Tuesday, December 1, 2015


WARNING: At some point in your life the unexpected will happen.  If that “unexpected” is sickness, becoming mentally incompetent, or dying, you will need certain legal tools to get you through that period.  As you are guaranteed to either get sick, become mentally incompetent, or die, or all of them, my advice to you is obtain the following four documents:

          Will: A Will directs how you want your property distributed on death. It also may describe, among other things, who is to manage your Estate (e.g. personal representative or executor), who you want to take care of your children, and instructions about the payment of debts.  It does not avoid probate.  It is a “one way ticket” to probate.

            Durable and General Power of Attorney: A power of attorney gives someone the power to act on your behalf for legal matters.   A durable power of attorney springs to life if you are not medically competent to act for yourself. A general power of attorney gives someone broad authority to act on your behalf and should be carefully drafted to give authority in every legal area that you will need.

            Healthcare Power of Attorney: A healthcare power of attorney gives someone authority to make medical decisions on your behalf should you lack the ability. 

               Living Will:  A living will informs and gives direction about what medical treatment you want should you be unable to express you wishes.  In other words, if you are unconscious or mentally incompetent, this document will state whether you want life sustaining treatment, heroic lifesaving measures, or simply manage the pain while you pass.  

The above documents are the essential estate planning tools.  If you do not have the documents above, there are laws in place to compensate for your lack of planning; however, your end of life could become more complicated and more expensive for you and your loved ones.  Here are the legal alternatives that take the place of the above estate planning tools: 
Missing  Estate Planning Tool
Explanation of Why You Do Not Want This Result
If you die leaving no will, the State will decide how to divide your assets at death. Please know that the rules for distribution may cause you to enrich someone that you did not intend or wish to enrich.
Durable and General Power of Attorney
A conservator is someone appointed by a court that manages all your assets, if you are not competent to do so (e.g. you are addicted to drugs, suffer from dementia, etc.).  The conservatorship is frequently thousands to administer.  The system is ripe with mismanagement, is cumbersome to administer, and can take hours of your loved ones time to administer.   
Healthcare Power of Attorney
A Guardian is someone appointed by a court that manages all your healthcare needs.  If you value privacy, you will no longer have it with the guardian process as your healthcare is the subject of the court.  Moreover, it can costs thousands to administer.
Living Will
If you have not planned for your end of life, someone will plan for you.  This may mean that you are placed on life support for a prolonged period. Moreover, it means that you may burden your loved ones with the decision to terminate or extend life support. 

Wednesday, April 1, 2015

Death and Debt

This is a terrible and misleading article and I want to set the record straight regarding debts and death:

1. If your loved one dies (who is not your spouse) and the loved one leaves behind debt, the survivors are NOT responsible for that debt; rather, the estate of the deceased is responsible.  It is important to note that the deceased cannot avoid the debts by giving his assets to his heirs through beneficiary designation, joint tenancy, or similar device.  The deceased will not escape those debts and creditors may, under the right circumstance, reach into funds transferred in that manner.    

2.  If your spouse dies and leaves behind debt, the spouse is frequently, but not always, responsible for the debt.  For example, the spouse leaves a credit card in his name but not in the spouse's name, the surviving spouse may be found responsible for the debt. A spouse should seek counsel regarding the debt from a qualified attorney because the issues are seldom clear.  

Wednesday, February 25, 2015


This is the third article in a series, Fatal Estate Planning Mistakes, which focuses on "war stories" regarding common estate planning mistakes, as seen by a probate and trust litigator.  These stories are meant to serve as lessons for the average reader.  If the reader sees the mistake below in his or her estate plan, please contact Robert Sewell, Esquire, to discuss how to remedy the problem.

THE FATAL FLAW:  Cindy is an elderly woman with a paid off home, $50,000.00 in a checking account, $100,000.00 in a savings account and $100,000.00 in a retirement account.    She feels herself "slipping" and is no longer able to manage the daily tasks of shopping, banking, and paying bills.  To aid Cindy in her daily tasks she puts her daughter, Shelly, on each account as a joint tenant.  Shelly is now able to transact business from those accounts on Cindy's behalf.  Cindy’s Will grants an equal share of her entire estate, including the accounts, to three children. Upon Cindy’s death, Shelly inherits all Cindy’s cash and all the children inherit an equal share of the house.  In other words, one daughter takes significantly more than the remaining children despite the fact that the will grants each child an equal interest.  The reason for this result is that joint tenant accounts pass to the joint tenant upon the death of one of the tenants. 

THE REMEDY:  Parents who wish their children to take over financial operations for them should not choose joint tenancy to aid them.  Parents should give the child a power of attorney to transact the business.  There are two problems with putting a child as a joint tenant on the account.  First, joint tenancy causes the survivor to inherit all after the death of the remaining joint tenant.  Accordingly, joint tenancy causes one child to inherit more than all the other children.  If the parent wishes for all his/her children to inherit equally, joint tenancy force the opposite result.  Second, joint tenancy exposes the parent to the risk that the joint accounts will be used for the creditors of that child.  While there are statutes to protect against the wrongful taking of an elderly person's joint account, this frequently requires court intervention.  

If you are using joint tenancy, rather than powers of attorney to aid you in your business affairs, please consult with an attorney regarding whether this is a good option for you. 

Friday, February 6, 2015


Clarke will

Wills Without Witnesses

This is the second article in the series, Fatal Estate Planning Mistakes, which focuses on "war stories" regarding common estate planning mistakes, as seen by a probate and trust litigator.  These stories are meant to serve as a lesson for the average reader.  If the reader sees this mistake below in his or her estate plan, please contact Robert Sewell, Esq., to discuss how to remedy the problem.

THE FATAL FLAW: Susie goes to the drug store and buys a will.  She fills in the blanks on the will.  The will calls for two witnesses for her signature and a notary.  Susie believes that two witnesses are optional and chooses only to have one witness and no notary.  In the will, she gives her entire estate to her daughter Janice and disinherits her son Victor (an addict that will use the money on drugs).  The result is that Susie dies intestate, meaning she has no will or estate plan, because the will was not witnessed by two witnesses.  Victor inherits equal to Janice. 

THE REMEDY:  Creating a will is a right given to you by the legislature.  This seems counter-intuitive; however, because so much fraud and deception has been involved with transferring wealth at death, the legislature insists that for a will to be valid it must meet certain requirements. Foremost among those requirements is that the will be signed by the testator whose signature is witnessed by two witnesses.  Attorneys have successfully argued that a will which has one witness signature and was notarized can be made to be valid in court.  However, there is little case law to support that argument and it will be left to a judge to evaluate the facts.  It is imperative to get two witnesses for every will.  Further it is best to have that will notarized. 

If your will lacks two witnesses, you should have the will reviewed by a qualified attorney to determine its validity.