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Camden Delaware Real Estate Law Blog

Same-sex couples may have more estate planning challenges

In Delaware and elsewhere, virtually every adult confronts certain issues and challenges when they think about their legal estate and the possibility of becoming incapacitated at some point in their lives. Many same-sex couples experience additional challenges as they consider estate planning issues. Perhaps one of the primary, and potentially most important challenges is the legal status of their relationships.

When same-sex marriages were recognized legally, many states automatically converted civil unions and domestic partnerships to marriages. Many couples who were together before the change may not realize that they are now considered legally married, which often impacts how estate planning is done. Before embarking on any estate planning, it may be necessary to verify this point.

Estate planning consideration for a second marriage

Many Delaware residents are fortunate enough to find love a second time in their lives. Getting married for the second time often brings with it financial issues that need to be worked out between the parties. Some may forget that estate planning should also be looked at since each party may bring their own assets, debts and children to the marriage. How those assets are controlled and passed on after death depends on the parties.

Before making any decisions regarding changes to an estate plan, each party might consider several factors that could affect the distribution of assets after death. First, if the parties share a home owned by one of them prior to the marriage, will the other spouse be allowed to remain in the home after the legal owner's death? If so, will the home be given to the surviving spouse or will he or she only be given the right to live there until death, at which point ownership is passed on to an heir of the legal owner?

How do HOA's fit into residential real estate transactions?

Many Delaware residents who buy homes, townhouses or condominiums discover that they must become part of a homeowners' association. The fees associated with an HOA are only one small part of what it means to be part of it. When completing a residential real estate transaction under these circumstances, an individual needs to understand what the HOA will require.

A prospective buyer should be able to read the covenants, conditions and restrictions of the HOA. Knowing what the dues are and what is included in them is the first step. An individual should know what they will be required to do and what they are not allowed to do in a building or neighborhood. Make sure that the property for purchase is in compliance with the rules. If not, it may need to be brought into compliance before it is purchased or soon thereafter.

A special type of trust for a loved one with special needs

Through a thoughtful and complete estate plan, you can protect your loved ones in the future, providing peace of mind for both you and your beneficiaries. What you should include in your estate plan will depend on many factors, including the specific objectives that you have for some of your assets.

One of the ways that you can set aside and protect money for a specific reason is through a trust. If you are a parent of a special needs child, you may find that a special needs trust is one of the best ways that you can provide for his or her needs and ensure that your loved one receives needed care, even long after you are gone.

Guardianship: When a loved one needs help

If someone you love is slipping away, you may be forced to make some difficult decisions. Whether it is because of aging, illness, an accident or addiction, it is never easy to watch a family member lose the ability to care for him or herself. However, to ensure for the security and well-being of your loved one, you may decide to step in and take responsibility.

Beyond cooking and cleaning for your family member, handling certain matters requires that you file for guardianship. If you are successful in being appointed as a guardian over your loved one, you may wonder what that means.

Elder law topics: Vulnerability to fraud

It seems as though there is always someone out there trying to get something for nothing. These people tend to prey on vulnerable members of the population here and around the country. Those here in Delaware who work in elder law see far too many residents who believe that an elderly loved one could fall victim -- or already has fallen victim --  to financial exploitation.

Understanding what financial exploitation entails may help Delaware residents protect their aging loved ones from becoming vulnerable to fraud. Anyone who uses illegal or improper means to gain a financial advantage at the expense of your loved one commits financial exploitation. Examples of this reprehensible activity include a heavy dose of manipulation.

Estate planning is more than just divvying up your stuff

After spending a lifetime caring and providing for family members, many Delaware residents make arrangements to provide for them after death as well. Unfortunately, those residents might forget that estate planning is about more than just dividing assets. It also includes making provisions in the event that they become unable to care for themselves at some point later in life.

The sooner Delaware residents begin to plan for their retirement and potential need for long-term care, the better. Many recommend beginning to do so no later than in one's 50s. This may provide enough time to accumulate enough assets to pay for care. Since people are living longer now than ever before, preparing for the need for assisted living or nursing home care is essential.

Structuring estate planning to help your executor

Delaware residents may take steps to get their affairs in order and provide for their families after their deaths. When they do so, they may want to consider structuring their estate planning in a way that makes the job of their executor easier. Not only does this relieve some of the pressure on the executor, but it could also hasten the probate process by reducing or eliminating the potential for unnecessary delays.

A well-crafted estate plan could allow an individual's estate to go through Delaware's informal probate process. This could include filing the necessary paperwork to validate the will and confirm the role of the executor. Thereafter, the decedent's debts are paid, and the property of the estate could be distributed with the court's approval within a reasonable amount of time.

What estate planning documents should every adult have?

Whether a Delaware resident is 18 or 80, making arrangements for death or incapacitation is crucial. It is not only older people or those with families who benefit from estate planning. No one knows what will happen in the future, and news headlines filled with young people who lost their lives or suffered critical injuries can attest to that fact.

Every adult should have five documents at a minimum. The first is, of course, a last will and testament. A Delaware resident might not think that he or she has anything worth passing on, but the disposition of any property occurs after a death. If an individual wants to retain the power to give possessions to a specific person or people, a will is necessary. Anyone with a child also needs a will since a guardian can be appointed in it.

Who makes healthcare decisions when you can't?

Planning for the future is a difficult task, especially as it pertains to your healthcare. How can you know what you will need in the years ahead? It is impossible to know what will happen in the future, but taking steps to plan for the future can provide security and peace of mind. 

With a living will and other important documents, you can outline your wishes regarding medical care and other issues in the event that you are unable to speak for yourself. If you have an estate plan, but don't have a living will and haven't named a power of attorney for healthcare, it's a good idea to speak with an estate planning attorney about adding these documents.  

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