This article is meant to provide the reader with basic information on a Pennsylvania last will and testament. While comprehensive, this article is not complete and is not a substitute for speaking with an attorney about your specific situation. A Pennsylvania last will and testament can provide many advantages. This article will touch on many of those advantages.
Some of the topics we cover in this article include:
Who can make a Pennsylvania last will and testament?
Who can execute a Pennsylvania last will and testament?
What happens when I die without a Pennsylvania last will and testament?
What are the differences between a Pennsylvania last will and testament and a trust?
Why Make a Pennsylvania Last Will and Testament?
Before diving into specifics, we want to explore a more general question.
Why should you create a will in the first place?
Simply stated, everyone who can create a will should do so.
Control Who Receives Your Property and How They Receive It
Making a Pennsylvania last will and testament guarantees that everything you’ve worked so hard to accumulate in life will be distributed to the people and organizations most important to you.
As we all know, life is expensive and costs money. If you’ve saved any amount of money or property, you owe it to yourself to make a will. Whether you die with one million dollars or one thousand dollars, you should make sure those assets go to the people you care about.
As you will find out, if you die without a will, the power and discretion to pass along your estate in whatever way you like is dramatically reduced. The State of Pennsylvania has its own plans for distributing your estate when you die. And, more often than not, those plans will not align perfectly with your plans.
The fact is, the State of Pennsylvania cannot guess your intentions. So they do their best to distribute an intestate estate fairly. And, when examined critically, their mechanism for distribution is highly equitable. But the State is not a person and they distribute property without emotion.
Pennsylvania cannot know, for example, that you had planned to pass on more money to one child than another because of gifts made during your life. The State doesn’t know that you planned to let your brother stay in your house for the rest of his life. The examples are endless. Because the State cannot possibly know your wishes and intentions, unless you spell it out clearly and properly in a will, your property will be disbursed according to impersonal principals.
But other reasons exist to create a Pennsylvania last will and testament.
Prevent Your Loved Ones From Fighting Over The Estate
Many times I have clients confide that they want to make a will so that their children do not fight over money and property. Parents do not want to see their children fight ever, but especially after they are gone and particularly about money.
Creating a Pennsylvania last will and testament that spells out exactly who gets what can help ensure that your beneficiaries do not bicker over your estate.
Everyone wants to believe that their children will resolve disputes amicably and maturely. But that is not always the reality of family relationships. You may assume that your children know who you want to receive your mother’s ring or your husband’s original discharge papers. But, as is often the case, different children have different ideas about your wishes.
Making a will leaves no doubt as to your intentions and can limit disputes among family members.
Protect Your Assets From Costly Medical Care
A Pennsylvania last will and testament can also be a tool to reduce costly medical expenses. It’s a sobering fact, but over 70 percent of Americans over the age of 65 will need long term care services at some point in their lives.
Assisted Living and Nursing Homes are very expensive. The average cost of a skilled nursing facility in Pennsylvania is over $9000.00 per month. To qualify for Medicaid, assets must be spent down. If you fail to plan for expensive medical care at an appropriate time, you may find that all or most of your estate is spent down on care. While VA Aid and Attendance benefits and long term care insurance could help cover some of these costs, the average person will still need to use some of their estate to private pay for care.
Fortunately, if you are reading this article you have at least thought about how to organize your estate. A properly drafted will can prevent a full spend down of assets and help you qualify for Medicaid benefits at the earliest possible time. If you are married, and even if you are perfectly healthy, creating a will that also functions as an asset protection strategy is worth considering.
The above are some of the main reasons why everyone should create a Pennsylvania last will and testament. But there are other reasons. With a will you can forgive debts, name a trusted executor to administer your estate, name guardians for your minor children, and create trusts for your children.
What Should You Do Next
Please review the rest of this article. It is full of helpful information.
If you want to speak for free with a Pennsylvania licensed attorney about making a will for yourself or a loved one, contact us today. There is absolutely no obligation or commitment.
What is a Last Will and Testament?
