Can I leave my wife out of my Will?

A surviving spouse may inherit from his deceased spouse’s estate even if there is a Will that leaves nothing to the surviving spouse. New Jersey laws enables a surviving spouse to inherit from his deceased spouse’s estate under the theory of the ‘elective share’ or the ‘omitted spouse share.’


Elective Share
Under New Jersey law, the surviving spouse is entitled to receive an elective share equal to one third of the deceased spouse’s augmented estate. The augmented estate is generally the deceased spouse’s probate estate including all assets passing under the decedent’s Will. The augmented estate also includes certain assets that the deceased spouse transferred during his lifetime if the deceased spouse had maintained some type of control over these assets. The augmented estate also includes certain transfers made within two years of the death of the decedent.

The augmented estate is reduced by funeral and administrative expenses as well as other enforceable claims that are made against the deceased’s estate.

The elective share is not automatic. Several conditions must be satisfied for a spouse to claim the elective share. These include:
(1) The husband and wife must be living together as spouses when a spouse passes away;
(2) The surviving spouse will need to timely file a complaint in court to claim the elective share; and
(3) If a person has property, either acquired independently or inherited from your spouse, that is equal to or in excess of the elective share amount, the elective share is deemed satisfied; a person will not be entitled to anything beyond what is provided under the Will.


Assume John has $300,000 in assets that pass under his Will. The beneficiaries under John’s Will are solely his children (he leaves nothing to his wife). The elective share amount is equal to one-third of the total assets of the estate or $100,000. However, assume that his wife already accumulated $120,000 of her own assets. Since wife has already inherited more than the elective share amount, the wife would not be entitled to the elective share.


Omitted Spouse Share

Assume that prior to marriage, a person writes a Will that makes no provision for a future spouse. Sometime later, this person marries. Next, this person dies. The surviving spouse may be entitled to an intestate share of the deceased spouse’s estate irrespective of how the Will has been written.

Intestate means  that a person died without preparing a Will. Here, New Jersey law would define the manner in which the deceased person’s estate would be distributed. The distribution would depend on whether the deceased had children or living parents.

The omitted spouse will not receive the omitted spouse share if the contents of the Will demonstrate that the omission was intentional or if the deceased spouse explicitly provided for the surviving spouse outside of the Will.



Assume husband and wife get married but never get around to updating their Wills after their marriage. They have no children, and the husband’s parents are deceased. The husband passes away and his Will designates his siblings as sole beneficiaries of his estate. As an omitted spouse, his wife is entitled to the entire estate irrespective of the provisions of the Will.

If the husband’s parents are surviving, the wife will receive the first 25% of the estate, but not less than $50,000 nor more than $200,000, plus 75% of the balance (the parents receive the remaining 25%).

If the husband designates his daughter from a prior marriage as the beneficiary under his Will rather than his siblings, wife will be entitled to the first 25% of the estate but not less than $50,000 nor more than $200,000, plus one-half of the balance (husband’s daughter will receive the rest).

It is possible for either spouse to waive both the elective share and the omitted spouse share.

Continue Reading

Guardians and Custodians for Children

Planning for the care of your children may be at the center of your mindset during the COVID-19 pandemic. Who will care for your minor children if you become unavailable? This article explains the concepts of a guardian and a custodian.

Nominating Guardians

For a parent with minor children, the most important issue in the estate plan is usually naming the person who will act as guardian for a person’s children. A will maybe utilized to nominate a guardian. In New Jersey, a minor is an unmarried person under 18 years of age. Guardianship gives legal custody of the minor child and/or the minor’s assets to the appointed guardian.

Selecting a Guardian

Although, a parent may appoint a guardian of the parent’s minor children in the parent’s will, the court may inquire into the custody of the minor and effectuate a guardianship order in the best interest of the minor. While a parent may want to appoint someone other than a child’s other parent as guardian in his will, that appointment will not be effective unless the surviving parent timely consents in writing.

