Tag Archive for: living wills

While proper estate planning is essential, mistakes do happen. Below are the TOP FIVE some common mistakes:

1. Conflicts between legal documents
Many clients do not realize that some property does not transfer through the estate. For example, a deed supersedes the will. In other words, if the deed is titled as joint tenants with right of survivorship, then it bypasses the will upon your death. In other words, the will can leave it to one person, but the deed will override the will.

Similarly, accounts in joint names or with beneficiaries go to the survivors/beneficiaries, despite what the will says.

2. Not leaving enough in the residue (i.e. specific bequests are too high)
Some people want to give specific gifts or amounts of money to a designated person. The remainder (or residue) is then given to the other beneficiaries. The intent is that people are not forgotten, with the bulk of the estate going to the closest family members. Unfortunately, people do not realize that the residue is sometimes smaller than anticipated. There are several reasons for this – estate costs (probate fees, inheritance tax, attorney fees, creditors) are higher than anticipated, real estate sells for less, the stock market and retirements accounts are lower than when the will was prepared, or you spend more than you expected to during your lifetime.

For this reason, you want to revise your will every few years to make sure that the distribution is as planned.

3. Not checking with executors/trustees
When drafting a will, you will need to name an executor, and potentially a trustee and/or guardian. Because there is a lot of work that needs to be done, many people are reluctant to put in the time or energy. Furthermore, some people are reluctant to become the executor because they believe that it will cause issues with other family members. It is best to confirm with the potential executor that they are agreeable to take on this endeavor.

4. Not reviewing the will after life changing events
It is important to review the will every few years. Life changing events happen all of the time, so whenever you or a family member goes through divorce, gets married, has children, loses a loved one, or has a falling out with a family member, you need to make sure that the will reflects the changes. Additionally, you want to make sure that the named executor remains up to the task.

5. Moving to another state
There are different requirements for all states. If you are moving to another state, you should consult an attorney in the new state to make sure that your most recent will is still valid.

6. Ambiguity in terms
There are times when a will is ambiguous. This can happen when there are two family members with the same name (senior vs. junior or when someone with the same first name marries into the family and takes the other’s last name). It can also occur when you give a specific item (i.e. my favorite ring to my daughter), and no one knows for certain what item you are referring. Furthermore, if you are giving percentages of your estate to family members, you need to make sure that the estate adds up to 100%.

As you are unable to clarify this upon your passing, it is imperative that all terms of the will are clear when it is prepared. If there are any ambiguities, it is likely up to the court to determine your intent.

When you pass away, it is important to have a will in place so that your assets are distributed per your wishes. However, if you pass away without a valid will in place, your estate will be distributed pursuant to Pennsylvania intestacy rules.

If you are married at the time of your passing, the following rules apply:

  • If you do not have surviving parents or issue (i.e. children), your spouse will be entitled to your entire estate.
  • If you leave issue (all of whom are also issue of your spouse), then your spouse will get the first $30,000 and half of the remaining estate, and your children will split the other half of the estate.
  • If one or more of your issue are from a parent other than the surviving spouse, then your spouse will receive half and the issue will split to remaining half.Likewise, if you have no issue but your parents are alive, then your spouse will get half of the estate and your parents will get the other half.

If you do not leave a surviving spouse, then your estate is left in the following order:

  • Children
  • Parents
  • Siblings (or their issue)
  • Grandparents
  • Aunts and Uncles (or cousins)
  • Commonwealth of Pennsylvania

It is important to speak with an experienced attorney as the rules are very complex and often confusing.

Bucks County has several upcoming “Wills for Heroes” events. This is a program in conjunction with the Pennsylvania Bar Association that provides free wills, living wills, and powers of attorney to first responders and their spouses/significant others. Appointments are required and can be made on the Pennsylvania Bar Association website. Each appointment is for one hour. At the conclusion of the appointment, each participant will have their final, notarized documents to take home with them. If a spouse or significant other is also participating, their appointment will be immediately following that of the first responder. The program is made possible through the time of volunteers including attorneys, reviewers and witnesses.

Upcoming dates and locations for events in our area are as follows:

Saturday, April 5, 2014 – Bucks County Public Safety/Emergency Services Training Center in Doylestown, PA

Saturday, April 12, 2014 – Northeast Regional Campus of the Community College of Philadelphia

Saturday, April 26, 2014 – Community Fire Company #1 in Riegelsville, PA

Saturday, May 17, 2014 – Richlandtown Fire Company in Bucks County, PA

Click here for more information on Wills for Heroes.