An estate is the net worth of a person. It is the sum of a person’s assets – legal rights, interests and entitlements to property of any kind – less all liabilities (debts).
You do not have to be wealthy to plan your estate. Planning ahead may allow you to avoid certain tax liabilities, prevent unnecessary lawsuits and provide for the implementation of your wishes, giving you peace of mind.
In the event of a loved one’s death, his/her estate must be probated. How this process will occur depends on whether he/she died with a will or without a will (i.e. intestate).
Keller, Lisgar & Williams, LLP has developed a substantial Estate Law practice. Our attorneys have a great deal of experience representing individuals involved in probate litigation, estate planning and administration and can help you get through this difficult time.
Wills (drafting and probating) • Codicils • Will Contests • Trusts • Probate • Inheritance Tax Preparation
Power of Attorney • Durable Power of Attorney (Health Care Directive) • Living Will • Guardianship
Intestate Estates (no will) • Letters of administration
Estate Planning back to list
Estate planning provides for the disposition of real and personal property after death. Our attorneys will assist you in creating the appropriate documents pertaining to your individual situation. Whether you need a will, trust or heath care power of attorney, our attorneys can help you.
Wills back to list
A will is a legal document that allows you to declare in writing how your property will be distributed and how your affairs will be handled after your death. A will provides instructions about who should serve as your personal representative (executor or executrix). It allows for the quick transfer of property while avoiding many state and federal tax burdens. It allows you to designate the care, custody and guardianship of your minor or disabled children and pets. A will can provide notice of your desire to be cremated or buried with your wedding ring. It is a highly personalized estate planning tool.
In PA, a will can be created by anyone 18 years of age or older, who is of sound mind. A testator must sign the will, declaring it to be his last will, in the presence of two adult witnesses.
In PA, if a person dies without a valid will, (“intestate”), the laws of intestacy determine who inherits the estate.
Codicils back to list
A codicil is a document that amends, rather than replaces, a previously executed will. Amendments made by a codicil may add or revoke small provisions or may completely change the beneficiaries of a will. A codicil must conform to the same legal requirements as the original will.
Will Contests back to list
A will contest is a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator. Will contests generally focus on the assertion that the testator lacked testamentary capacity, was operating under an insane delusion, or was subject to undue influence, coercion or fraud. A will may be challenged in its entirety, or only in part by a beneficiary or an heir who would inherit from the testator if the will was invalid.
Trusts back to list
Trusts are estate planning tools that name a trustee to manage a person’s assets during his or her lifetime. A trust transfers management obligations of the trust property to one party (“trustee”) and benefits of the trust property to another party. A trust tells the trustee how to distribute those assets when the person dies. Unlike a will, a trust can reduce or eliminate estate taxes, and the need for probate court.
Our office can prepare testamentary trusts, living trusts, and charitable trusts on your behalf.
Probate back to list
Probate means to prove a will. During probate, the court must declare the will genuine. Through the process of probate, a deceased person’s property is distributed after his/her death, in accordance with the will or estate plan. Probate includes the calculation of the deceased’s assets, payment of the decedent’s debts from the assets of the estate, and the distribution of remaining assets according to the decedent’s will or estate plan.
Inheritance Taxes back to list
Before any assets can be distributed to the beneficiaries of the estate, the decedent’s debts, taxes, funeral expenses, and the expenses of administration must first be paid.
PA imposes estate taxes on real estate owned by a decedent within the state, and on the personal property of deceased residents of the state at the time of death.
PA also imposes taxes on the person who receives the inherited property (as opposed to estate taxes which are paid from the decedent’s estate). Inheritance tax exemptions and rates vary depending on who receives the property, i.e. the decedent’s spouse or child may be taxed at a lower rate than a friend of the decedent.
Inheritance taxes must be prepared and filed within (9) nine months of the date of death to avoid the accumulation of interest and penalties. An inheritance tax return is similar in preparation to an income tax return, allowing deductions for estate related expenses.
Power of Attorney back to list
A power of attorney gives someone written authority to act in your name with regard to your financial and business affairs. The agent may have the authority to control bank accounts, transfer or sell personal property and real property, trade stock, sign legal documents, etc. A power of attorney can be revoked at any time. A power of attorney is only operative while the principal is living.
Durable Power of Attorney (Advanced Healthcare Directive) back to list
The specific powers of a DURABLE power of attorney include the ability to authorize admission into a medical facility; enter into agreements for the principal’s care; and to consent, arrange, and authorize medical and surgical procedures including the administration of drugs.
In PA, the POA must be made in writing and be signed by the principal (presumed durable) in the presence of two adult witnesses.
