Many people think the term “estate planning” applies only to very wealthy people. However, nothing further is from the truth. An “estate” is simply what you own. If you own property, or even if you do not now but you might in the future, through inheritance, or other means, you need to plan ahead in order to make sure the desired people or charities inherit your property.
Nuances of Estate Planning and Estate Administration may vary by county. The Law Offices of Michelle C. Berk, P.C. is well versed in Estate Planning and Estate Administration for Montgomery County and Philadelphia County, as well as the surrounding counties in Pennsylvania, including but not limited to Bucks County, Delaware County, Chester County, and beyond. Having a lawyer review an Agreement of Sale and consulting with them can prevent many costly mistakes in the future. We can help before you get to the settlement table and should be contacted as soon as a transaction is contemplated.
Deeds should be prepared by a lawyer, as should other conveyancing documents. Before you consider making any changes to the title of real estate you should consult with a lawyer to explore all the options and results that may occur.
A Will is an important legal document and the cornerstone of most estate plans. In a Will, you direct how your property is to be distributed and you also name an Executor, or personal representative, to administer your estate. An Executor collects the estate assets, pays the estate debts and makes distributions to the beneficiaries you have designated in your Will.
Many people think the term “estate planning” applies only to very wealthy people. Nothing is further from the truth. An “estate” is simply what you own. If you own property, you need to plan ahead in order to make sure the desired people or charities inherit your property after your death.
If you die without planning your estate, your home, money and other property will be distributed to various relatives, sometimes distant relatives, according to a rigid formula fixed by law known as “intestacy law.” This law applies to every person who dies without a Will and does not consider special needs of any individual or family. Without a Will, your property may be inherited by people you do not want to share in your estate.
Without a Will, individuals in control of your estate may not be the people you prefer and they may not even cooperate with each other. If you die without a Will, the Commonwealth of Pennsylvania essentially makes a Will for you, according to the terms of the intestate law, which controls the distribution of the shares of your estate. The existence of a well-considered estate plan, most importantly a Will, can help avoid disputes among your heirs and will give you the peace of mind that comes with knowing that your final wishes will be carried out.
It is generally advisable to designate one Executor and an alternate in your Will rather than naming two individuals to serve together as Co-Executors. This is due to the fact that Co-Executors may have difficulty agreeing on decisions or getting paperwork signed in a timely manner. However, some parents feel strongly that their children should work together and name them to act jointly.
A good rule-of-thumb is to review your Will at least once every five years and be sure to update your Will if circumstances have changed. For example, marriage, death, divorce, birth, asset growth, moving to a different place, state, engaging in Elder Law Planning, or a change in tax laws are events that may trigger the need for you to revise your Will.
Keep your original Will in a secure place, such as a fire-proof safe in your home.
If you have not retained your original Will, you have the right to request your original estate planning documents from your attorney at any time. The documents belong to you, not your lawyer. You also have the right to revoke your Will and write a new one at any time you choose, providing you have the mental capacity to do so.
Power of Attorney
A Power of Attorney (POA) is a document that allows another person to act on behalf of the individual. The individual creating the document is called the Principal and the person carrying out the wishes of the Principal is called the Agent. In your Power of Attorney document you should specify the financial duties and responsibilities you want your Agent to be able to conduct in order for them to be authorized to do so. The Power of Attorney law enacted in 2015 requires many powers to be set forth in it with specificity.
The present law on POA’s is found in Chapter 56 of the Probate, Estates and Fiduciaries Code (The PEF Code), Title 20. Since 1999, each POA dealing with financial matters for individuals must have a notice provision and an acknowledgement signed by the Agent. Also, POA’s created since 1993 are presumed valid even after a Principal’s incapacity, unless the document expressly forbids it. This is known as the concept of durability. That is what is meant by a Durable Power of Attorney. The Power of Attorney is so important that it may prevent more costly and invasive legal actions in the future, if one is written now when there is capacity to do so!
Health Care Power of Attorney and Living Wills
A Health Care Power of Attorney is in the Health Care Power of Attorney and Living Will document. This document allows a designated Agent to make health care decisions for their Principal, if the Principal is unable to make them for himself or herself, such as to admit a person to a hospital or nursing home, or authorize surgery. The Health Care Power of Attorney and Living Wills we prepare comply with Pennsylvania statute and Act 169 and incorporate the Living Will into a Health Care Power of Attorney so your wishes are known in the event of disability and also, in the event of serious or permanent illness.
Once again, by planning ahead for the uncertainties of life, you can be protected by having your health care decisions upheld and honored, by simply having our offices prepare a health care Power of Attorney and Living Will. We can also incorporate a HIPAA compliant release into the document so you are covered in any event.
There are different types of trusts, such as: Special Needs Trusts, Credit Shelter Trusts, and Discretionary Trusts. Trusts usually cost more money to create because they are more complicated and should be customized for each particular situation.
Your attorney might recommend a Trust in larger estates, estates with young beneficiaries and in situations with special circumstances such as for disabled individuals. In addition to the costs of drafting a trust, there are often continuing attorney’s fees and trustees’ commission over the years, as a trust is administered. You need to consider the ongoing administrative costs as you decide whether it makes sense to create a trust.
Special Needs Planning in a Will and/or Trust
Providing for the special needs of your loved ones is an integral part of Estate Planning that must always be considered.
We can draft an appropriate Will and/or Trust to protect the special needs of your beneficiaries.
Estate Administration & Probate
Probate is simply the orderly process the Register of Wills maintains in each county upon the death of an individual. Probate is the Administration of Estates.
How do you avoid Probate in Pennsylvania?
Probate is not always necessary or required, for example in the case of spouses where all assets are jointly owned, so an attorney should always be consulted in the unfortunate event of the death of a loved one. There are important requirements of probate and timelines to be followed so we can help you minimize taxes with or without probate.