Codicils

Every time that you create a will, you revoke all prior wills previously made. However, sometimes you wish to amend the will while keeping the majority of the terms the same. For these situations, it is best to create a codicil.

A codicil is an amendment to a will. The document can add or delete provisions of your mst recent will. You may also make revisions, such as changing the name of an executor or giving a specific bequest to an heir. When you pass away, your codicil is filed with the Last Will and Testament for probate.

However, if the change is significant, I would recommend preparing a new will.

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Living Will

A living will, also called an advanced directive, is a legal document which details your wishes regarding medical treatment when you are in a terminal condition or in a state of permanent unconsciousness, including persistent vegetative state or irreversible coma. A living will gives you the right to determine which treatments, such as cardiac resuscitation and antibiotics, and you choose to accept or decline them.

A living will also gives a you the power to designate a surrogate to make medical decisions on your behalf.

If you create a living will, make sure that you give a copy to your doctors. It is also best to express your wishes to your family members.

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Life estates

When you pass away leaving real property (i.e. house), the property is sold or goes to your heirs, either under a will or through intestacy. Typically, the heirs have the right to do as they wish with the property, such as selling it, keeping it, repairing it, or renting it. Another option is to give someone a life estate.

Under a life estate, that beneficiary has the right to the property for the rest of their life, and then the property reverts to a remainderman. The beneficiary is still responsible for maintaining the property and paying the expenses such as mortgages, taxes, and utilities. While the beneficiary is alive, he can reside in the property or rent it out. He can make improvements on the property or keep it as is. Typically, if he rents it out, the beneficiary gets to keep the rental income. However, when the beneficiary passes away, the property does not go to his or her heirs, rather is goes to the heirs of the original owner.

There are several advantages to a life estate. For example, if you leave a beneficiary a life estate, you know that they will get to stay in the property for their life, and you still get to dictate who gets the property upon his passing. Additionally, there may be a savings on the inheritance tax, depending on who inherits.

One down side is that neither the beneficiary nor the remainderman has the right to sell the property on his own during the beneficiary’ lifetime. The beneficiary cannot sell the property because the remainderman has ownership upon the beneficiary’s passing, and the remainderman cannot sell as the beneficiary has the right to stay during his life. Both parties must agree to sell together.

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What is a Power of Attorney

A power of attorney is a legal document wherein you give another person the right to act on your behalf. It is a very powerful document, in that your agent can act as you. For example, once in effect, the agent may be able to access your bank accounts, pay bills, transfer real estate, make gifts on your behalf, and conduct your business and affairs. While the agent has a fiduciary duty to make sure that he is acting on your behalf, you need to choose an agent (or two) who you strongly trust.

A power of attorney may be in effect immediately, or it may be a springing power of attorney, meaning that it is only in effect when you are incompetent and unable to make decisions on your own. Most powers of attorney are durable instruments, in that they do not terminate upon incapacity.

If you wish to revoke a power of attorney, you must notify your agent in writing. Otherwise, the power of attorney remains in effect until you pass away.

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Consequences of Custody Contempt

23 Pa. C.S. 5323 (f) provides that any custody order should have sufficient detail to enable the parties to understand what they are obligated to do and for law enforcement authorities to be able to assist in enforcement where appropriate. Section (g) discusses the consequences for violation of an established custody order. “A party who willfully fails to comply with any custody order may be adjudged in contempt. Contempt shall be punishable by any one or more of the following: (i) imprisonment for a period not more than six months; (ii) a fine of not more than $500; (iii) probation for a period of not more than six months; (iv) an order for nonrenewal, suspension or denial of operating privilege; and/or (iv) counsel fees.” 23 PA. C.S. 5323 (g).

As the statute is worded, every technical violation of a custody order should not be punished as contempt. Instead, the statute refers to parties who willfully fail to comply. This would suggest a showing of bad faith on the part of the non-compliant party. There are last minute changes or emergencies that occur in life which could disrupt a custody schedule. Infrequent instances would not be grounds for the punishment contemplated by the statute. However, parties who frequently and repeatedly disobey the court order may face some of the sanctions provided. Counsel fees are a popular sanction where the parties are represented with imprisonment being the most extreme sanction for a custody matter.

Click here to read more on custody.