Guardian of Person or Property

If a person dies with minor children and the surviving parent has predeceased or is otherwise unable to care for the child, a guardian of the person of a minor child is necessary.  A guardian of the estate of a minor child is useful if the minor child receives funds outright. For example, the minor could receive funds via a will, from sources besides a parent, and by a beneficiary designation (i.e. joint bank account, life insurance, etc..).

A testator can select different guardians for a minor’s person and property. For example, a parent may want one person to have legal custody of a minor child and another person to manage finances of the minor child.

Understanding Custodians

If a person does not want to create a guardianship for his minor children, but still wants to protect assets that may pass to his minor children, a person may nominate a custodian under the New Jersey Uniform Transfers to Minors Act.

A will may nominate a custodian to hold the minor’s property. If the will fails to nominate a custodian, the personal representative may designate a custodian. Custodial property includes real property, tangible personal property, investments, and life insurance policies. A custodial property will only be created once a person effectuates an irrevocable transfer of the property to the nominated custodian. A custodianship can be conditioned on the occurrence of a future event such as a parent’s death. A custodian is generally held to the prudent person standard in managing custodial property. The custodianship terminates when the minor reaches age 18 or 21 (depends on the type of property).

A discussion with the proposed guardian or custodian is necessary to ensure that this person will accept the role given to him. Age, location, and life expectancy are important considerations in choosing a guardian or custodian. A candid discussion with the party will ensure that this person will be a good fit for the assigned role.

Continue Reading

Asset Protection Strategies for Business Professionals

asset protection




Professionals providing services to others are at risk for liability claims. It is important to engage in asset protection strategies to protect wealth and minimize potential liability. Asset protection strategies include:


Gifting Assets
Gifting strategies are powerful wealth transfer tools. Gifts may be effectuated via (a) an outright gift of an asset, (b) use of an irrevocable trust for the benefit of others, (c) establishing a family limited partnership, or by creating an (d) irrevocable life insurance trust.


Domestic Asset Protection Trust
Under a fundamental Domestic Asset Protection Trust, a person may transfer assets to a trust while retaining the right to receive distributions from the trust. In comparison to gifting, the settlor continues to receive wealth from his assets.


Pre-Marital Asset Protection Planning
Preparing a prenuptial agreement will assist in sheltering assets during a divorce as well as against claims against the married couple.


Tenants by the Entirety Property
Instead of titling assets jointly, assets may be titled tenancy by the entirety. This property designation is recognized in New Jersey, however it only applies to married couples. It is difficult for creditors of only one spouse to reach assets held as tenancy by the entirety to satisfy claims.


Qualified Retirement Plans and IRAs
Qualified retirement plans and certain IRAs are protected from creditor claims to a certain extent. Maximizing contributions to these investment vehicles will enable a person to growth wealth and minimize claims from potential creditors.


Choice of Business Entity
Generally, forming a business entity for a professional services practice will not eradicate a professional’s personal liability from a malpractice claim related to his or her work, however, it will help shield the professional’s personal assets from claims arising from the workplace. Selecting the proper business entity is also important for business succession planning.


Segregation of Business and Investment Assets
It is not uncommon for professionals to own other business assets such as real estate, investments, equipment, collectibles, or land. It is important to consider shielding these assets in separate business entities and leasing these assets back to the operating entity. For instance, a physician may own an office building from which he operates his practice. This physician could create one entity as the operating entity for his practice. A separate entity could own the building from which the practice operates. The physician would remit rental payments to the entity that owns the building.


Liability Insurance
In addition to having business insurance, professionals should ensure that their home and auto insurance coverage is sufficient to protect against claims. An umbrella policy will cover gaps in other policies or policies in which the claims exceed the policy limits.

Continue Reading

Estate Planning Basics



Irrespective of the size of your estate, an estate plan can help to take care of both you and your family. Below are some of the common estate planning documents:

Health Care Power of Attorney and Living Will. A Health Care Power of Attorney and Living Will document allows you to appoint an agent to make health care decisions on your behalf if you are incapacitated as well as to articulate health care decisions if certain conditions surmount.