A durable power of attorney is not affected by subsequent disability or incapacity. An agent must have actual notice of revocation for it to be effective. Divorce revokes power of attorney for a spouse.
Living Will back to list
In PA, any person of sound mind, 18 yrs. of age or who has graduated from high school or is married may create a living will. The living will must be signed by declarant in the presence of 2 adult witnesses. The living will becomes operative when the declarant is determined to be incompetent by the attending physician and is certified in writing. A living will is generally not operative during pregnancy.
Guardianship back to list
A guardian is a person lawfully invested with the power and charged with the duty of taking care of the person and managing the property and rights of another person, who, for because of age (i.e. child), mental incapacity (i.e. Dementia and Alzheimer’s disease), or self-control (i.e. drug abuser) is unable to care and mange his/her own affairs.
When an individual reaches the age of 18, regardless of any functional limitations or
disabilities, he/she has the legal right to make decisions on his or her own behalf. Only a court, after a legal proceeding, may judge an individual to be incapacitated and appoint a guardian to make decisions for him/her.
In Pennsylvania, a court may appoint a guardian of the person and/or of the estate for an individual who lives in Pennsylvania or if the property is in Pennsylvania after a hearing and finding that the individual is “mentally incapacitated.” It is the petitioner’s burden to establish by clear and convincing evidence that the respondent is incapacitated. 20 Pa. Cons. Stat. Ann. §5511(a).
The proceeding is initiated when an interested person files a petition in the Court of Common Pleas, Orphans Court Division for the appointment of a guardian for a person or the person’s estate. The information to be included in the Petition is governed by 20 Pa. Cons. Stat. Ann. § 5511(e).
Any qualified individual, corporate fiduciary, non-profit corporation, or county agency
may serve as guardian. 20 Pa. Cons. Stat. Ann. § 5511(f). If no other person is willing or
qualified to serve, a guardianship support agency may be appointed by the court. 20 Pa.
Cons. Stat. Ann. § 5553(a). The guardian must not have interests that conflict with those of the incapacitated person unless no alternative exists. 20 Pa. Cons. Stat. Ann. § 5511(f). For persons residing in state facilities, the guardianship office may be appointed guardian of the estate. 20 Pa. Cons. Stat. Ann. §5511(f).
Many people with disabilities are able to make non-financial decisions concerning aspects of their lives without a guardian but could use assistance from others concerning financial matters. In instances such as Social Security Disability (SSD) and Supplemental Security Income (SSI), the funds can be managed without a guardian through the appointment of a representative payee. Advance planning by families can often avoid the need for a guardian to manage gifts, inheritances, or other assets.
If you need an attorney with knowledge and experience of guardianship law, contact us today for your free consultation.
Intestate Estate back to list
A person who dies without a will in PA is said to have died “intestate.”
The Commonwealth of Pennsylvania has developed a set of intestate laws which guide the disposition of a person’s property if he or she dies without a will. These laws can be found at 20 Pa.C.S.A. § 2101 et seq. These laws dictate which heirs have entitlement to the estate. Whether a person is an heir depends on his or her relationship to the deceased.
If the decedent is survived by a spouse, the amount of the estate due the spouse varies depending on who the other then living relatives are. The law controlling what portion of the decedent’s estate the surviving spouse is entitled to can be found at 20 Pa.C.S.A. § 2102.
If there is no surviving spouse, the laws of Intestate Succession at 20 Pa.C.S.A. § 2103, provide for the passing of the estate to the decedent’s heirs in the following order:
- Children, first, to the children of the decedent;
- Parents, if no children survive the decedent, the decedent’s parents share the estate equally; if only one parent survives, the surviving parent takes the entire estate;
- Brother, Sister, (or their Children), if no parent survives the decedent, then the estate will be distributed to the children of the decedent’s parents (or their children);
- Grandparents, if no siblings survive the decedent, then the grandparents of the decedent shall receive one-half to the paternal grandparents and one-half to the maternal grandparents, (or their children);
- Uncles, Aunts, and their Children and Grandchildren, if no grandparents survive the decedent, the estate is distributed to the decedent’s uncles, aunts, and their children and grandchildren;
- Commonwealth of Pennsylvania, if no one mentioned above survives the decedent, then the Commonwealth of Pennsylvania assumes the estate.
Before an estate can be administered, the probate court must appoint an administrator. An administrator’s duties are similar to an executor. The court does this by granting letters of administration to the person so entitled. In some instances, the heirs agree to the appointment of a certain individual. In others, a hearing is held at which time a judge will decide who the administrator will be.
Our attorneys have a great deal of experience dealing with estate matters and we can help you get through this most difficult time. Contact us today for your free consultation.