Custody Exchanges during Covid-19 Pandemic

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Our country is still battling the spread of a new virus and with that, new questions as to custody exchanges in the event of confirmed Covid-19 diagnosis or suspected exposure. First and foremost, be compliant with your existing Order to the extent possible. This virus is not a reason to keep your child from seeing their other parent. If exact compliance with your Order is not possible, be reasonable in making necessary accommodations to permit shared custody to continue. It’s also key to try to be on the same page regarding best practices. Be prepared to discuss and model good behavior for your child(ren) in both homes including hand washing, wiping down surfaces, wearing a mask, and social distancing.

Be transparent and provide honest information with respect to any suspected or confirmed exposure to the virus and try to agree on what steps you will take to protect your child(ren) from exposure. The courts have provided some guidance in the event of confirmed Covid-19 diagnosis or display of symptoms. If the reporting party has custody at the time, they should maintain custody until the symptoms resolve. If the non-reporting party has custody at the time, they should keep the child(ren) until the other parent has recovered. An exception can be made if parent has work obligation and cannot provide adequate care for the child(ren), in which case the child(ren) should return to the other parent. If there is a temporary pause in your schedule because of diagnosis or displayed symptoms, endeavor to work with each other to maintain a relationship through other means such as Skype, Zoom or Facetime.

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Estate Planning – Last Will and Testament

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Our firm recommends a few different documents as part of a basic estate plan one of which is a Last Will and Testament. This document allows you to provide for what should happen to your probate assets after you pass. Pennsylvania does apply a tax on assets passed through probate or intestacy. The amount of tax depends on the value of the estate as well as the relationship of the beneficiaries to the decedent. Pennsylvania requires that an Inheritance Tax Return is filed with the Department of Revenue within nine (9) months from date of death disclosing all assets that passed through your estate and their values. Debts of the decedent and estate administration expenses can be deducted from total assets prior to determining tax due.

A good estate plan can minimize the tax consequence for your heirs. Presently, gifts can be made in the amount of $15,000 per year without tax assessed. Non-probate assets, i.e. assets with a beneficiary designation such as life insurance policies, are not assessed an inheritance tax. You may consider diversifying your portfolio to hold your assets in a variety of different vehicles. Another option is to place assets in trust during your lifetime. The trust can be drafted such that you can continue to support yourself during your lifetime with the assets held in trust. An irrevocable trust may also prove useful if you have long-term care expenses or need to seek subsidized healthcare. Consult with an experienced attorney to fully understand your options for a suitable estate plan.

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Estate Planning – Power of Attorney

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Another document to include as part of a basic estate plan is a Power of Attorney. A Power of Attorney allows you to designate an agent to act on your behalf regarding financial matters during your lifetime. A Power of Attorney may be durable or springing. A durable Power of Attorney is effective upon signing meaning your agent can act on your behalf right away without any other prerequisites. In contrast, a springing Power of Attorney does not become effective until the signor has been deemed incapacitated. This is established by verification of two physicians.

An agent is required to act in the best interests of the signor and, to the extent they are aware of any specific desires of the signor, to comply with their desires. Successor agents can be named in the event the primary agent is unwilling or unable to act. Similarly, individuals can be named as co-agents with the requirement they act jointly. Each agent must sign an acknowledgment concerning these fiduciary duties prior to exercising their power. The court can step in and remove an agent where allegations of abuse by an agent are substantiated. The signor can also revoke the power of attorney at any time.

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Estate Planning – Living Will/Healthcare Directive

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The third document to include as part of your estate plan is a Living Will/Advanced Healthcare Directive. A Living Will allows you to indicate what sort of measures you would like or would not like to the extent the measures would only serve to delay your inevitable death. Specifically, these decisions would come into play if you are in a terminal condition or in a state of permanent unconsciousness, including persistent vegetative state or irreversible coma. If in that situation, you can elect or deny mechanical respiration, cardiac resuscitation, blood products, tube feeding, and dialysis, among other types of treatment.

