A Notary’s Role in Estate Planning

These three documents: a power of attorney, a trust and a will are those which give other people the right and obligation to act for and in your behalf in the event that you get grievously ill and can no longer act with legal capacity or when you die.

A power of attorney is a legal document that gives an attorney-in-fact the power to sign documents, obtain funds or spend them as though you yourself were doing the actions yourself. For instance, when you are lying sick in the hospital and unconscious after surgery and your car is to be sold to meet hospital bills, then a power of attorney will give your attorney-in-fact (who may be a close friend or relative or your lawyer) the power to sell your car. The power of attorney makes your attorney-in-fact your agent. The agent will cease to have power to act on your behalf when you revoke the power of attorney. Death is a final revocation of all powers of attorney.

On the other hand, a trust designates a trustee over properties placed in trust. The trustee has the same powers as an attorney in fact except that a trustee’s power to represent you and act on your behalf is limited to properties in trust. A trust exists when specific properties cannot be sold or donated for a specified period but its income can be paid out to beneficiaries. For instance, if you own storefront properties from which you earn rental income. As you grow old, and feeble, you want that the properties be kept for your children. You can set up a trust for those store-front properties. You can even make it so that the income from it will be kept in a deposit for your children to be given to them upon your passing or when they need it for college. The trust endures during your lifetime and even through your death, until all the conditions of the trust have been fulfilled and the trustee has transferred the assets of the trust to your beneficiaries.

Lastly, a will is a document that makes a list of all your worldly goods and possessions with an estimate of their value, and distributes them to all your heirs or people and organizations whom you want to benefit from your properties upon your passing. In a will, you can name an executor who will make sure that all the properties you leave behind will be given to your heirs. Part of the executor’s job is to make sure that your will makes it through the court process and all your debts paid.

As you can see, all these three documents give people power over your properties. An attorney-in-fact, a trustee and an executor must loyally fulfill all the terms of their office, in accordance with your wishes. For this reason, the law requires these types of documents to be executed and signed before a notary public. The notary public will determine first of all if the conditions and purposes in your trust, will or power of attorney are lawful. The notary will ensure that they are in the form required by law. More importantly, a notary will ensure that, first of all, the person executing the power of attorney, trust or will is of sound mind – that he or she knows and understands what he or she is doing. The notary will also have to determine if the person is not being pressured, duped or influenced to execute those documents.

The notary will determine the identity of the person executing those documents and the witnesses who will sign those documents. The notary will also determine the ownership of the properties subject matter of the trust or will – the trust or testator must own those properties. Lastly, the notary will witness the signing of the documents so that in the future, if any legal question arises from those documents, the notary may be called in to testify as to the genuineness and due execution of those documents.

Notaries need to be competent, experienced and efficient. For help in obtaining the services of a notary in the Brooklyn, Queens or New York City areas please send an Email or call us at 718-701-0095. Our notary is a duly licensed Attorney and commissioned Notary in the state of New York. She travels to jails, businesses, homes, nursing homes and hospitals.

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