» Estate Planning
The short answer is whoever the local Pennsylvania Orphans’ Court decides to put in charge of your financial and health care decisions should it be deemed necessary, which may not be the person you would have chosen. Failing to create power of attorney can have many unintended consequences. No one likes to think about if or when there comes a point in life where they could become incapacitated, but a Financial Power of Attorney and Health Care Power of Attorney are crucial documents that should be included in every estate plan.
A Health Care Power of Attorney allows you (the “Principal) to designate one or more individuals (your “Agent(s)”) to make medical decisions on your behalf when you are unable to make them yourself. Please keep in mind that even if you have prepared a Health Care Power of Attorney, you will have complete control to make any medical decisions for yourself as long as you are capable of doing so. The Health Care Power of Attorneys we prepare for most clients will almost always include an advance directive, otherwise known as a “Living Will,” which states your wishes regarding withdrawing life-sustaining treatments when you are permanently unconscious or in an end-stage medical condition.
A Financial Power of Attorney is a vital part of any estate plan that allows you (the “Principal) to designate one or more individuals (your “Agent(s)”) to act on your behalf with regard to financial matters. A Financial Power of Attorney allows you to select the person(s) whom you trust to make financial decisions if you are unable to do so. It is important to note that spouses are NOT automatically each other’s agent under power of attorney. While married couples enjoy certain conveniences, such as being able to access jointly held bank accounts, their authority to act for one another will not extend to real estate matters, life insurance, retirement accounts, or annuities.
Pennsylvania does not allow you to disinherit your spouse entirely without a valid prenuptial or postnuptial agreement. Even if you specifically write your spouse out of the will, Pennsylvania law permits them to inherit and claim their “elective share,” which is no less than one-third of your estate. However, you can disinherit children in Pennsylvania. While there are many reasons to disinherit someone, be careful how you plan to do it. Simply omitting a child from your will is almost always unsuccessful because the courts could deem the omission a mistake or oversight should the disinherited child contest the will. To effectively disinherit your child(ren), you should include a clause in your will that specifically identifies the child(ren) you intend to disinherit, along with a clear statement that you are intentionally disinheriting them.
The short answer is yes. You can put instructions regarding your funeral in your will. However, while you can put your plans for your funeral in your will, it is not something we typically recommend to our clients. The fact is that the funeral typically happens within a week of someone passing away. It is the very first thing a family takes care of. Your family will probably not contact a lawyer or even look at your will until after you’ve been laid to rest. It’s better to create what we call a “Letter of Instruction,” which details your desires for the funeral and can be shared with your family to ensure everyone is on the same sheet of music.
Wills are not set in stone once you sign them. You can make changes or even revoke your will any time before your death as long as you are legally competent to make the change. That said, it is a bad idea to simply start drawing lines through the part(s) of your will that you don’t like and then write your initials next to the marked text. This will almost certainly cause conflict and the strong possibility that someone may initiate a challenge to the validity of your will. Most changes can be made by either having a codicil (formal amendment to a will) or a new will prepared revoking the old will.
A common myth that many believe is that the Commonwealth will get your entire estate if you die without a will. In reality, like every other state and the District of Columbia, Pennsylvania has its own laws that determine who inherits a person’s property when that person dies with no will or trust in place. These intestate succession laws are government-formulated and directed estate plans. This may be just as frightening as the thought of the government getting everything since the law may require the distribution of assets to individuals you would not otherwise desire to have them. The answer to questions can be complicated and ultimately hinges on which family members or relatives survived the decedent.
A will, also known as a Last Will and Testament, is a legal document in which an individual outlines their wishes regarding distributing their assets, paying debts, caring for any minor children, and handling other issues after they die. A will only controls probate assets, consequently having no control over jointly held assets or assets with beneficiary designations.
None of us know what the future holds; nevertheless, you can and should make a plan to deal with the many turns life has in store for you, both expected and unexpected. Effective estate plans prevent conflicts among your family members and give you peace of mind for the unknown. Most importantly, you should prepare an estate plan because it puts you in control.
The reality is that nearly everyone has an estate. Notably, cars, houses, bank accounts, life insurance, as well as investments – no matter how large or modest – are all part of your estate. However, estate planning extends beyond your possessions: it is the process of strategizing and preparing for disability, disease, and death. Some people believe that having a will is sufficient, but a will by itself is only part of the whole estate planning picture. At the very least, every estate plan should include a will or trust, a financial power of attorney, and a health care power of attorney that contains instructions for end-of-life treatment (commonly referred to as a “Living Will”).