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The Difference between a Living Will and a Health Care Power of Attorney

Living-Will

When you are putting together an effective estate plan, one of the most important decisions you’ll have to make will center on the type of medical care you receive, should you be rendered incapable of making your own decisions. For example, you may be averse to procedures that keep you alive by artificial means.

In Pennsylvania, there are two different types of legal instruments that address medical care and medical decisions in these situations—the living will and the health care power of attorney. They’re not exactly the same, though. Here’s an overview of both.

The Living Will

A living will customarily specifies the kinds of medical care that you want or don’t want in the event of a medical emergency. Living wills are often used to address concerns about the use of life support or resuscitation. As a general rule, the living will does not name a person to act as your medical power of attorney or make medical decisions for you. It’s usually limited to specific instructions about the care you want to receive.

Health Care Powers of Attorney

A health care power of attorney specifically designates a person to make medical decisions if you cannot. It can include specific instructions or wishes, but confers a general power on the designated person. The living will is generally viewed as a limited form of a health care power of attorney. Accordingly, if you have a health care power of attorney, and it identifies the type of care you want to receive (or don’t want to receive), a living will may not be necessary.

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Send us an e-mail or call our office to arrange a meeting to discuss your estate planning needs. Evening and weekend consultations are available upon request.

The Difference between a Will and a Trust

People going over a document

If you’ve decided that it’s time to put an effective estate plan in place, to properly prepare for the orderly distribution of your assets in the event of your death, you’ve likely seen or heard references to the use of certain dispositive instruments—wills and trusts. But you may not have a clear understanding of the difference between the two estate planning tools and which might be best for your situation.

What Is a Will?

Also known as a “last will and testament,” this document includes specific instructions with respect to the distribution of your assets, as well as your debts. It’s also customary to include designation of a guardian for any minor children in your will. However, your will only goes into effect in the event of your death. Your will cannot be used to transfer property or institute any other legal action during your lifetime.

If you use a will to convey the property in your estate, it may be subject to probate. Your heirs may choose not to take your will through the probate courts, but any interested party always has the right to seek the authority of the probate court to settle your estate.
The preparation and execution of a will is typically a much simpler process than a trust, so there’s usually less expense upfront. However, because of the probate requirement, your heirs can end up paying more after your death.

What Is a Trust?

In essence, a trust is a separate legal entity that can hold property. The trust is created by a trust document, and names a trustee. Because the trust is a separate legal entity, you no longer own any property that you transfer to the trust. Because the probate process is set up to resolve the transfer of your property, and because you no longer own property placed in trust, any property placed in trust avoids the probate process.

A trust can be “inter vivos” or testamentary. An inter vivos trust goes into effect during your lifetime, allowing you to transfer assets before your death. A testamentary trust is created upon your death, with assets typically transferred to the trust by your will.
The preparation and execution of a trust is a far more complex process than the preparation of a will. Accordingly, there’s typically more upfront expense involved. However, because property transferred into a trust escapes probate, there’s less expense to your heirs after your death.

Contact Our Experienced Estate Planning Attorneys

Send us an e-mail or call our office to arrange a meeting to discuss your estate planning needs. Evening and weekend consultations are available upon request.

What Happens If You Die without a Will in Pennsylvania?

What Happens If You Die without a Will in Pennsylvania?

There’s a common misperception that, if you die without a will in Pennsylvania, no one will know what to do with your property and your heirs will have to fight it out in probate court. To the contrary, Pennsylvania, like other states, has laws that specifically provide for the distribution of assets when a person dies without a will. Such a person is considered to have died “intestate,” and the distribution of the estate is governed by Pennsylvania’s laws of intestacy.

Contrary to another common myth, the laws of intestacy do not give all the deceased’s property to the state. Here’s an overview of the general distribution set forth in the Pennsylvania intestacy laws:

  • If there are no surviving children — If you die leaving a spouse, but have no living children or parents, your spouse is entitled to the entire estate. If you have no surviving children, but a parent was alive at the time of your death, your spouse gets the first $30,000 and half of any residuary estate. Surviving parents will share the rest of the estate.
  • If there are surviving children — If your spouse survives you, and all of your surviving children are also the children of your spouse, your spouse will get the first $30,000, plus half of any remaining property. If, however, you have any surviving children who are not the offspring of your surviving spouse, your surviving spouse only gets half of the estate (and is not entitled to the first $30,000).
  • No surviving spouse — If your spouse predeceased you, your entire estate will go to your children. If you have no surviving children, the estate will be divided equally between your parents. If you have no surviving spouse, children or parents, the estate will go to your siblings or their children. If you had no surviving siblings, any living grandparents may share the estate (half to paternal and half to maternal grandparents). If there are no grandparents, the estate goes to your uncles, aunts and their children and grandchildren. Only if there are no such surviving relatives will the estate go to the Commonwealth of Pennsylvania.

Contact Our Experienced Estate Planning Attorneys

Send us an e-mail or call our office to schedule an appointment to discuss any legal issue affecting your business. Evening and weekend consultations are available upon request.

ADDRESS :

  • B&D Law Group 1110 Kennebec Dr, Chambersburg, PA 17201

  • Call for consultation (717) 264-5194