Archive for 'Wills'
Health Care Power of Attorney and Living Will
Posted on 16. Jan, 2011 by briankoeberle.
Many people are familiar with a Durable Financial Power of Attorney whereby a designated Attorney-In-Fact/Agent is empowered to make financial decisions on behalf of another. But did you know that you can also designate a “Health Care Agent” to make health care decisions on your behalf?
An Advance Health Care Directive that includes a Health Care Power of Attorney and a Living Will allows you to express your health care decisions in advance by (1) naming a health care agent to make health care decisions on your behalf; and (2) giving health care treatment instructions and guidance to your health care agent and physicians.
Under a Health Care Power of Attorney, you appoint a health care agent and one or two alternates. Your health care agent is given certain powers whenever you can’t speak for yourself, such as the power to authorize, withhold or withdraw medical care and surgical procedures; the power to authorize, withhold or withdraw food or water by tube feeding; and the power to authorize admissions to or discharges from medical, nursing, residential or similar facilities.
The Health Care Power of Attorney can also provide guidance for your health care agent regarding your goals in making medical decisions if you have an end-stage medical condition or other extreme irreversible medical condition.
A Living Will allows you to decide in advance what type of medical care, if any, you want in the event you have an end-stage medical condition or are permanently unconscious such as in an irreversible coma or irreversible vegetative state. You can choose whether or not you want aggressive medical care such as CPR, mechanical ventilation, dialysis, surgery, chemotherapy, radiation, drugs to relieve pain, or antibiotics. You can also choose whether or not you want any type of tube feedings.
In my practice, I have been using a combined document that contains both a Health Care Power of Attorney and a Living Will.
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The Elements of a Valid Will!
Posted on 22. Feb, 2010 by briankoeberle.
Recently a dear friend of mine passed away. It was later discovered that in her final days she attempted to hand-write a “will” on a piece of paper. Unfortunately, the document she wrote lacked many of what are considered to be the essential elements of a valid will. As a result, the validity of the document came into question.
To protect yourself from this same problem, pay close attention to the following essential elements in making a valid will:
- You must be of “legal age” to make a will. In most jurisdictions this is 18 years old.
- You must have “testamentary capacity” to make a will, which is what many refer to as “sound mind”.
- You must have “intent” to make this document your last will and testament.
- You must “voluntarily” sign the will and not be under any duress to make a will.
- The will must properly “dispose” of your property.
- The will should be a “written” document and “witnessed” by two other parties.
- The will should be “properly executed” by you as your last will and testament.
In addition, pay close attention to the following:
- Make sure you revoke any prior wills and/or codicils.
- Provide for the payment of your just debts and funeral expenses.
- Name an Executor/Executrix (and alternate) who will be responsible for wrapping up the affairs of your estate.
- If you have any minor children, name a guardian or guardians of both your child’s person and estate.
- Make sure that the signatures on the will are acknowledged by a notary.
- Lastly, consult with an attorney to make sure that a valid will is properly prepared for you.
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When Someone Dies, Who Pays The Leftover Bills?
Posted on 01. Apr, 2009 by emmettjones.
When someone passes away, the job of closing up their estate usually falls on the shoulders of the executor (or administrator) of the estate; who is either specifically named in a will or appointed by the court. Since it is the job of the executor/administrator to wrap up the affairs of the deceased, what happens with any creditors the decedent had before death?
The proceeds from the decedent’s estate are to be used to pay off the decedent’s debts. If the decedent’s assets are not enough to pay off the debts? The debts go unpaid.
Simply put, if the decedent’s assets are not enough to pay off the outstanding claims against the decedent, the claims would simply go unpaid and be forgotten. It is important to note though, that the claims against the decedent are paid out before anyone receives any sort of inheritance, so any one hoping to collect money from the decedent’s will, for example, would be out of luck as well. The one exception to the rule deals with those who co-sign on a debt or those who are joint debtors. Co-signers and Joint-Debtors would still be liable for a debt even after the decedent dies…
Example: John co-signs on a $100,000 for Jane. Jane dies days after receiving the loan. Once everything is calculated, Jane’s estate is only able to pay back $60,000 of the loan in question. John, as a co-signer is liable for the remaining $40,000 in question.