You can name a surrogate to make medical decisions for you if you are unable to express your own intentions. Your surrogate is limited to the directives in the document. Your surrogate may also have access to your health care records and be able to authorize certain actions on your behalf. For example, to complete insurance forms, sign releases for your health care records, or authorize medication, surgical procedures, or donation of your anatomical parts. Successor surrogates can be named in the event the primary surrogate is unwillingW or unable to act. Similarly, individuals can be named as co-surrogates with the requirement they act jointly. Keep in mind the practical implications of naming individuals that must serve jointly, particularly if they live out-of-state or are estranged from their co-surrogate. Finally, your named surrogate should be someone you trust and you should discuss your intentions with them in advance.

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What to do if loved one dies without a will?

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If a loved one has passed away without a will, the laws of intestacy will govern how their estate is handled. The closest kin can apply to the Register of Wills to be designated as the administrator of the estate. Other kin of the same degree may need to renounce their right to serve. The administrator will be granted a certificate of letters of administration as proof of their authority to handle the estate. The administrator then has the responsibility for identifying all the assets and debts as well as beneficiaries and their contact information and maintaining the estate until final distribution. There are certain forms to be filed with the court as well as tax returns and advertisement of the estate.

With respect to final distribution, if the decedent was married and does not have any children or surviving parents, the entire estate goes to their surviving spouse. If there were parents, the first $30,000 goes to the surviving spouse as well as half of the remainder of the estate. If there are children of the marriage, the first $30,000 goes to the surviving spouse as well as half of the remainder of the estate also. If there are children of the decedent only, the surviving spouse gets half of the estate. The remaining half of the estate, or in the event the decedent is not married, the entire estate, shall pass in the following order: (1) to the decedent’s children; (2) to the decedent’s parents; (3) to the decedent’s siblings or their children; (4) to the decedent’s grandparents; (5) to the decedent’s aunts and uncles and their children and grandchildren. If there are multiple persons in a category, they will each receive equal shares such that a decedent with three children would have the estate separated into thirds.

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What to do if loved one dies with a will?

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After a loved one has passed, one of the first steps to be taken is to determine if they have a will. If so, you will want to locate the original will and make sure it has been properly signed. Ideally, the will has a self-proving affidavit so that the witnesses to the will do not need to be present when the will goes to probate. If there is not a self-proving affidavit, someone with knowledge of the deceased’s signature would need to verify the signature. In some counties this must be done in person. The named executor will need to go to the Register of Wills with the original will, photo identification, an estimate of the assets of the estate and some method of payment to open the estate.

The Register of Wills will give the executor certificates of letters testamentary. This document authorizes the executor to handle the decedent’s estate. The executor will likely need to appear in person at the appropriate county office throughout the probate process. For this reason, it makes sense to name an executor that lives in the area. You should also be careful if selecting co-executors as they need to agree on how to proceed. The executor should identify all the assets and debts as well as beneficiaries and their contact information. Real property should be secured and maintained, including keeping up with any mortgage, homeowners insurance and taxes in the interim. The executor is also responsible for paying necessary debts, advertising for the estate, filing of necessary tax returns, and final distribution of estate. You should work with an estate attorney to make sure all requirements are met.

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What to do after adoption

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After your adoption hearing, you can take steps to update your child’s name and/or birth certificate, where necessary. To obtain a new birth certificate you will need to submit a request through Vital Records in the state that issued the initial birth certificate. If outside of Pennsylvania, check with the local office regarding their specific requirements. For Pennsylvania birth certificates, a Certificate of Adoption is forwarded by the court to Vital Records to alert them the adoption was finalized. You would then contact Vital Records with a request for a new birth certificate and submit the applicable fee. Pennsylvania presently charges $20 for a new birth certificate, unless you are a military member, in which case the fee can be waived. The adoptive parents’ names and child’s name after adoption should be included in the application for birth certificate. The completed application, ID and payment would then go to Vital Records.