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Dividing Personal Property in Divorce

Personal Property in a divorce includes the tangible items that you own, such as the furniture, the houseware, the televisions, the paintings, and other items in your home. When parties separate, one of the parties normally leaves the home and takes items with them. What is taken can often lead to a dispute. It is important to keep things in perspective. The court will normally assign garage sale value to the items which means you are not likely to get a huge credit if you walk away from the entire contents of the home. Some parties unrealistically expect a credit of $ 20,000 for all the contents of the home since they left with very little. This is not likely to happen. What the Court normally does is have the parties list out the items in dispute and if you cannot agree alternate on picking items from the list. If you do have valuables that have a higher value, such as artwork or guns, these things can be separated if you have an appraisal. You should have your certified appraisal before you go to court in order to obtain the highest value for this item. While you may be attached to certain items of sentimental value, it is important to weigh the cost of the item against the cost of fighting over the item. Most personal property issues resolve by agreement. When they do not, most get sent to arbitration to resolve unless the items are appraised. When you leave the house, it is best to take the items that you want to have when the divorce is finalized as it can often take years before these issues will even get heard by the Court.

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Danger of the $ 299 Divorce

Oftentimes a person getting a divorce may see ads for a low cost divorce for $ 299. What the ad does not tell you is that this is for a divorce in which there are no issues, no assets, and it likely does not include a filing fee. You also have to do much of the work yourself. Every county in Pennsylvania has their own filing fee. Normally, you file in the county where you resided together when you separated. If you do not have assets, however, you can agree to file in a county in Pennsylvania where the filing fee is cheaper. Some counties have filing fees that start over $ 300 and do not include any of the legal fees. If you do not have any issues, agree to the county that is cheapest, and are prepared to do much of the paperwork yourself, this may be ideal. The danger is that you will not raise issues that should have been raised such as distribution of assets or alimony that you cannot raise after the decree in divorce is granted. If you are going to go this route, it would be wise to at least consult an attorney for a free consultation prior to finalizing your divorce.

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No jury trials for custody or divorce cases

Many people who are going through a divorce or custody case are unfamiliar with the court system and what to expect unless they have had friends or family who already went through the process. In most family law cases, there are several levels of proceedings. In Pennsylvania, custody, support and divorce issues are usually heard separately and all usually involve a lower level proceeding before a trial. One thing you do not see in family law cases is a trial by a jury. If you go to court for divorce, or custody or support, and you do not resolve your case at the lower level proceedings, you will have what is called a bench trial. This is very similar to the trials you see on television, as you will have witnesses testify under oath on the stand. The same rules of evidence and procedure also apply. As a party you will also testify under oath. Your case, however, will be decided by one person, the Judge. In criminal matters and even in civil cases, you can opt for a bench trial instead of a jury, but in family law cases, you do not have this choice. You will always have a bench trial. One person will decide the outcome of your case.

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Exclusive Possession and Divorce

Sometimes when a divorce is pending, a party may decide that they no longer wish to live in the marital residence. When a party moves out and establishes residence elsewhere, the party who remains in the home may seek and will usually always be granted an order for exclusive possession of the marital residence while the divorce is pending. This means that even if the house is owned in both names of the parties, only the party who is living in the house will be allowed in or on the property while the divorce is pending. If you are thinking of leaving your home and moving out, it is advisable to make sure that you have secured all of your possessions before you move as you could be prevented from re-entering the property. Until a court order is entered, however, if you left and decide to return unless there is an order preventing it, you can always return to the house. If your spouse leaves, you can change the locks, however, until you get a court order, they can break a window and legally gain access. You may want to either get a written stipulation for exclusive possession or a court order.

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Holidays and Custody

When it comes to holidays and custody, the courts generally will alternate the holidays so that one parent has the children in even years and the other parent has the children in odd years. Easter is usually only considered as a Sunday holiday not an overnight the night before. It is important, however, to always think about the children and parents can always design their own holiday schedule instead of leaving it up to the Courts. If both parties enjoy having Easter morning with baskets, you may want to alternate the Saturday into the Sunday. You may also want to split the day much like you with Christmas so that one parent has the night before and morning the other parent has the other half of the day into the next morning. Even children who do not have parents who are divorced are often shuffled on holidays between homes of in-laws, other relatives, etc. It is important to think about the children and what is in their best interests. When is it is not practical to share the holiday, a good alternative would be to Skype or facetime with the other party and family so that they can share in the celebration by video.

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