General Durable Power of Attorney. A general durable power of attorney allows you to appoint an agent to effectuate financial decisions.


Last Will and Testament. A Last Will and Testament names your executor and provides what will happen to your property at your death. Executor refers to the person that will manage your estate upon your death.


Guardianship. A Last Will and Testament may be utilized to engage in planning for your minor kids. You may name the person you wish to serve as guardian for your child or children under your Will. If you fail to name a guardian, a court may appoint someone. Additionally, minor children cannot hold title to property in their own names. A Will enables you to create a testamentary trust and appoint a trustee to manage assets for the benefit of your children.


Revocable Trust. A Revocable Trust can be used to plan for incapacity as well as to avoid probate expenses. During your lifetime, you are the owner of any assets in your revocable trust. You can also manage these assets as a trustee during your lifetime. After your death, you can name a successor trustee to manage your assets. Assets already in a revocable trust are generally not subject to probate, which may be a cost and administrative savings for your estate.


It is important to review your estate plan periodically especially if you have had a major change in your family structure, such as a birth, death, divorce, or health issues.

Continue Reading

Can an unsigned document be admitted into probate?

A written document does not need to be signed by a testator (person writing a will) to admit the document into probate in New Jersey. Probate is the formal legal process to establish the validity of a decedent’s will.

Procedurally, a person desiring to admit a writing to probate must demonstrate by clear and convincing evidence that the decedent actually reviewed the document in question AND that the decedent assented to the substance of the document.

In a recent New Jersey court case, an heir challenged the validity of a will by asserting that the written document in question constituted the basis for a subsequent will that the decedent intended–but was unable to draft.

The court held that under New Jersey law the writing was sufficient to constitute a will because the substance of the writing demonstrated that the decedent desired to provide precise instructions for decedent’s estate.  This included burial instructions, appointment of an executor, and liquidation/distribution of decedent’s assets.

Further the court held that under the harmless error doctrine the writing need not be signed to be admitted to probate under N.J.S.A. 3B:3-3.  Additionally, the fact that the decedent signed the will at the beginning will not invalidate the will as long as the proponent of the will establishes by clear and convincing evidence that the decedent intended the writing to represent decedent’s signature.

The clear and convincing standard should produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.



Continue Reading

Requirements for a valid will in New Jersey

Under New Jersey law, a will must be:  (1) in writing, (2) signed by the testator or in the testator’s name by some other individual in the testator’s conscious presence and at the testator’s direction; AND (3) signed by at least two individuals, each of whom signed within a reasonable time after each witnessed either the signing of the will as stated in (2) or the testator’s acknowledgement of that signature or acknowledgement of the will.


A will may be valid irrespective of whether it is witnessed if the signature and material portions of the document are in the testator’s handwriting.

Continue Reading

Understanding reconsideration in New Jersey

After a New Jersey court has issued a judgment, prior to filing an appeal a party may ask the court reconsider its ruling.  R. 4:49-2 governs the reconsideration process in the New Jersey Civil Courts.  The motion for reconsideration must be filed with the court no later than 20 days after the service of the final order upon all parties.  The service is effectuated by the party obtaining the order.  The motion must concisely state the basis for reconsideration including a statement of matters or court decisions which the aggrieved party asserts the court overlooked or applied erroneously.

The reconsideration must be filed with the court that issued the judgment.

Continue Reading

Delaware Ruling Encourages Firms To Modify Removal Provisions

The Delaware Chancery Court recently held that directors in companies without classified boards may be moved from office without cause irrespective of the provisions of a company’s corporate charter.  This ruling should encourage companies to review their bylaws and amend these bylaws as necessary.

A significant amount of Delaware companies have non-classified boards with bylaw provisions that only allow removal of directors ‘for cause.’ The Delaware Chancery Court reasoned that these provisions were not valid under Delaware law. In in re Vaalco Energy Shareholder Litigation, the court held that under Delaware General Corporation Law Section 141(k), a majority of stockholders have a right to remove directors without cause unless the corporation has a classified board or cumulative voting.