Processing times for receipt of the new birth certificate vary. The average time for adoptions is currently five (5) weeks. These steps are for a child born in Pennsylvania. For additional information on requesting a new birth certificate through Pennsylvania visit: https://www.health.pa.gov/topics/certificates/Pages/Birth-Certificates.aspx

After receiving the new birth certificate and depending on the age of the child, you may also need to update records at school, the doctor’s office, Social Security, etc. You may need to present your certified Decree of Adoption from the court in addition to new birth certificate to verify legal name change. Additional certified copies of your adoption decree can be requested through the court at a nominal cost.

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What assets will pass through the will?

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Not every asset owned by a party at the time of death will pass under the direction of the will or through the laws of intestacy. It is important to understand the difference in how assets will pass to ensure proper estate planning. Probate assets, those passing through the will, are those for which there is no pre-existing designation as to who should get the asset. Examples of typical assets that will be subject to probate include individually owned bank accounts, cars, personal property, business interest, real property held as tenants in common, cash, and life insurance with no beneficiary. These types of assets should be distinguished from any account with a beneficiary designation, non-probate assets, as those accounts will pass to the beneficiary.

You should also identify which accounts you hold jointly with other individuals. Generally, joint accounts will usually go to the other party whose name is on the account by operation of law.

Assets that are put into joint names within a year of date of death can still be subject to inheritance tax on the full amount of the account though ultimately a non-probate asset. If assets have been put into joint names over a year from date of death then only 50% of the account would be taxed. Ideally, you should plan for how any applicable inheritance taxes on probate assets will be apportioned.

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Transfer of Real Property

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A deed is the legal document to record an interest in real property. This is distinguishable from a mortgage which directs who is financially responsible for payments on a loan secured by real property. It is possible to be on a deed or a mortgage but not both. To the extent you are transferring ownership of property, a new deed is needed to reflect the change. The deed will specify the grantor(s), the person(s) relinquishing ownership of the real property, as well as the grantee(s), the person(s) who are acquiring ownership of the real property. The deed also includes a very detailed description of the real property at issue. These descriptions are based on land records from surveys of the property or construction plans.

Your county office maintains records for all the deeds within their jurisdiction. A new deed should be recorded with the office to replace prior deed. It is common for the deed itself in to include a brief summary of the recent line of ownership as well as where prior deeds were recorded in terms of book and page number. There is usually a cost assessed to record a new deed set by the county based on the number of pages of the document and number of signatures. There may also be real estate transfer tax due depending on the relationship of the grantor and grantee and total fair market value of the property being transferred.

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Tips for Executors

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An executor is the person designated to be responsible for the administration of a person’s estate. As an executor, you are required to act in a fiduciary capacity and carry out the decedent’s wishes as stated in their will. To start, the executor will need to take the will to the Register of Wills to open the estate and be formally recognized as the party authorized to handle the estate. From there, the executor will need to identify all the assets and debts the decedent had at the time of death. An inventory will need to be filed with the court. It is really useful to have a list of institutions where assets are held as well as user names and passwords now that so much business is conducted electronically as opposed to on paper.

The executor should also notify social security, employer(s), banks, insurance companies, retirement plans, post office, etc. regarding the death of the decedent. The executor is responsible for safekeeping and/or maintenance of the estate until the time of distribution. The executor should review the will to identify all possible beneficiaries as they will need to be notified. The executor will usually need to open an estate bank account to consolidate assets and be able to pay necessary bills and taxes. The last income tax return for the decedent needs to be filed as well as an inheritance tax return. The executor must keep detailed records of all transactions that occur as an accounting is usually part of the final process of distributing and closing the estate. Executors may receive financial compensation for their services. An executor may also elect to retain an attorney to ensure the proper administration of the state in lieu of undertaking the responsibility on their own.

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