People use many legal terms and expressions to define a will. But, at its essence, a will is really just your instructions for where you want your property to go after you die.
A Pennsylvania last will and testament can be more or less complicated depending on your wishes and the size of your estate. But a will is still a document that you use to express your expectations for your property after you die.
You can think of a will as a promise to yourself.
When you die, if you have a Pennsylvania last will and testament, you can be confident that your belongings will be distributed according to your goals. This is very important. Without a will, your estate may be subject to the mandates of Pennsylvania law and other people. Losing control of your estate and having other people determine who gets what when you die is a discomforting thought for many.
A will can allow you to create a document that clearly expresses your desires in a way that cannot be misunderstood or changed. For this reason, many Pennsylvania residents choose to create a will for the peace of mind it can bring.
Who Can Make a Last Will and Testament?
To make a valid Pennsylvania last will and testament you must be 18 or older, possess testamentary intent, and be of sound mind. Anyone who meets these three requirements can make a will that must be honored in Pennsylvania.
This means that a minor cannot create a valid will.
What is testamentary intent?
A Pennsylvania last will and testament must show what is called testamentary intent. The creator of a will must be aware of what they are doing. There must be a present desire to dispose of assets at death. The testator must realize they are creating a will and they must understand how their property will be distributed upon death.
This does not mean that the person creating a last will and testament must know the exact nature of his assets or their exact value. A general idea of assets and their value is sufficient. Testamentary intent also does not mean that your wishes for the allocation of assets are actually carried out. But you must have a present intent.
Lastly, your testamentary intent and the actual writing of the will must be affirmative. Specifically, you cannot use negative words to dispose of your assets. If you have two children, but you wish to disinherit one child, your will should not say “I wish that my estranged child Patrick should not receive any of my property at death.” Rather, a better choice of words would be, “My loving daughter Mary should receive all my property after death.”
This last piece is crucial. Expressing negative wishes is a common attribute of do-it-yourself wills. To be clear, there is nothing inherently wrong with drafting your own will.
However, all too often, we see instances where simple drafting mistakes invalidate the will and the last wishes of the testator. Sometimes these drafting errors are the equivalent of dying without a will.
For this reason, if you have any doubts about creating your own last will and testament, we recommend that you speak with an attorney licensed in Pennsylvania.
But what does of sound mind mean?
Absent evidence to the contrary, such as clear incompetence or severe Dementia, it can be assumed that someone is of sound mind.
Unfortunately, Pennsylvania legislators never defined “of sound mind” or provided much guidance. There is no bright line standard.
But common sense should be your guide. If a person seems capable of handling their own affairs, most likely they are of sound mind.
Importantly, capacity is measured at the time of execution. Soundness of mind is not a constant or fixed attribute. A person that has good moments and bad moments may still have the testamentary capacity to execute a valid Pennsylvania last will and testament.
Does Pennsylvania Allow Oral Wills?
Have you ever watched a movie where a dying man or woman dictates their last will and testament into a tape recorder? While those scenes are dramatic and exciting, they do not meet the standards set forth by the Pennsylvania legislature.
Pennsylvania does not permit oral wills. To be valid, a Pennsylvania last will and testament must be written. This means that video-taped wills are not valid in Pennsylvania. On the other hand, your will does not have to be typewritten. A last will and testament composed on a napkin is valid if it meets the other requirements enshrined in the Pennsylvania code. Handwritten wills, whether they are on a napkin or a cardboard box, are known as holographic wills.
Does a Last Will and Testament Need To Be Signed?
Wills generally must be signed at the end of the document by the person making the will. Any writing after the will, or below the signature, is likely not valid and will not be enforced. A Pennsylvania last will and testament need not be witnessed, notarized, or dated. Be aware, however, that there are exceptions to this rule.
For example, if the person making the last will and testament cannot sign, and can only make their mark, or if the will is signed by a power of attorney, two witnesses must be present. If the testator can only make their mark, that person’s name must be subscribed (typed or written) before or after the mark.