This ruling may present Delaware as a less friendly place to do business. However, this mandatory removal provision will not apply to limited liability companies or limited partnerships. Further, this ruling will not apply to companies that decide to adopt cumulative voting or companies that adopt a classified board.

Continue Reading

Post Mortem (After Death) Checklist



1. Contact and retain a properly licensed attorney knowledgeable in the area of estates promptly after death. Work with the attorney to prepare a list of all legal deadlines to make claims. The attorney will commence any necessary court proceedings and coordinate the following activities with the personal representative in writing, the trustees (where a trust is involved) and/or other attorneys.

2. It is necessary to collect approximately multiple (at least 5) copies of the death certificate for legal purposes. These will be used to supply official proof of death to agencies such as the banks, insurance companies, social security administration, etc. All require certified copies. If you require additional copies in the future the funeral director may obtain them for you or you can go get them from the city or county clerk where the death certificate was originally filed. There may be additional charges to obtain copies of the death certificate at a later time.

3. Financial institutions where the deceased conducted business should be notified as to the fact and date of death of the deceased. These include banks, savings institutions or credit unions with which the deceased may have had accounts or safe deposit boxes. Replace the deceased’s name from any accounts with that of his or her estate as soon as possible.

4. The deceased’s employer or previous employer, if he or she was retired at the time of his or her death should be notified as to his/her death and the time thereof. Ask the personnel department whether or not there are any insurance policies in effect, as well as who owned the policies, what loans and claims are thereon, who the beneficiaries thereof are, what death benefits are available and to whom and what pension monies are due and other employee benefits are due to the deceased or any survivor. Have your attorney review and report upon them to you in writing.

5. Check for applicable automobile insurance. Obtain the policies and read them or have them read and reported upon to you by your attorney in writing. If the deceased was killed in an automobile accident, ascertain whether any insurance benefits exist concerning all parties, including both drivers and both vehicles owners, whether the policies were in effect with all premiums paid at the time of death and whether any unused portion of the insurance premium is refundable and to whom will it be payable.

6. If the deceased was a member of a union, fraternal organization, etc., notify those organizations. Benefits could be available to the surviving spouse or his or her children. Have your attorney review these benefits and report upon them to you in writing.

7. Inquire as to the existence of any health insurance coverage for you and your family, including what coverage was paid for and by whom and was in effect at the time of death or injury that gave rise to death. Find out when any benefit of this nature expires and whether they can be extended in certain events.

8. Go to a local Social Security office and survey any benefits due the surviving spouse or his or her children. Apply for them promptly to avoid expiration deadlines.

9. In the event that the deceased was a veteran, call the Veteran’s Administration and obtain instructions and forms listing their requirements to process, along with the location of the closest Veteran’s Administration or Soldiers and Sailors Relief Fund. Apply for them promptly to avoid expiration deadlines.

10. Keep an up-to-date accounting of all income and expenses pertaining to the deceased.

11. Review the relevant present financial circumstances pertaining to the deceased. Were any debts owed to the deceased? If so, make sure an effort is made to collect them as soon as possible. The longer you wait the harder it will be to collect them and the cost of collecting them will keep going up.

12. In a situation where no assets exist, and income or monies are due the deceased or you presently, you might also see if you or the deceased qualify for emergency aid from the Department of Social Services.

13. Prepare a brief chart showing any legal questions concerning the deceased with your attorney’s fees, including what must be done, by whom, and by when, expected resolutions, and costs thereof. This should ultimately designate who will deal with what matters in a written notice sent to him/her/it and keep a copy of the designation, which should state any deadlines or other significant facts to keep in mind in that regard.

14. Ascertain who owns the assets that were used or available to the deceased, and what money or obligations were owed by the deceased at death and where the source of funds to pay liabilities will come from after death.

15. Consistent with the requirements to probate the estate, devise a plan to pay all bills and expenses with your attorney as soon as possible ( e.g., funeral expenses, real estate maintenance, home mortgage bills, hospital bills, etc.) Review whether any credit life insurance policies that were current at death with your attorney which could have been carried against major loans. Arrange to collect on any insurance polices as soon as possible through your attorney.

