Throughout a person's lifetime, they experience a great many things. Starting a job, moving out, beginning a family, and buying a home are all things that seem natural for one's progression through life. However, these things must also be protected in the event of a person's passing. Estate planning gives a person the power to draft documents and create plans for how their assets and wealth will be distributed should anything happen. This can be a complex process, and sometimes stressful, as it deals with a particularly frightening subject: death. Many people choose to start estate planning immediately after acquiring a home, or having children. Having at least some form of a will can save a person's family a lot of time, money, and trouble in the event of their passing.
Wills & Living Wills
A will is a legal document that certifies and guarantees a person's wealth distribution after their passing. Having a will can significantly speed up the process of distributing a person's assets. For a person's will to have legal significance, it need only be signed by the testator, and two witnesses. However, having a will signed by two witnesses does not automatically guarantee that it will be recognized by the court immediately. Although a will is a legal document, one can technically be drafted without an attorney or a notary, however, this may lead to some difficulty, as the will is not technically "self-proving." For a will to be "self-proving" is must be notarized. On top of this, even if a person's will is drafted and signed, some of the contents of a person's property may not be theirs, which can lead to a contested will. A contested will must be argued in court or worked out through a settlement.
The name of this document creates a common misconception that it is similar to a person's will. A living will works much differently than a standard will. Although the two are similar in name, a living will does not handle the same content as a will. Instead, a living will deals with decision making should a person become unable to make important medical decisions for themselves.
A trust is an agreement where one person, the trustee, is the legal title owner of property intended to be transferred to another, the beneficiary. A "living trust" is a trust created while a person is alive, rather than one created at a person's passing. Creating a living trust is a way to specify that certain property is transferred upon a person's death that can be managed multiple times. A person's final will is also necessary, but a trust can be constantly worked on and used to ensure any property will be sent to another person's possession. The trust is meant to be edited and worked upon throughout the trustee's life, whereas a will is meant to be a final , cover-all document for property that may not have made it into a trust. While a trust is a simple enough idea, the process almost always necessitates a lawyer.
Probate is essentially the process of distributing a person's wealth and property after death. Probate is a lengthy, stressful and unforgiving process, however, it can be simplified through the actions of a person during their lifetime, such as setting up trusts or ensuring that their final will is self-proving and does not have any contested property. The probate process can be expensive and difficult for families who only want to see that their loved one's affairs are resolved.
In Pennsylvania, estates with less than $50,000 in assets can be resolved through a simplified probate process. For these cases, the loved ones need only petition the court for a simplified probate process. The court may even grant the executor of the estate permission to distribute the assets of the deceased, instead of following the court regular probate process.
A formal probate proceeding is much more complex. A will should name an executor of the estate, who should be the one to file the will within the Register of Wills in the county where the deceased person lived. The next step is for the executor to get a hold of assets and get permission from the court to begin acting on behalf of the estate. If the will was not notarized, and not "self-proving," the court will have to contact the witnesses that signed the will. Contrarily, if there is no valid will at all, the court must go through its own process for distributing the remaining assets. If the will is valid, and the witnesses have been contacted or the will is self-proving, then the next step in the process is to work through the process of paying out inheritance taxes and federal estate taxes as they are necessary. Once this has been accomplished, the executor and the attorney can break down the estate, including assets, real estate, accounts, and debts. This process is almost always lengthy, time-consuming, expensive, and oftentimes unpleasant.
Estate planning is a delicate process that requires dedication and forward-thinking. While the actual process of enacting a will seldom requires the aid of an attorney, planning, preparing, and writing one's will should be done in strict and legal terms. This will often necessitate the expertise of a lawyer. A probate or a Family Law attorney can handle the drafting of a will and the assurance that you family's future will be secured by your assets and wealth.
Contact a Pennsylvania Estate Planning Attorney
If you or a loved one is involved in estate planning or other matters of Family Law, contact attorney Joseph D. Lento today.