If the testator cannot make a mark at all, and needs another person to sign for him, then the person making the will must declare out loud that the document just marked or signed is their last will and testament. The witnesses must sign in the presence of the person making the will.
It is important to remember that even if the person creating the will cannot sign themselves, and someone signs for them, the will is still perfectly valid so long as the other requirements previously discussed are met.
Can a Last Will and Testament Be Revoked?
What happens if you want to change your will or even want to do away with it altogether? Of course, the best policy is to take action. It is never a good idea to procrastinate if you decide you want to amend your will. Most likely, waiting to change or altogether revoke your Pennsylvania last will and testament should not have negative consequences. However, acting promptly is still the best policy.
Why would you even want to amend or revoke your last will and testament? Maybe you are recently married or divorced and need to adjust the will to better reflect current realities. Perhaps you want to apply for Medicaid or VA Aid and Attendance benefits.
So how and when can you make changes to you will?
Only a few ways exist to revoke a Pennsylvania last will and testament. A will or codicil can only be revoked or altered by: 1) some other will or codicil; 2) some other writing that states your desire to revoke or alter the will that is executed and proven according to the requirements; and 3) if you burn, tear, or destroy the will or codicil with the intent and for the purpose of revoking the will.
This act of destroying the last will and testament must be carried out by the testator or by another person at the testator’s direction and in his presence. Your order to another person to destroy the will must be made and proven by two competent witnesses.
Can a Revoked Last Will and Testament be Revived?
What happens if you create a will and then later in life decide to create a completely different will? The first will is revoked even if you do not explicitly state your intention to revoke in the most recent will.
But what happens if the testator then decides to revoke the second will – is the first will revived? The first will is not revived unless the testator revokes the most recent will in writing and declares her intention to revive the first will. Alternatively, the first Pennsylvania last will and testament can be revived after revoking the second will if the first will is re-executed. As always in Pennsylvania, oral republication is insufficient to revive a will.
Is There a Difference Between a Last Will and Testament and a Living Will?
Wills and living wills are two very different documents. A last will and testament is a written document used to distribute your assets according to your wishes when you die.
A living will, however, is a health care document. Living wills are an important part of your durable health care power of attorney. The durable health care power of attorney appoints a trusted family member or friend to oversee your healthcare needs.
The living will spells out clearly what type of medical help you want to receive in specific situations. These situations are often end of life situations. It is important to be clear about what type of medical help you do or do not want.
What Happens if I Die without a Last Will and Testament?
If you die without a Pennsylvania last will and testament and therefore fail to designate who you want to receive your assets when you die, then the state will decide for you. And the state may not make the same choices that you would have.
Someone who dies without a will has what is known as an intestate estate. You want to avoid this if possible.
When you die without a last will and testament your estate passes to your heirs. The problem, of course, is that you don’t get to decide which heirs receive what. Or maybe you would have chosen to pass the entirety of your estate onto a charity.
When you die without a Pennsylvania last will and testament, you don’t get to make any of these decisions. The state will divide up your estate depending on your family situation. It can get complicated and, unfortunately, divisive. Many people do not want their children or the spouse fighting with one another about money or real estate after they pass away. The thought of family fighting is one of the main motivations to create a will.
Given the dangers of dying without a last will and testament, or creating your own invalid will, we recommend that you answer a few simple questions and then speak to a qualified Pennsylvania attorney free of charge.
Must a Last Will and Testament Be Recorded?
Your will does not need to be recorded. This is a common misconception. If a will needed to be recorded, revoking or amending the will would be difficult. It is not the State’s intent to make a last will and testament difficult to change. After death, the will gets recorded or probated by the Register of Wills. The will is then public record, which is why some people prefer a Trust.
Some lawyers may want to keep your original Pennsylvania last will and testament in their office. This also is unnecessary. You can store your will anywhere you’d like. Many lawyers want to keep your will at their offices in order to probate your estate when you die. Estate administration fees can be quite high.
What Happens If I Don’t Change My Last Will and Testament After I Marry or Have Children?
A testator can actively amend their will. If you want to change a provision in your last will and testament, then that is your right. After all, one purpose of a will is the ability to direct exactly how you want to dispose of your assets when you die.
