if it causes unnecessary pain and goes against your preferences, potentially depleting your estate on costly medical care. A living will also spares your loved ones from the emotional and financial burden of petitioning the court to make end-of-life decisions.

Last Will and Testament (LWT)

This is the document most people envision when they think of a will. It allows you to name a Personal Representative (executor) to manage your affairs, designate guardians and conservators for minor children, and specify who will inherit your property. Without a LWT, the court will appoint someone—possibly not of your choosing—to handle your estate and raise your children. Additionally, probate without a will often incurs higher legal fees, bond costs, and administrative expenses.

Funeral and Burial Instructions (FBI)

By including clear instructions regarding your funeral, burial, or cremation, you can prevent disputes among family members over your final arrangements. An FBI ensures your wishes are honored and removes uncertainty or conflicting claims about what you “would have wanted.”

Personal Property Disposition List (PPDL)

This document specifies who will receive particular items of personal property, such as jewelry, art, collectibles, sports memorabilia, or antiques. It can be as detailed as you wish, down to individual items. To further avoid disputes, it is wise to maintain a video inventory of your possessions so there is clear evidence of what was in your home at the time of your death.

A well-prepared will package—including these documents—provides clarity, minimizes conflict, and ensures your wishes are carried out with as little legal and emotional strain on your family as possible.

Durable Power of Attorney and Healthcare Directives

A Durable Power of Attorney (POA) allows you—the principal—to designate a trusted agent to share decision-making authority with you. This arrangement is often used when the principal travels frequently, has an unpredictable schedule, or wants to ensure that important decisions can be made promptly if they are unavailable. The “durable” aspect means that the authority continues even if you become incapacitated or go missing, and it remains in effect until you either revoke it, recover your capacity (such as after a medical event like a stroke), or otherwise become available again.

A durable POA can cover financial matters, allowing your agent to pay bills, handle legal expenses, make purchases, and manage other financial transactions. If paired with a Durable Medical or Mental Health Power of Attorney, your agent can also participate in decisions about your medical care from a financial perspective, ensuring providers are paid and necessary arrangements are made.

Your agent is bound by fiduciary duties to act solely in your best interests. They cannot profit from managing your finances, mix your assets with their own, or engage in transactions that benefit themselves unless explicitly authorized in the POA document. They must maintain separate accounts and detailed records, and they may only make gifts of money or property if you have expressly permitted it in the document.

Violating these duties carries serious consequences. An agent who abuses their authority could face criminal charges, including Class 3 Felony Theft, Class 2 Felony Fraudulent Schemes and Artifices, or Class 3 Felony Vulnerable Adult Abuse. Civil penalties may also apply, including liability for up to three times the value of any misused funds or property.

Because of the significant power and responsibility involved, a durable POA should only be granted to someone you trust completely, and the terms should be carefully drafted to protect your interests.

Durable General Power of Attorney (DGPA)

A Durable General Power of Attorney allows you to designate someone to manage your legal and financial affairs—such as signing legal documents and issuing checks—if you are disabled, missing, or otherwise unavailable. Without a DGPA, your financial and legal matters could stall completely, leading to missed deadlines and unresolved obligations. In that situation, someone would have to petition the court for appointment as your legal conservator, a process that can be expensive and time-consuming, involving attorney’s fees, medical evaluations, and surety bonds. Having a DGPA in place before it’s needed helps ensure continuity and protects you from unnecessary costs and delays. Remember, any durable power of attorney—whether for financial, medical, or mental health reasons—automatically terminates upon your death.

Durable Medical Power of Attorney (DMPA)

A DMPA gives your chosen agent the authority to make medical decisions on your behalf if you are hospitalized and unable to communicate. Without one, your treatment could be delayed while someone petitions the court to be appointed as your legal guardian. This document works alongside your living will and should be prepared in advance to avoid disruption to your care in the event of incapacity.

Durable Mental Health Power of Attorney (DMHPA)

A DMHPA authorizes your designated agent to make decisions about your mental health treatment, including decisions about hospitalization, without the need for a formal mental health hearing. Without this document, you could remain confined in a facility while impaired, with your family forced to pursue a costly and stressful court process involving multiple attorneys, doctors, and hearings. By establishing a DMHPA in advance, you ensure that your wishes are carried out directly and efficiently.

HIPAA Authorization

The Health Insurance Portability and Accountability Act (HIPAA) strictly regulates access to your medical information, with civil and criminal penalties for violations. Without a signed HIPAA authorization, doctors and hospitals may refuse to release your medical records—even to close family members—during an emergency. A properly executed HIPAA authorization ensures that your designated individuals can access your health information when needed, potentially making a lifesaving difference.

Caution Regarding Joint Accounts

Some people mistakenly use joint accounts with family members or caregivers as a substitute for a power of attorney or as a way to pass on assets. This is risky because joint ownership allows the co-owner unrestricted access to the funds, leaving you vulnerable to financial exploitation, loss of asset protection, and exposure to the co-owner’s creditors, tax liens, or divorce settlements. Safer alternatives include Pay on Death (POD) accounts or Beneficiary Deeds, which can transfer assets without probate while providing greater protection. Consulting an experienced estate planning attorney can help determine the safest, most effective approach for your situation.

Personal Representatives and Their Responsibilities

A personal representative has one of the most important and demanding roles in estate administration. They are held to a high standard of loyalty—both to the estate itself and to the beneficiaries—and must carry out their duties with honesty, fairness, and diligence.

One key obligation is the duty to avoid conflicts of interest. A personal representative may never place their own interests above those of the beneficiaries, nor may they use their position for unfair personal gain. While they may collect a reasonable fee for their work, they cannot profit from insider information or from transactions related to the estate.

They also have a duty of confidentiality, meaning they must safeguard all estate-related information and only disclose it with proper authorization or a court order. This protects the privacy of the estate and prevents certain beneficiaries from using privileged information to gain an advantage over others.

Another important responsibility is the duty of due diligence. Personal representatives must exercise reasonable care in managing the estate’s property, acting prudently when buying, selling, or otherwise handling assets. Selling property below fair market value to speed up the process, or offering discounted sales to friends, would be a clear violation of this duty.

There is also a duty to protect and preserve the estate’s assets. This can involve hiring security, storing valuables securely, maintaining insurance coverage, or making real estate productive by keeping it in good repair and investing assets conservatively rather than speculating.

Finally, personal representatives have a duty to act promptly when handling required affairs. This includes filing tax returns and other documents on time, paying property taxes to prevent defaults, and keeping all beneficiaries informed about major developments. Communication should be inclusive and transparent—issues often arise when the representative speaks to only one beneficiary and assumes information will be passed along accurately.

If you are serving as, or working with, a personal representative, understanding and following these duties is critical to fulfilling the role effectively and avoiding legal or financial liability.