Here are the answers to some questions that clients frequently ask me about wills and estate planning. These FAQs are provided for general information only and are not intended to be relied upon as legal advice. For a consultation, please contact us.
Estate Planning is the process of anticipating and organizing how one’s affairs will be handled in the latter years of life, and after death. The goal of estate planning is different for everyone. As a general matter, clients seek to:
Every estate plan should have at least three documents: a will (and/or trust), a durable power of attorney, and a healthcare power of attorney (including a Living Will, sometimes called a Dying Declaration). Some complex estates may require additional planning, but these documents are the bedrock of a solid estate plan.
As a rule, you should review your estate plan with your attorney at least once per year. Why? Because your particular circumstances may have changed since you created your Will, Trust, or Powers of Attorney. At a minimum, you should have your estate planning documents reviewed when any of the following occur:
Many clients are hesitant, understandably, to deal with the prospect of their own death. Further, many clients believe that because they do not have a large estate, they do not need to plan for their demise. However, in Pennsylvania, there are several reasons why it is very important to meet with an attorney and prepare a will while you are still healthy and cognizant enough to legally do so.
First. if you pass away without a will, you will be considered to have died “intestate”, and your Pennsylvania assets will be distributed among your family members according to state law. State law requires that your assets be distributed to your spouse, children, parents, siblings, aunts, uncles, etc. depending on which relatives are still living at the time of your death. While you may want some or all of your assets to be inherited by certain family members, creating a will allows you to decide who will get your hard earned money and property when you are gone.
Another good reason to create a will is that you will be able to designate the person who will administer your estate. This person is called the executor. Often, you will also choose an alternate person to serve as executor if the primary executor is unable or unwilling to serve. Without a will, your family will have to decide who will be responsible for distributing property to the beneficiaries. This decision is a major source of family squabbles. By creating a will, you can do your family a priceless favor by taking this decision out of your their hands, and you will have peace of mind knowing that a responsible person of your choosing is handling your affairs.
Lastly, creating a will can help avoid death taxes. Particularly, if your estate (joint estate for couples), is valued at close to or over one million dollars, professional estate planning may help you save thousands of dollars in Federal Estate Tax.
An executor is the person who is appointed to administer the estate of a deceased person (or “decedent”). The executor is responsible for identifying and safeguarding the decedent’s assets, paying off the debts of the estate, and distributing the estate assets to the beneficiaries in the manner provided for in the decedent’s will. You should choose as the executor of the estate a person that you trust and who is conscientious enough to see that your affairs are wrapped up efficiently. Often this will be a spouse, child, other relative, or trusted friend. You should also consider choosing an alternate executor, in the event that the primary executor is unable to complete their duties.
If you die without a will in Pennsylvania, you will lose the ability to control who inherits your property. Many people believe that if they die without a will in Pennsylvania, all of their property will go to the Commonwealth. This is almost never the case. Other people are under the misconception that all of their property will automatically pass to their spouse or their children. This is not necessarily true. Under the law of “Intestate Succession,” the property of an estate could be transferred to a spouse, children, parents, grandchildren, grandparents, aunts or uncles. The only way to ensure your property is distributed to the loved ones of your choosing is to create a will. Please contact us for a consultation today.
A Durable Power of Attorney is a document which gives a trusted person (called an “attorney in fact”) the power to handle your property and finances in the event that you become incapacitated. A Durable Power of Attorney is an integral part of an estate plan because your attorney in fact will safeguard and manage your property so that it can be effectively used to ease the final years of your life, and ensure that as much property as possible is preserved for your estate, so that it can pass to your loved ones in the form of inheritance.
A Healthcare Power of Attorney is a document which appoints a trusted person (agent) to make decisions regarding your healthcare if you are unable to do so yourself. If you are unable to communicate your wishes, due to unconsciousness or any other reason, your agent will have the power to make decisions about what type of care you receive, including the hiring and firing of doctors and nurses, choosing medications, electing surgeries, and other healthcare-related decisions. Without a valid Healthcare Power of Attorney, decisions regarding your care could lead to confusion and squabbling among family members, and may cause delays or uncertainty at a time when you are most in need of effective treatment.
A Living Will is a separate document from an ordinary will, and it is sometimes called a “Dying Declaration.” The purpose of a Living Will is to direct your doctors and other health care providers in the event that you become so gravely ill or injured that you have no hope of retaining consciousness. Most clients prefer to have a Living Will which directs doctors and nurses to provide hydration and pain medication to maintain comfort, but to withhold life sustaining measures, such as feeding tubes and respirators. A Living Will must comply with Pennsylvania law, and you should contact an attorney to discuss implementing one.