16. When the deceased had been in a hospital or a hospice, obtain the statements of account from those institutions, investigate their requirements and ascertain what funds exist with which to pay them.

17. Retitle stocks, bonds and other securities in the appropriate names of the beneficiaries using probate court orders as necessary.

18. Ascertain whether any pre-arrangements of the decedent’s own funeral and proposed interment site exist.

19. Figure out whether any disclaimers of bequests or gifts are advisable after death and arrange to have them made.

20. Ascertain who owns the real estate of record and other property that was available to the deceased and who holds any mortgage thereon and the extent of any claims against the property. Make sure all real estate transactions are recorded in the Register of Deeds where the land is located. Obtain Probate Court orders therefor as necessary.

21. Retitle automobiles, recreational vehicles, water craft, motor vehicles of other types, etc. into the name of the successors thereto using Probate Court Orders as necessary (if the estate is probated through the Probate Court) and any other clearances through the local Secretary of State’s office or other officials.


It is wise to contact or call all parties concerned ahead before visiting their offices and taking their time to check on documents for you or that you will need. Where legal documents have to be given to anyone, make sure to keep a receipt therefor.

• Armed Services Discharge Papers, showing the final rank

• Automobile, and Other Vehicle Titles, including Boat, etc.

• Bank Deposit Books or Certificates of Deposit

• Certified Copies of the Death Certificate

• Certified Copy of the Marriage Certificate, and/or Court Order of Divorce

• Certified Copies of the Birth Certificate for each child

• Contracts to which the Deceased is a Party

• Deeds, Leases and Title to property, oil and gas wells and mines

• Durable Powers of Attorney

• Insurance Policies and Annuities

• Judgments and Injunctions Outstanding

• List of Intangible Assets

• List of Tangible Personal Property and its Location

• Living Wills

• Loan, Installment Payment Books or Contracts

• Patient Advocate Designations

• Stocks, Notes, Bonds, Debentures and Other Securities, Royalties, or Investment and Mortgages owned by the Deceased or his interests

• Veteran’s Administration Claim Number of the Veteran had one

• Wills and Trusts

Continue Reading

FAQs About Estate Planning





What happens if I die without a will?




If you fail to plan your estate and die without a will, the law will create a plan for you. The entire system—which is set forth by statute—is too complex for a discussion here, but some surprising and frequently undesirable results can occur. The law prescribes both the persons to whom your property will pass and the division of your estate among those persons. The distributions provided by law are inflexible and may not satisfy your desires as to distribution of your estate. In addition, the amount to be distributed to your children will require a cumbersome and costly legal conservatorship if the children are minors at the time of your death.


The problems of dying without a will are aggravated if a married couple owns a family business with fifty percent owned by each spouse. If one of the spouses dies without a will, the ownership interest of the deceased spouse, for example, may pass to the surviving spouse and minor children, and a legal conservatorship may be required to manage the portion of the business interest that passes to the minor children. The surviving spouse will have the conservatorship for the minor children as a “partner” in the family business. In accordance with the requirements of a conservatorship, the surviving spouse may have to post a bond and make a detailed periodic accounting to a court for all business transactions.


If you die without a will and are survived by your spouse and no children, not all of your estate may pass to your surviving spouse; part of your estate may pass to your parents. Again, such a division of your property may not accurately reflect your wishes.


If you die and are survived by your children only, leaving no surviving spouse, your entire estate will pass to your children. If they are minors, a conservatorship may be necessary to manage their property.






Is a handwritten will legal?




A holographic will is one which is solely in the maker’s handwriting. If it meets the other requirements for a will, a holographic will can be valid.


Holographic wills are a fruitful source of litigation, usually because they have been composed by someone who has had no legal training.






Why should my will be more than one page long?




Your will need not be any longer than one page. Indeed, any lawyer should be able to turn out a pair of “one-pagers” for a relatively small fee.


