The Last Will and Testament is probably the most familiar of the estate planning documents. The most important function of the Will is to direct the distribution of a person’s assets upon their death. In addition, the Will identifies an executor to manage the estate after the death of the testator (the person making the Will).
Living Wills only go into effect if you are no longer able to make your own healthcare decisions.
For example, if you suffer serious brain damage in a car accident or suffer an incapacitating stroke, you may be permanently unconscious and unable to communicate with your doctor. In this case, a Living Will lets your physician and family know your wishes concerning certain medical procedures.
The Will can do many other things as well, including establishing trusts for minors, directing gifts to charities, providing instructions for burial, directing the payment of expenses and taxes, establishing trusts for tax planning or to hold assets for minors or disabled beneficiaries. Critical to parents with minor children is that the Will allows a parent to identify a guardian of the person of their minor children (the person who raises their children) and a guardian of the estate of their minor children (the person who oversees their finances). The Last Will and Testament is the essential document in the estate planning process, but other documents are equally important and in some circumstances, documents such as the Durable Power of Attorney may ultimately be more important in the estate planning process.
What is a Will?
A Will is a written document which directs how property which is titled in your name at the time of your death is distributed to beneficiaries (individuals or charities). A Will also allows you to direct how other matters are to be addressed at your death. For example, an individual can select guardians for their children or provide burial instructions. A Will is your best chance to permit an orderly transition of your affairs after your death.
What happens if I die Without a Will?
If you die without a Will (called “dying intestate”) your property (called your “probate estate”) will be distributed in accordance with Pennsylvania law. Each state writes their “intestate laws” differently, but you can be sure that the state did not write the intestate law the way that you would have written your Will. For example, in Pennsylvania if you die with a spouse and children, the spouse gets the first $30,000 and then your assets are divided between your spouse and children. Writing a Will is the best way to ensure that your family will be taken care of as you would have directed.
What are the formal Requirements for a Will?
A Will must be in writing and the person must be eighteen years or older who is “of sound mind” and not under duress or under someone else’s “undue influence.” A Will may be hand-written by an individual (a holographic Will), but when an attorney drafts a Will it adheres to a more formal format including two witnesses, a notary as well as a second “signature” page (again signed by the person making the Will as well as the two witnesses) which makes it easier to admit to probate (called a “self-proving Will”) (see below for a definition of probate).
What is a Codicil?
A Codicil is an amendment to a Will which can add, delete or change a Will’s provisions. The formal requirements for a codicil match the formal requirements for a Will.
Do all my assets transfer through my Will?
No. This concept is critical to a good estate plan. Assets generally pass one of three ways: (1) through the Will (or probate estate); (2) by beneficiary designation (e.g., life insurance policy or TOD/POD/ITF designation); or (3) joint ownership. Beneficiary designations or joint ownership “trump” a Will and if an asset has a beneficiary or a joint owner, the asset never “goes into the Will” or estate.
Am I required to leave my assets to my spouse or children?
No. You can leave your property to whomever you chose to leave your property. However, Pennsylvania does not allow you to totally disinherit your spouse (see “election against a Will” below).
If my spouse did not leave me any assets, do I have any recourse?
In Pennsylvania, the law does not permit you to disinherit your spouse. If your spouse did not leave any assets for you, you are permitted to “elect against” a Will and receive up to 1/3 of your spouse’s estate (as that term is defined in the statute).
Can I give all of my estate to a charity church or school?
Yes. You have the ability to distribute assets to any entity of your choosing.