The above can be thought of as active amendments. But Pennsylvania law also provides for passive amendments. These passive amendments are called modification by circumstance.
So what happens if you marry after you create a will?
If the testator marries after creating a last will and testament, then the surviving spouse by law receives what is known as the elective share. This scenario is the same as when someone dies without a will or intestate. The elective share is the minimum amount a surviving spouse can receive in Pennsylvania. The elective share is 1/3rd of your estate.
An exception to the elective share, of course, is when the will is amended after marriage to give the new spouse additional estate assets upon your death.
If you did not amend your Pennsylvania last will and testament after having children or after having additional children, any child born or adopted after the will was created may still receive some of the estate.
However, these children will only receive property that does not go to your surviving spouse. So if your will provides that the entire estate should pass to your spouse, none on your children will inherit. But if your will states that only some of the estate should go to your spouse, and the remainder to your children, then under this scenario children not named in the last will and testament shall still inherit a part of your assets.
Children not mentioned in the will shall receive from the remaining property not allocated to your spouse an amount equal to the percentage if you had died unmarried and without a will.
If this sounds complicated, dying without a last will and testament or dying before you amend your will to include new family members can be complex.
What Happens to My Last Will and Testament If I Divorce?
A testator can actively amend their will. If you want to change a provision in your will, then that is your right. After all, one purpose of a will is the ability to direct exactly how you want to dispose of your assets when you die.
The above can be thought of as active amendments. But Pennsylvania law also provides for passive amendments. These passive amendments are called modification by circumstance.
For example, if you are divorced or about to be divorced, any provision in your last will and testament that benefits your spouse becomes ineffective. In other words, your ex-spouse, or soon to be ex-spouse, no longer is entitled to your property when you die. The lone exception to this rule is if your will can be interpreted to show that you did want your spouse to remain in the will even after a divorce. However, standard wills will not be interpreted in this manner.
What is Probate?
Most people think of the probate process when they hear the word probate. The probate process has many steps and can be more or less complicated and time consuming depending on many variables.
But probate, first and foremost, means to prove the validity of the decedents last will and testament. Proving the validity of the deceased’s will is generally a routine matter. After receiving a death certificate, the executor of the will goes to the register of wills in the appropriate county. After two witnesses testify that the will is genuine, the executor takes an oath to faithfully carry out the instructions spelled out in the will.
While the above process is straightforward and relatively simple, creating a self-proving Pennsylvania last will and testament makes the executor’s task even easier.
Probate, more generally, involves identifying and inventorying the decedent’s property, getting an appraisal on that property, paying taxes and debts, determining if the decedent ever received Medicaid, and then disbursing the remaining estate per the instructions in the will.
The above is the most basic outline of tasks that must be completed. For more information, we recommend you contact an attorney or the appropriate county office.
What Is a Self-Proving Last Will and Testament?
We highly recommend every will includes a self-proving provision. A self-proving clause makes your executor’s job of administering your estate that much simpler. And, after all, one purpose of creating a last will and testament is to make things easier for your family and loves ones after you die.
With a self-proving will, the executor can simply walk into the register of wills and forgo the requirement that two witnesses swear to the will’s genuineness. And tracking down witnesses’ that can attest to the validity of the last will and testament can be a time consuming and laborious endeavor.
To avoid this extra step, at the time the will is signed by the testator, two witnesses can sign their name to an affidavit that states the person creating the Pennsylvania last will and testament was: 1) not a minor; 2) of sound mind; 3) willingly signed and executed for the purposes described within the will; and 4) not under any undue influence.
Additionally, these witnesses must have been present when the person creating the will executed it and when other witnesses were signing. This affidavit must be notarized.
While the above requirements may seem strenuous, they will save the executor of the decedent’s estate time and effort.
What is the Difference Between a Last Will and Testament and a Revocable Living Trust?