The problem, however, is that such a will may not accomplish your objectives for your beneficiaries. We prefer to draft wills to cover the various factual and legal situations that reasonably may arise. The alternative is to hope that, by coincidence, the will may fit the facts at your death.


Accordingly, we may present you with a lengthy instrument. This “burden” to you may be a possible blessing to your family when they later find that you have anticipated and planned for what might have been cumbersome problems.






What property will not pass under my will?




Proceeds from life insurance policies and retirement benefits will pass in accordance with the beneficiary designations and not under your will. In addition, property held as joint tenants with right of survivorship accounts (e.g., joint bank or brokerage accounts with right of survivorship) will pass to the surviving account holder and not under your will. Therefore, you should review your beneficiary designations and account agreements to be sure they are coordinated with your will.






What is a personal representative?




Your personal representative is the person who will serve as the primary representative of your estate. You may be more familiar with the terms “executor” or “administrator” for such an individual.






What is “administration” of my estate?




Administration of an estate involves the collection of assets, payment of liabilities, and distribution of properties to the beneficiaries or heirs. Administration of an estate is conducted under some degree of court authority and supervision, but different procedures are available. The three basic types of procedures available are called “informal,” “formal,” and “supervised.” Generally, the “informal” proceedings for the probate of a will are administrative (rather than judicial) in nature. An informal proceeding may administer the estate without continual court involvement and will mature into a final settlement of the estate after the passage of a specific length of time. “Formal” proceedings are initiated by a petition to a court, and a formal proceeding becomes effective only after notice to interested persons, a hearing, and an order of court. “Supervised” administration is a single continuous proceeding requiring formal procedures and frequent court involvement.


Some of the factors that we will consider in determining which procedures or devices to use are: (1) the value of your estate subject to administration; (2) the applicable statute of limitations; (3) the degree of trust, co-operation, and agreement among the beneficiaries and creditors of your estate; (4) your express wishes regarding administration, as stated in your will; (5) the complexities of the administration; (6) the degree of protection from liability needed by the successors or by the personal representative or both; and (7) proof of title to property requirements.


Wherever possible and appropriate, we try to use informal administration that to a large extent operates independently of court supervision. Informal administration is less cumbersome and time consuming, and therefore is less expensive.






What is a trustee?




A trustee is one to whom property is transferred for the benefit of someone else (the beneficiary).


We find that our new estate planning clients frequently misunderstand trusts. Many of our clients have heard a horror story about a trust, such as an impoverished widow-beneficiary who cannot extract enough money from the well-funded trust to maintain herself.


Present law, well drafted trustees’ powers, and professional trustees now make this concept of trusts obsolete. A trust can be designed to produce almost any result you desire, if you fund the trust with sufficient assets. We usually recommend that trustees be given very broad and adaptable powers to provide flexibility for future events. The trustee should be empowered to do what is best for the beneficiary, without being hampered by inappropriate restrictions.


If a trust appears suitable for your estate plan, you will want to select the trustee carefully. The family member or friend who comes to mind as a logical first choice may not really want to deal with the management of your assets. If a corporate trustee appears appropriate, we will suggest that you have a conference with a trust officer of the proposed bank or trust company. Further, you should consider giving someone, such as a committee, the power to change trustees. This could obviate the need to go to court to have a trustee removed and a successor appointed.






What is a living trust?




A “living trust” is a trust that a person (the “Grantor” or “Trustor”) establishes during his or her lifetime. A living trust may be for the Grantor’s own benefit or for the benefit of others. The trust may be funded either during the Grantor’s lifetime or at the Grantor’s death. Revocable living trusts for the Grantor’s own benefit are appropriate in the following circumstances:



The Grantor owns real property in another state



The Grantor is likely to become incompetent



The Grantor wants the disposition of his or her property to be kept private, and not in the public record



The Grantor wants his or her property holdings to be kept private, and not in the public record



A will contest is likely or anticipated



The client wishes to reduce the cost of the probate proceeding


We refer to a living trust for the Grantor’s own benefit as a “revocable management trust.”






What is community property?




