What is a Will?
A will is a written document that conveys ownership of specific items that previously belonged to the now deceased people or entities named in the will.
The will generally charges an individual with the responsibility of managing the estate. This person is named the executor of the will and is incredibly important in the asset distribution process. The executor, in addition to managing the estate and paying any leftover debt, may also be tasked with providing funeral instructions and other messages that the now deceased wished to have made public to the named persons and/or entities in the will.
It is fairly common for an heir to be named the executor of the estate but the title may also be bestowed upon a spouse or close friend. If an executor is not named in the will or if the named executor is deceased or unable or unwilling to serve, an administrator will be appointed by the court.
What is Included in a Will?
A will can include the following items:
- Guardianship rights to minor children
- Rights to bank accounts
- Rights to heirlooms
- Rights to real property
- Rights to personal property like cars, jewelry, collectibles
- Rights to business interests
A will cannot include the following items:
- Funds in a payable-on-death bank account
- Funds in an IRA, 401(k), or retirement plan where a beneficiary was named
- Items held in joint tenancy, tenancy by the entirety or community property with a right of survivorship such as real estate and bank accounts
Who Needs a Will?
It is highly recommended that you have a will in place if:
- You are married
- You have children
- You have a positive net worth
Planning for one's death can be an uncomfortable but necessary step when it comes to outlining asset distribution. Without a will in place, it is very possible that the assets that once belonged to the deceased will not be distributed according to their wishes. This is because they will be considered to have died “intestate” which allows for the assets to be distributed according to state intestacy laws.
When a person dies intestate in Pennsylvania and is survived by a spouse and/or children (who are children of the deceased and the surviving spouse), the surviving spouse receives the first $30,000 of the estate in addition to ½ of the remaining assets.
If the surviving children were children of the deceased but not the surviving spouse, the surviving spouse only receives 1/2 of the estate and does not receive the first $30,000.
If the person who died intestate was not survived by any children but does have a surviving spouse, the spouse received the entire estate.
If the deceased was survived by one or both parents in addition to the spouse, the spouse would be entitled to the first $30,000 from the estate as well as ½ of the remainder.
If the deceased was not survived by a spouse, the order of asset distribution is as follows:
- Sibling children
- Aunts, Uncles and their children and Grandchildren
- The State of Pennsylvania
How is a Will Created?
To be valid, the will must be signed by the person who wished to have it created. This person is called the “testator.” The testator must be at least 18 years of age upon execution and must have been of sound mind of memory while obtaining a clear understanding of the purpose of the Will.
In addition to the testator's signature, the will must also be signed by two witnesses who watched the testator sign the Will. The witnesses must be disinterested in that they must not have been named within the Will as a beneficiary.
Pennsylvania law does not require that a Will is notarized for it to be considered to be valid.
Once the testator and two witnesses sign the Will, the document legally authorizes the testator's wishes to be committed for execution upon their death.
How Does a Will Work in Pennsylvania?
When the testator passes away, the estate that was established within the Will undergoes probate. Probate is the legal process that proves the established Will is valid and should be executed according to its terms.
Once the funeral services are completed and a death certificate has been created, the Will is presented to the Clerk of the Court. The two witnesses, who signed the Will, will be asked to verify its authenticity by way of an affidavit. In addition, the named executor will take an oath to follow the instructions outlined within the Will. From there, the assets contained within the Will should be collected and inventory should be taken, outstanding debts should be paid, and distribution of the assets should be made to the named beneficiaries.
If all beneficiaries are in agreement that they properly received the assets as outlined within the Will, documents can be signed that releases the executor from liability and probate can then be closed.
It is possible that some assets listed within the Will may be able to skip the probate process entirely. Items contained within a Living Trust are permitted to avoid probate as are items held in Joint Ownership by way of right of survivorship.
Contact a Pennsylvania Attorney Today
If you or a family member need help writing a will, contact attorney Joseph D. Lento today.