You’ve learned from reading this website that a last will and testament is a written document that allows you to control the distribution of your estate after you die. The testator gets to control who receives their assets and property and when they receive it. The creator of a will can designate who they want to administer their estate. When you create a last will and testament, you can even create a testamentary trust that could save your family many thousands of dollars in health care.
Unlike a will, a revocable living trust is effective after you execute it. A will takes effect after you die, but a revocable living trust is effective during your lifetime.
If your assets are titled correctly, a revocable living trust avoids the probate process. The probate process can be lengthy, though in Pennsylvania probate is generally not as time-consuming as some other states. Titling your assets correctly entails transferring those assets into your trust. A will does not require this step and is generally easier to maintain and keep current than a revocable living trust.
Another difference between a will and revocable living trust is privacy. When you die, a last will and testament becomes a matter of public record. A revocable living trust, however, stays private after you die so the public does not have access to your financial affairs.
There are other differences between wills and revocable living trusts. Also remember there are many types of trusts and those trusts serve different purposes.
Can I Use a Last Will and Testament to Appoint a Guardian for My Children?
Many young families choose to make a Pennsylvania last will and testament in order to name a guardian for their minor child or children.
Often times, young families don’t think about creating a will. Maybe they think they don’t have sufficient assets for a will. Or maybe they think they are too young to create a last will and testament. These thoughts are reasonable but ultimately flawed.
If you have minor children, creating a will to appoint a guardian in case something happens to you or you and your spouse is crucial.
In all likelihood, your children will never need the guardian named in the will. But naming a guardian is a little like buying life insurance. Chances are you won’t need it but, if you do, you’ll be happy you made the right decision.
If you are married and competent to make a last will and testament, both you and your spouse should create separate wills that name the same guardian. If you and your spouse die simultaneously, your named guardians will then take custody of your children. If only one spouse dies, the remaining living parent will continue to raise the children.
The guardian will: decide where your children live, what religion they are raised in, what medical treatment they receive, what schools they attend, and many other decisions. Clearly, the choice of guardian should not be undertaken lightly.
When choosing a guardian, make sure you consider the following: do they have the time to raise and care for your children, do they have genuine concern for your children, and does the prospective guardian share your beliefs. There are many other factors to consider when choosing a guardian.
You should also be aware that you can choose one person to be “guardian of the person” and a different person to be “guardian of the estate”. You may choose to separate these responsibilities because the person best suited to raise and care for your children may not be the best person to control their assets.
To speak to an attorney licensed in Pennsylvania about the different considerations when naming a guardian, contact us today. There is no fee, obligation, or hassle.
GLOSSARY OF TERMS (Alphabetical Order)
Assisted Living Facility – An Assisted Living Facility, or ALF, is a community for seniors that cannot live independently. Often times, a resident of an ALF receives assistance with activities of daily living, or ADL’s, such as bathing, dressing, and transferring.
Decedent – A person who has died.
Estate – All the property a person owns or controls.
Intestate – A person that dies without a will has died intestate.
Last Will and Testament – A document that states your final wishes. Sometimes this document is called a last will and testament. A will is an important part of estate planning.
Medicaid – Technically known as Medical Assistance, Medicaid is a benefit for Pennsylvania residents in need of Long Term Care (Skilled Nursing or sometimes Assisted Living).
Power of Attorney – A legal document giving power to another to act on your behalf in certain legal or financial matters.
Register of Wills – An office with jurisdiction over the probate of wills and the granting of letters of administration. This office also collects state inheritance taxes.
Skilled Nursing Facility – A facility that offers the highest level of non-hospital care for seniors. A licensed physician supervises each patient’s care. A skilled nursing facility offers more care than an assisted living facility. A resident of a skilled nursing facility could be eligible for Medicaid.
Testator – The person that makes the last will and testament.
Trust – There are many types of Trusts. A revocable living trust can be thought of as a will substitute used to avoid probate. To determine if a will or trust is more suitable for your particular situation, we recommend contacting an estate planning attorney.
VA Aid and Attendance – A monthly benefit from the Department of Veterans Affairs for wartime veterans or their surviving spouses that meet certain eligibility standards.