A number of states have adopted a community property system for marital property. These states use marital property law schemes that differ markedly from the states that use the common law scheme. Under the community property system, marital property generally is deemed to be owned one-half by each spouse, regardless of the legal title to the property. In community property states, marital property generally takes its character from the manner and time of acquisition.


If you ever lived in a community property jurisdiction while married, we may perform a special review of your estate plan to account for the community property consequences.






Who will raise my minor children after my death?




The other parent. But if the other parent is not living, this becomes a selection you can make in your will. If you fail to do so, the court will make the choice for you. Needless, to say, you should assume the responsibility for this important decision, and not leave it up to the judge.


Clients frequently tell us that they have chosen one of their parents as the “guardian” in the event of both clients’ deaths. A quick mathematical computation may shed light on the advisability of this choice. For example, assume that the youngest child is 3 years old and the client’s parent is 58. When that child is 15 (i.e., a time at which adult-child communication can be difficult under the best of conditions), the grandparent will be 70.


A choice other than your parents may be better for your child. You might look first to your contemporaries in your families (such as brothers, sisters, or cousins). If no family member is available or appropriate, then consider friends with children in the same age range as yours. In any case, you should consult with the proposed guardian to ensure that he or she is agreeable to assuming this responsibility.


If you have planned your estate properly, the guardian should not experience financial strain in raising your children. We usually suggest that, upon the death of you and your spouse, a trust be established for your minor children. The trustee can be authorized to make distributions to assist the guardian and even provide funds to pay for any necessary expansion of the guardian’s home.






How frequently should I review my estate plan?




As a general rule, we suggest that you contact us every four or five years for a conference to review your estate plan and to update the information previously provided. We also recommend that you contact us in the event of a significant change in your finances or in your family situation.  While we sometimes send information to our clients regarding changes in law, we do not assume the responsibility of doing so, regardless of whether we retain the original copy of the will.






What is a power of attorney?




A power of attorney is an instrument in writing by which one person, as principal, appoints another as agent, and it gives the agent authority to perform certain specified acts or kinds of acts on behalf of the principal. The person holding a power of attorney is known as an “attorney in fact” or “agent.” We have found that many clients want to appoint someone to act for them, particularly in the event of disability.


Generally, a power of attorney terminates on the disability of the principal, but the Uniform Probate Code contains provisions that make a power of attorney more “durable” than under the law of some jurisdictions. Such a power of attorney is referred to as a “durable” power of attorney. Under these provisions, a written power of attorney specifically may provide that the subsequent disability or incapacity of the principal does not affect the power of the appointed attorney in fact. These provisions also permit a power that will become effective in the future at the time of disability.






What is a Living Will?




A directive to physicians (commonly known as a living will) is a document that provides instructions to your attending physician to provide, withhold, or withdraw life sustaining procedures in the event of a terminal or irreversible condition. The directive to physicians also allows you to specify the types of treatment, like artificial hydration and nutrition that you would like to have provided or withheld. We advise you to consult with your personal physician in completing the directive to physicians.






What is a Medical Power of Attorney?




A medical power of attorney is an instrument in writing by which you, as principal, appoint another as your agent to make health care decisions if you are incapable of doing so or are incapable of communicating with your physician.






What is a Declaration of Guardian?




A declaration of guardian is a document in which you, as a competent adult, designate a person to serve as guardian of your person or estate in the event you become incompetent. In the event of incompetency, the guardian of your person would take charge of the care of you, and the guardian of your estate would manage your property and financial affairs. Due to these different functions, you may wish to appoint different persons as guardian of your person and guardian of your estate. Many husbands and wives, however, appoint each other in both capacities.


Because of the widespread use of powers of attorney, we do not see many guardianships of the estate for adult persons. The need for a guardianship could arise, however, and our clients sometimes prefer to choose the person to be appointed as guardian by the court. In the event that a conservator, guardian of your estate, or other fiduciary is appointed, your attorney-in-fact is accountable to the fiduciary as well as to you, and the fiduciary will have the same power to revoke or amend the power of attorney as you would (if you were not disabled or incapacitated).


Continue Reading