Estate Law FAQs... (Wills, Powers of Attorney, Living Wills, Durable Powers of Attorney for Healthcare, and Probate)
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1. What happens if I die without a will?
If you dieintestate (without a will), who receives your property will be determined by Pennsylvania state law.Typically the distribution would be to your spouse and children, or if you have no spouse or children, then to other family members. While the state's plan may reflect the legislature's guess as to how you might want to dispose of your property, it may not reflect your actual wishes.Accordingly, it is essential for you to prepare a legally enforceable will which allows you to alter the state's plan to reflect your own personal preferences. 2. What does a will do?
A will provides for the distribution of property owned by you at the time of your death in any manner you choose (subject to certain laws designed to protect spouses from total disinheritance). Your will not, however, govern how certain properties are passed.For example, certain joint properties, life insurance, retirement plans and employee death benefits are usually passed to the beneficiary named on that plan or policy.
Wills can be of various degrees of complexity, from "simple wills" that essentially allow you to name a single beneficiary to receive your entire estate, to more complex wills designed to achieve a wide range of family and tax objectives.
In addition to naming the beneficiaries of your estate, wills frequently are used to designate a guardian for your minor children, designate an executor to oversee the distribution of your assets, and establish trusts for the benefit of your children, elderly parents, disabled relatives and the like.Similarly, wills may be used to provide assets to support religious, educational, and other charitable causes. 3. What does a will NOT do?
A will does not govern the transfer of certain types of assets, called non-probate property, which by operation of law or contract pass to someone else on your death.Such assets may include certain joint properties, life insurance, retirement plans, employee death benefits and the like. 4. What does it meant to execute a will?
Simply put, a will is executed by its signing by the testator (the person for whom the will is prepared).Legal execution requires witnesses and formalities to be recognized as valid and enforceable. 5. What is a codicil?
A codicil is simply an amendment to a will - it is prepared to modify the provisions of a will without the need to prepare an entirely new will.Like a will, to be enforceable, a codicil must be signed in the presence of witness, and is subject to the same formalities as a will. 6. What is a power of attorney?
An important part of lifetime planning is the power of attorney. While there are several different types of powers of attorneys, each effectively give one or more persons the power to act on your behalf. The power may be limited to a particular activity (e.g., closing the sale of your home) or general in its application, empowering one or more persons to act on your behalf in a variety of situations. It may take effect immediately or only upon the occurrence of a future event (e.g., a determination that you are unable to act for yourself).
7. Why should I havea power of attorney?
There may be several reasons.One may be simple convenience.For example, if you are selling or buying a home and appearing at the closing transaction is inconvenient, you may want to take advantage of a power of attorney to permit another person to act on your behalf.
Another important reason to use powers of attorney is to prepare for situations when you may not be able to act on your own behalf due to absence or incapacity. Such a disability may be temporary (e.g., due to travel, accident, or illness) or it may be permanent.
8. What happens if I do not have a power of attorney?
If you do not have a power of attorney and become unable to manage your personal or business affairs, it may become necessary for a court to appoint one or more people to act for you.Under these circumstances, you may have no say as to who is appointed to act on your behalf.With a properly prepared power of attorney, you have the opportunity to choose who will act on your behalf should such time become necessary, and define his or her limits of authority. 9. What is a living will?
A living will, or an advanced health care directive, is a document whereby you communicate how you want to be treated in certain medical conditions.A living will may be used to express whether or not you wish to be given life-sustaining treatments (i.e., treatments that merely extend your life, but do not cure your condition) in the event you are terminally ill or injured, to decide in advance whether you wish to be provided food and water via intravenous devices ("tube feeding"), and to give other medical directions that may impact the end of life.
Living wills generally apply just to situations where the use of treatments may prolong your life for only a limited period of time and where not obtaining such treatment would result in your death.Living wills pertain only to those treatments (including artificial feeding if specified) aimed at prolonging your life - their use does not restrict the use of pain medications and other treatments that would relieve pain or otherwise make you more comfortable.Similarly, living wills do not determine your medical treatment in situations that do not affect your continued life, such as routine medical treatment and non life-threatening medical conditions.
Most importantly, a living will never denies an individual the ability to make his or her own medical decisions concerning his or her own health care.That is, as long as a person is able to do so, he or she may self-direct his or her own medical treatments (in consultation, of course, with treating physicians). A living will, however, is utilized to assure that an individual's health care directives are communicated in the event he or she is in the unfortunate position of no longer being unable to communicate his or her wishes, such as being permanently unconscious, brain damaged, or experiencing severe dementia.
Without such directives, your family may find it necessary to obtain court orders to deal with your medical situation. 10. What is a durable power of attorney for health care? A durable power of attorney for health care, sometimes referred to as a health care proxy or a health care surrogate, is the appointment of a person to whom you grant authority to make medical decisions in the event you are unable to express your preferences. Most commonly, this situation occurs either because you are unconscious or because your mental state is such that you do not have the legal capacity to make your own decisions.
The durable power of attorney for health care differs from a living will in several ways.First, while a living will is a document used to express your preferences, in essence permitting you to make certain end-of-life health care decisions while you are still able to do so, the durable power of attorney defers those decisions to someone you appoint to act on your behalf.Second, while a living will is only activated in situations involving treatments aimed at prolonging life, the durable power of attorney for health care appoints someone to act on your behalf in making medical decisions whenever you are unable to do so, whether treatment is aimed only at prolonging life, or aimed at treating the illness or injury. 11. What is Probate?
Probate is simply the process by which, following your death, your assets are gathered, applied to pay debts, taxes and expenses of administering your estate, and distributed to your heirs.Probate is also the process by which titled property, such as real estate, automobiles and the like are re-titled to your beneficiaries.
In Pennsylvania, the probate process is formally supervised by courts, generally through the local county's Register of Wills.The direct responsibilities of probating a will, however, fall on the executor or personal representative - that is, the person named in the will to be responsible for the administration of the provisions of the will.
While the term probate is typically applied to the process of probating wills, the process is essentially the same for the assets of someone who dies intestate - that is, without a will.In those cases the court will appoint an administrator to supervise the administration of the estate consistent with Pennsylvania's laws of intestacy.