Stephen L. Nowak – Delaware Attorney
Law Offices of Stephen L. Nowak

The Law Offices of Stephen L. Nowak recommends that all adults should have at least three estate planning documents: a Will, a Durable Power of Attorney, and a combined Living Will/Medical Power of Attorney. This is true no matter how small you feel your estate may be.

1) Will – A Will is a legal document that details who is to receive your estate’s assets (after payment of debts and taxes) and who will carry out the execution of the Will (the executor). If necessary, it may also state who is to care for your minor children.

Without a Will, the laws of the State of Delaware will determine who will receive your estate’s property. Your spouse, children or other heirs could end up with less than you planned, or people that you didn’t intend could end up receiving your property. Your children might not have the guardian you wished, or inherit money before they are mature enough to manage it. Further, your estate could end up paying much more in taxes and legal fees than necessary.

Remember, however, that a Will does not control everything in your estate plan. For example, if your Will lists your children to receive your entire estate, but your ex-wife is still listed as the primary beneficiary of your life insurance policy and retirement account, then your ex-wife would likely end up with those assets, regardless of your wishes that you expressed in your will.

2) Durable Power of Attorney – A Durable Power of Attorney is a lifetime document that allows you to designate a representative; such as your spouse or adult child, to perform certain actions for you should you become ill, incapacitated or otherwise unable to manage your affairs. The representative could, for example, pay bills, manage your property, sell securities or real estate, deal with government agencies, or make major financial decisions on your behalf, depending on how broad or narrow you limit the powers. Without a power of attorney, your spouse or other loved one would have to go through the delay and expense of seeking approval from the court to carry out needed financial transactions.

3) Living Will/ Medical Power of Attorney – A living will (advance medical directive) is an individual’s written declaration of what life-sustaining medical treatments will be allowed or refused in the event they become in a persistent vegetative state or terminal condition. For example, the person may request that artificial nourishment be withheld if he or she is terminally ill without hope of recovery.
The Medical Power of Attorney authorizes a person to make medical decisions on your behalf, ideally to carry out what you’ve specified in your Living Will. Talk to the person before appointing them, and be sure they understand and are comfortable with your wishes, and will be strong enough to carry them out even though some family members may object.

Recent federal regulation known as the Health Insurance Portability and Accountability Act (HIPAA) regarding disclosure of individually identifiable health information necessitated the addition of a special release and consent authority to all healthcare providers before medical information will be released to agents of the patient. Your estate planning attorney should, as we do in our office, ensure that your Medical Power of Attorney will be HIPAA compliant.

While you can save money by creating some of these legal documents on your own with pre-prepared forms, we recommend for several reasons that people have a competent estate planning attorney draft the documents. A professionally drafted will ensures that your estate planning documents will conform to the laws in Delaware and further ensures against potential legal challenges and the failure to include important details which may render the Will invalid.

Improperly drafted or last-minute, hand-written estate planning documents are frequently contested and invalidated in court. These documents often can be drafted for as little as few hundred dollars, depending on how simple or complex the clients needs are. Preparing in advance can, however, save your loved ones much grief and expense in the future.

I recently was involved in an estate where a gentleman had passed without a will leaving a surviving spouse and three children. This deceased gentleman was in his late 60’s and his first wife had died several years previously. His second wife was in her late 40’s, in fact, just a few years older than his children. Although his second wife and his children had always gotten along prior to his death, the Delaware law of intestate succession put substantial strain on their relationship once they became aware of the distribution required by law.

Because this gentleman had died without a will he is said to have died intestate. In this situation where he left a surviving spouse who is not the mother of the surviving children, Delaware law entitles her to a life estate in all her deceased spouse’s real estate and one half of all his other property. The surviving children are entitled to a remainder interest in the real estate (to take possession of it after she dies) and the other half of all their father’s property. As to the real estate, this was particularly awkward because neither the stepmother nor the children completely owns the property and, because she was only in her 40’s, the children were facing a very long wait to take possession of the house. The stepmother had a difficult time selling her interest in the house because she only owned the right to possess the home during her lifetime. To sell the home, both the stepmother and children had to join in the transfer to convey both the lifetime and remainder interests. Requiring the children’s agreement to sell the property caused particular problems for the stepmother because there was disagreement as to the proper method to value her share of the sale proceeds. The value of the stepmother’s share was based on her life expectancy, which hotly contested given that the stepmother was in poor health and was not expected to live to her actuarial life expectancy.

In the end, a far greater proportion of the estate assets were spent on litigation between the heirs instead of going to the heirs which was the intent of the deceased gentleman. If he had made a will clearly defining who was to receive these assets upon his death, these disputes would have been avoided and the estate’s funds would have been preserved.