Wills and Estate Planning

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Wills and Estate Planning

Delaware Attorneys Ben Schwartz and Steven Schwartz answer some questions that people ask regarding Wills and Estate Planning. One question they frequently get is: “Who should be going to an attorney for drafting Wills, for preparing Estate Planning documents and do you need to be a millionaire or is this something that everyone should go to an attorney to talk about?”

Hi, I’m attorney Ben Schwartz,

Today we have attorney Steven Schwartz. Steven is the founding partner of our Law Firm. He is my partner, he is also my father. Today we are going to ask him a couple questions about his Wills and Estate Planning practice. Dad one question we have frequently is, people ask who should be going to an attorney for drafting Wills, for preparing Estate Planning documents and do you need to be a millionaire or is this something that everyone should go to an attorney to talk about? I believe everyone should go to an attorney to talk about Wills and Estate Planning documents. You don’t have to be a millionaire. In fact you don’t know what assets you will have when you pass away. People die and they may not have much in the way of assets or they may be quite wealthy and not know it.

For example, I had in the early days of my practice, I had a nice elderly couple as clients. They came to me for Wills. I prepared them, they signed them, and about a year later the wife returned to me and told me that her husband had just passed away. As the facts were relayed to me, I came to realize that this gentleman had died a wealthy man but didn’t know it. He didn’t know he was wealthy. His father, who had quite a bit of money, had died a few days before he had. His father had been in the hospital in California, but they didn’t want to tell my client, the gentleman who I represented and who was also sick and in the hospital in Delaware, that his father was deathly ill. They were afraid it would upset him and so he didn’t know. His father died first and because he survived his father, under his father’s Will he inherited and he died a wealthy man. If he had not had a Will, then his Estate would not have been distributed in the way that he wanted. So it is important, even if you don’t have assets now, it is important to provide for what will happen if and when you do. There are other important things that can be decided by a Will that is not controlled by how much money you may have or assets that you may have. For example people with minor children, if they want to designate a guardian or a custodian to take care of the children upon their death, then the Will is an appropriate document to name a guardian of the person and of the property of your minor children. Even people without assets, without hardly any money at all may want to have a Will so that the future of their children can be decided as to who the children are going to live, with who’s going to have responsibility for caring for them. That can be decided in a Will.

Here is another question for you. When someone comes in and they have a consultation and they establish that relationship, what types of goals do you have or what types of goals do they have for that relationship? Any attorney, everywhere, is going to have as a goal, helping the client to determine how his assets should be distributed on death and how his Estate should be administered after he passes away. Here at Schwartz & Schwartz, we have some additional goals that aren’t always pursued by other attorneys or other law firms. We also make it a point to plan for managing a person’s Estate during his lifetime. For example, when we do Wills, we typically do along with the Will, an Advance Healthcare Directive and a Durable Power of Attorney. When we do those documents along with a Will, we do not charge a client additional for the Advanced Healthcare Directive and the Durable Power of Attorney. We cover that with the cost of the Will itself. I think that is important because those are very important documents. It has always been our policy that when we do a Will for someone, they ought to also have these other documents to provide for the necessary Estate Planning during their lifetimes. These are important enough documents, I should say so that in strongly recommending them to clients, I have never wanted clients to feel like we were marketing documents to them or like we were trying to sell them something. So it was always our policy not to charge extra for those documents when we were doing a Will.

The Advanced Healthcare Directive is terribly important because it contains a Medical Power of Attorney so that if the client is unable to make his own health care decisions because he’s disabled and incapacitated, then the person he names as an agent will have the authority to do that for him. The Advanced Healthcare Directive also contains Living Will provisions which will govern the circumstances under which a person will be maintained or removed from artificial life supports. For example, if a person is in a terminal condition, the meaning is about to die anyway, the person can specify whether or not he would want to be put on artificial life supports. Similarly, if the person is permanently unconscious, which typically means he’s been unconscious continuously for 4 weeks, and two doctors certified is not coming out of it. That is typically the flat brainwave situation. Under those circumstances, the client can specify whether or not he would want to be maintained on artificial life supports. The person can also specify under both of those conditions, terminal or permanent unconsciousness, whether or not he would want to receive nutrition or hydration through conduits. Meaning he can specify whether he wants to receive food and water through tubes. These are terribly important decisions and often family members have to try to deal with these situations. Frequently, family members are not in agreement with one another as to what the patient or the client would have wanted. So it’s important for the client to be able to decide these things while he’s able to do it and the way he does it is with an Advance Healthcare Directive.

We are talking about the goals of representation or goals for our client. This is something that is typically a goal for the client, but really the goal is to make the decisions so that the client is not a burden on their family members. Is that what I hear you saying? Well not just a burden, but also so that we don’t end up with conflict among the family members. That is a real goal of ours in doing Wills. Just to take it back to the initial question, what our goals in preparing Wills? One of the important goals that I have always pursued and this office pursues is helping people plan their Estates – to try to avoid circumstances that are going to cause conflict among family members. It is often possible to draft a will that will predictably cause problems among the family members, create conflict, and it’s often possible to draft a will to avoid this conflict. I think an attorney has an obligation to do what he reasonably can to avoid creating problems, to avoid creating conflicts among family members. That is a major focus of our Estate Planning too.

Last question, how come you look so good and I look like I am working hard? Well, somebody has to do the heavy lifting Ben… and Ben, that’s you! I’m attorney Ben Schwartz and today I’m interviewing my father and my law partner Steven Schwartz. Thanks for watching the video & please feel free to contact us if you have any questions or concerns.

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