When we plan activities in our lives, it is only natural that we focus on events that are pleasant and enjoyable, such as birthdays, weddings, holiday dinners and parties. It is much harder to focus our attention and plan for potentially unpleasant events - death or incapacity.
Though it is not the most pleasant task, preparing a Last Will and Testament is one of the most important things you can do for your family. A will provides needed direction to your family at your death; without a will, the Commonwealth of Pennsylvania establishes how your estate is managed and distributed.
What do you accomplish by Writing a Will?
- you dictate who will receive your estate and in what shares or percentages
- you may mandate whether or not churches or other charitable organizations will benefit
- you appoint the individual (legally called an executor) who will administer your estate
- if you have minor children, you select who will serve as their guardian and who will be the trustee of their finances
- you can set up a trust and determine how your funds will be used for your children and how long the trust will remain in effect (without a will, your children may receive all your assets on their 18th birthday, which may not be what you wish to happen)
- It is important to understand that a will only takes effect after death. A will is not filed in the courthouse or any other place until that time.
A will is only one of the tools you may need to plan for the future. How do you protect your family if you are severely injured in an accident, contract a debilitating disease, or become infirm because of age?
One answer may be a Durable Power Of Attorney
This document allows you to select a person or financial institution (known as an "agent") to take charge of your financial affairs when you are disabled. Your agent has a range of powers that may include the ability to sell real estate or investments, enter safe deposit boxes, file tax returns, modify insurance benefits and communicate with financial advisors and attorneys. Without such a power of attorney, a relative or friend may have to petition the court to become your legal guardian. This person may not necessarily be the one you would have chosen to handle your affairs. Petitioning the Court for a guardianship is neither quick nor inexpensive, and involves a court hearing where testimony is taken from your physician to determine your capacity to act for yourself. If the court determines you are not capable, the court will then name a guardian to administer your affairs.
Another necessary part of the planning process may be a Medical Power of Attorney.
A medical power of attorney appoints a trusted family member or friend (known as an "agent") to make medical decisions if you are unable to do so. Your agent will be able to consult with your physicians, decide with them on a course of treatment, select a hospital or surgeons you might need, decide on the appropriateness of nursing care and make other similar decisions. The document also authorizes your agent to gain access to your medical records and history (even though there are privacy laws - the Health Insurance Portability and Accountability Act (HIPAA) - that normally protect those items from being viewed by anyone other than the patient).
To complete your planning, a Living Will is suggested.
If you were incapacitated tomorrow or found yourself suffering from a terminal disease, what sorts of end of life decisions would you prefer doctors make? Do you want to be placed on life support indefinitely? At what point should they try to stop resuscitating you? Do you want to be given powerful pain medication that interferes with your lucidity?
While a medical power of attorney appoints someone to make medical decisions for you, a living will guides them and your physicians in ruling in or out certain treatments or procedures if - and only if - you are in a state of permanent unconsciousness or in a terminal condition. You have the ability to suggest to the medical providers that such things as feeding tubes, mechanical respiration, cardiac resuscitation, kidney dialysis and other forms of treatment are not acceptable to you if used simply to prolong the process of dying. You can also indicate to health care providers that you do wish to be made comfortable, through the administration of pain medications and other means.
There is no substitute for good planning. You have the ability to create documents that provide needed direction to your family members, who will appreciate knowing that they are carrying out your wishes, during a difficult time.
The estate lawyers at Quatrini Rafferty is available to answer any questions you may have about these issues.
Probate and Estate Administration
After a family member passes away, loved ones often ask, "When's the reading of the will?" Movies and television no doubt have prompted this question. The truth is that it is extremely rare to assemble the family and read the will. When we handle an estate, we usually provide copies of the Will to the beneficiaries; the Register of wills can provide copies at a nominal expense as well.
Our hope is that when someone close dies, we can ease the family through the rigors of the estate process and not add to the trauma that a grieving family is already experiencing. Many people become overwhelmed with the funeral arrangements, the daily mail, the bills, the insurance benefit and retirement proceeds applications, satisfying taxes, and the list goes on and on.
Let's use a hypothetical example to demystify the estate process. Mother passes away. She has been a widow several years prior to her death. Her will is kept in her strongbox or safe deposit box with her other important legal papers. She leaves behind three adult children (who are the beneficiaries named in her will) and six grandchildren. The will names her oldest child, who happens to live near mother, as the executor or personal representative of the estate. The executor is responsible to carry out the terms of the will and comply with the law.
After the funeral the executor should meet with an attorney to begin the process of gathering financial information and probating the will. Probate means to file the will at the county Register of Wills Office, where the Register officially appoints the executor. It is necessary to advertise the estate in the local newspaper and to notify all of the beneficiaries that the will has been filed and the estate administration process has started. Banks and other financial institutions are contacted to obtain the value for all of the deceased's holdings and obligations as of the date of death. If real estate is involved, a realtor or appraiser may be needed to value or sell the property.
Although there is a nine-month deadline to file an inheritance tax return, at Quatrini Rafferty we try to file it as soon as all of the financial information is obtained. The inheritance tax in Pennsylvania is assessed on the net value of all property passing to the beneficiaries. In our example the beneficiaries are children of the deceased and are currently taxed at a rate of 4.5%. Other beneficiaries are taxed at different rates. For example, nieces and nephews are taxed at 12% and non-related individuals are taxed at 15%. If Quatrini Rafferty is handling the estate, we make sure that the appropriate amount of tax is paid, taking into consideration all permissible deductions. All of this information is filed with the Court. The Pennsylvania Department of Revenue reviews this information to determine its correctness. If all is satisfactory, the estate can then be concluded by either a family agreement or a court decree.
Although the executor is legally responsible for this whole process, we at Quatrini Rafferty advise, organize and simplify matters to reach a proper outcome for all concerned.
If you need additional information or if you find yourself in the role of executor and in need of a helping hand, the estate department at Quatrini Rafferty is available to provide you with assistance. Contact an experienced Greensburg Estate Planning Attorney via email or phone us at 724-837-0080 in Greensburg or toll free at 888-534-6016.