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Dying without a will and the PA Intestacy Statute
Posted on 26. Mar, 2009 by emmettjones.
Dying without a will is not the worst thing in the world, although it can create a myriad of problems for your surviving loved ones. That being said, having a will is definitely the best course of action (See: Why do you need a Will?). But, what if its too late for a will? How will an estate’s assets be distributed?
By the intestacy laws of the particular state.
Pennsylvania’s intestacy statute can be found at 20 Pa.C.S. §§ 2101 et seq.As I mentioned earlier, it deals with the distribution of a decedent’s estates in the event that they died without a valid will. Some highlights of note,
- If a decedent dies intestate, but has surviving children who are also children of a surviving spouse, the spouse receives the first $30,000 of the estate plus 1/2 of the remaining estate (the rest going to the surviving children in equal shares)
Example: John and Jane are married with two kids, Sam and Lucy. John dies without a will, and having an estate valued at $230,000. Under PA intestacy rules, Jane would collect the first $30,000 then receive half of the remaining estate (Half of 200,000 = $100,000), making her total distribution $130,000. The other $100,000 would be split between the children equally, $50,000 going to each. Again, its important to note that if the children are minor children, the court will appoint a guardian/trustee over their money until they are adults. Under PA law, that guardian CAN NOT be Jane, so John’s dying intestate essentially takes away $100,000 from his family for their immediate care.
- If a decedent dies intestate, but has a surviving spouse and a surviving child, who is not the child of the surviving spouse, then the spouse and the child would each split the estate.
Example: John and Jane are married, with John having one child Sam, who is from another marriage. John dies without a will and an estate valued at $200,000. Under PA intestacy rules, Jane and Sam would each split John’s estate, with each party receiving $100,000.
- If a decedent dies intestate, without a surviving spouse then the distribution of the estate goes as follows: to children, to parents, to brothers, sisters, or their children, to grandparents, to uncles, aunts, their children and grandchildren, to the commonwealth of Pennsylvania.
Example: John is not married, and he has no children. He dies without a will with an estate valued at $200,000. Under PA intestacy rules, John’s parents, if alive, will split the estate equally. If the parents are not alive, you follow the the rule listed above.
This is just a sampling of the different rules that could effect you or your loved one’s estate if they die without a will. Since each situation is different, it is advisible that you speak with attorney regarding your rights and distribution status.
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Why do you need a will?
Posted on 17. Mar, 2009 by emmettjones.
Do you have a will or some sort of legally binding document explaining what is to happen with your assets after you pass away? If not, you should really be thinking about at least creating a simple will,unless you’d want to potentially have your property go to other people after your death.
What exactly happens if you don’t have a will? Lets look at some examples:
General Rule: In Pennsylvania, those who are without a will (or, “Intestate”) have their property pass by an intestacy statute. The intestacy statute simply looks at those relatives in closest relation to you, and disperses your property to that relative upon your death.
- Generally, if you feel compelled to leave your property to your favorite cousin after death, but you still have a brother who is alive? You need a will to specifically devise your property to your cousin, otherwise he would receive nothing upon your death.
- Unmarried people that co-habitate with another person would also need a will if they planned on giving their property to their partner. Again, the intestacy statute dictates that those relatives in closed relation to you receive your property. Without a legal marriage, your partner is not related to you and would miss out on any property disbursement from your estate.
- In situations where both parents are no longer living and their are minor children involved, sans a guardian being appointed by will, the courts would step in and appoint a guardian that would have control over all decisions in the childrens’ lives (i.e. health care, education, finances, etc.).
- In some states (i.e. Pennsylvania), spouses do not receive the entire share of the deceased spouse’s property upon death. Instead, in a situation where the deceased spouse had individually owned property and no will, the living spouse would take a percentage (The first $30,000 + 50% of what’s left in PA), and the rest of the property would be split amongst the children in equal shares. If the children are minor children, the court will appoint a guardian over their portion of the decedent spouse’s property. NOTE: In Pennsylvania, the courts WILL NOT appoint the surviving spouse as guardian.
Proper estate planning with an attorney can help you prevent these sort of situations from arising. If you’re interested in a free consultation, use the contact page. Feel free to peruse the site for more information regarding wills, estates, and trusts.
