Frequently Asked Questions
(The following information applies in the state of Pennsylvania only.)
If you die without a Will you are “Intestate” and your assets pass in accordance with rules set up by the Commonwealth. A common misunderstanding is that if you die without a Will your assets may end up passing to the Commonwealth. This is possible, but only if you have no living relatives. The Commonwealth has set up rules to divide the assets of intestate estates, but often these rules do not give assets to the people that the deceased person would have had they put his or her wishes in a Will. The intestate rules are set out in Chapter 21 of the PEF Code.
Most people assume that if they die without a Will all their assets pass automatically to their surviving spouse, this is not necessarily true!
The surviving spouse receives everything only if the intestate deceased had no surviving issue (children, grandchildren, etc.) or parents.
If there is a surviving spouse and issue, and the issue is issue of both the surviving spouse and the deceased, the surviving spouse gets the first $30,000.00 and one-half of the remaining assets. The other one-half of the assets are divided between issue.
If there is a surviving spouse and surviving issue, but at least one of the issue is not the issue of the surviving spouse (e.g., a child from the deceased’s previous marriage), then the intestate estate is divided one-half too the surviving spouse and one-half to issue.
If there is a surviving spouse, no surviving issue, but the deceased’s mother or father survives the intestate decedent, the surviving spouse gets the first $30,000.00 plus one-half the balance while the surviving parents divide the remaining one-half share.
If there is no surviving spouse, then the entire intestate estate passes to surviving issue. If there is no surviving issue, then the deceased’s parents divide the entire estate. If there is no surviving spouse, no surviving issue and no surviving parents then the assets are divided between the issues of the parents (typically the deceased’s siblings or if they have died, the nieces and nephews).
If there is no surviving spouse, issue or surviving issue of parents, but at least one grandparent survives the decedent, then one-half to the paternal grandparents or grandparent, or if both are dead, to the children of each of them and the children of the deceased children of each of them, and one-half to the maternal grandparents or grandparent, or if both are dead to the children of each of them and the children of the deceased children of each of them. If both of the paternal grandparents or both of the maternal grandparents are dead leaving no child or grandchild to survive the decedent, the one-half which would have passed to them or to their children and grandchildren shall be added to the one-half passing to the grandparents or grandparent or to their children and grandchildren on the other side.
If no grandparent survives the decedent, then to the uncles and aunts and the children and grandchildren of deceased uncles and aunts of the decedent as provided by the Code.
If the deceased is survived by none of these people, then, and only then, does the intestate estate pass to the Commonwealth.
In Pennsylvania you must be at least 18 years of age and of sound mind to make a will. Your will must be in writing and signed at the end by the testator. If the testator is unable to sign his or her will, someone else may sign the will for the testator so long as this is done in the testator’s presence and at his or her direction.
In Pennsylvania it is not necessary for the signing of your will to be witnessed by anyone; however it is customary to have at least two people witness the signing of your will.
Pennsylvania does accept self-proved wills. Such a will includes a separate page which is notarized and signed by the testator and witnesses. The purpose is to ensure that upon the death of the testator, the will be accepted as signed and the witnesses to the will will not need to be found.
A codicil is an amendment or addition to a will that you have already executed. A codicil may be as simple as changing or adding a name or a number, or it can be as complex as rewriting or adding whole new sections to your existing will. A codicil to your will becomes part of your will and will be read together with your will to figure out what you want done with your assets at your death.
A codicil must be executed in the same manner as required by you states as for a will. Generally this means that that you will need two witnesses and perhaps a notary to have your codicil be accepted.
Probate is the process of filing the will with the Commonwealth of Pennsylvania and having the state recognize the executor of your estate. If you die without a will, probate will have the state recognize an administrator to handle your estate. Probate for people residing Pennsylvania at their death occurs with the Register of Wills office in the county where the person had their last principal residence. If the person who dies is not a resident of Pennsylvania, their will may still be probated in Pennsylvania with the Register of Wills in any county where the deceased held real estate.
All wills must be proved by two witnesses before the will will be admitted into probate. For this reason, it is best to have your will witnessed and include a self-proving page upon execution.
In Pennsylvania you can revive an old will by revoking your new will in writing and stating in writing that you intend to revive your old will. You will not revive our old will simply by destroying your new one.
In Pennsylvania, if you marry after you execute your will, your new spouse will be entitled to whatever they would have been entitled to if you were to have died without a will (See: “What if I die without a will?” above). This is true unless your will provides your new spouse with a greater share of your estate, or it appears clear that you executed your will knowing you were getting married and you intentionally omitted your new spouse.
If you divorce after you have executed your will all portions of your will that make mention of or give anything to your ex-spouse are revoked automatically.
If you have or adopt a child after you execute your will that new child will take the portion of your estate, after your surviving spouse, that they would have been entitled to if you had died without a will (See: “What if I die without a will?” above).
Yes, in Pennsylvania a handwritten will, otherwise known as a “holographic will” is recognized as a valid will, however such a will should still be signed and witnessed in the same manner as any other will as explained above. (See: “What are the legal requirements for a valid will in Pennsylvania?”)
In Pennsylvania you do not have to file you will with anyone after you have signed it.
Depending on who it is you wish to disinherit, the answer will vary. In Pennsylvania, as in other states, there is absolutely no requirement that you have to leave anything to your children. You may disinherit any or all of your children as you desire.
In Pennsylvania, unless you have a valid post or prenuptial agreement, your spouse will have a right to a portion of your estate even if you have intentionally excluded them from your will. In Pennsylvania, your spouse will be entitled to ?elect? against your estate and collect an elective share of 1/3 of your total estate regardless of whether or not you have a valid existing will.
After you sign your will, you should keep it in a safe place that is easily accessible. Out clients will often store their original documents in our fireproof files where they cannot be easily destroyed or stolen. Be sure that the person you have appointed as your personal representative knows where you have placed your will. If you store your documents in our fireproof files, your personal representative need only prove that you have died for the documents to be released to them.
Many people keep their wills and other important documents in their safe deposit boxes. Though these documents may be safe from fire and theft in a safe deposit box, your personal representative may have a difficult time accessing these documents when they are needed. Because of the delays and complications that can arise with the use of safe deposit boxes for this purpose, it is not recommended that these be used for the safekeeping of documents such as these.
Your bank is an excellent place to locate not only a notary, but also witnesses for your documents.
As long as a Will has satisfied all the requirements set forth by the state in which your live or the state in which you sign the Will, the Will is valid. No state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you regularly work as an Estate Planning Attorney you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.
No. Jointly Held assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Your Lawyer should work with you to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.
Yes, if done properly. This is a rather complex area of the law and the terms in your Will must be exact. But, if done properly a Special Needs Trust can be created to care for a Special Needs Person while keeping the Person on their existing government programs.
Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that your plans are in your Will and are known to key people who will be contacted at your death.
Will reviews are situational, but as a general rule you should review Will terms annually. At our firm we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.
The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. This is a very complex area of the law and you should work closely with your Estate Planning Lawyer.
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