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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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Assets that Don’t Need to Be Part of a Probate Estate in Pennsylvania

Assets that Don't Need to Be Part of a Probate Estate

If you have been named executor or administrator of an estate in Pennsylvania, you may have no idea of what that entails, or how much time and effort you’ll need to spend to settle the estate. You’ll have to prepare an accounting of the assets of the estate, notify all interested parties, pay all final debts and taxes, and oversee the orderly distribution of the estate. But not all of the assets owned by the deceased before death will necessarily become part of the probate estate.

The Types of Assets Are Not Included in the Probate Estate

One of the purposes of the probate process is to legally transfer property owned by the deceased, as he or she can no longer take the steps necessary to do that. Accordingly, if there’s property that was owned, in whole or in part, by the decedent, but no longer is, that property does not need to go through probate. How can that happen? Under property law, if property is owned “in joint tenancy,” upon the death of one of the owners, all right, title and interest in the property automatically goes to the other owners. It’s a common tool used to avoid the probate process—you title a home or a bank account jointly, and when you die, it automatically becomes the property of the other joint tenant(s).

Any financial instrument or asset that has its own designated beneficiary does not need to go through probate. For example, a life insurance policy, an IRA or 401k, or a “payable on death” bank account won’t have to be part of the probate estate.

Finally, any assets held in trust avoid probate. That’s because the property is not owned by the deceased, but by the trust.

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The Purpose of Title Insurance in a Real Estate Transaction

The Purpose of Title Insurance in a Real Estate Transaction

When you are buying or selling real property, one of the things your agent or attorney will typically discuss with you is the title insurance. You may think that, if you have a valid deed and have properly recorded it, you don’t have any concerns about title. That may not be true.

Understanding Title Insurance

Like other forms of insurance, title insurance is designed to protect you against financial loss. The financial loss that can be covered by title insurance relates specifically to title problems that arise and can include a variety of issues, such as:

  • Financial loss caused by the fact that the seller (transferor) did not legally own the property when it was sold
  • Financial loss resulting when there are outstanding liens on the property, including unpaid mortgages or other encumbrances that give creditors the right to take the property through a foreclosure action
  • Financial loss caused by interruptions in the chain of title, including instances where the owner of the property died, but the property was not legally transferred through the probate process
  • Financial loss caused by tax liens

If you have a policy of title insurance in effect and a lawsuit is filed related to any of the above issues, the title insurance company will be required to defend the action and must satisfy any judgments that arise. Without a policy of title insurance, your only recourse in such a situation would be to sue the other party to the transaction. That party may be unable to satisfy any judgment you obtain.

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Why You Need an Attorney at a Real Estate Closing

Why You Need an Attorney at a Real Estate Closing

For most folks, there’s no investment more substantial than the sale or purchase of a home. The transaction involves a substantial number of complex documents, from the purchase agreement to the deed, the mortgage, financing documents and title commitments. In a transaction of this magnitude, it’s just good sense to hire an attorney to ensure everything is in order. But you also want your lawyer to go to the closing.

Why You Have a Closing

The primary function of the closing is to ensure the simultaneous transfer of the property to the buyer and payment of the purchase price to the seller. At the closing, the buyer will typically make payment in a form previously agreed upon. If there’s still an existing mortgage on the property, the closing agent will prepare a check to pay off that mortgage from the proceeds of the sale, so that the buyer takes the property free and clear of the prior mortgage. At the closing, the seller will also sign the deed and give it to the buyer, thereby conveying possession of the property. The closing agent then registers a new deed with the appropriate local governmental office (usually a register of deeds).

The Benefits of Having a Lawyer at a Closing

In most instances, your lawyer will review the proposed closing statement before the actual closing takes place. However, you want your attorney at the actual closing to deal with any unanticipated contingencies, and to confirm that everything is as expected:

  • Identifying and addressing any potential cloud or defect on title
  • Ensuring that the deed provided is what was agreed upon
  • Verification that all promised repairs or modifications in the buy-sell agreement have been made
  • Making certain the seller doesn’t try to change any terms at the last minute, or try to back out without sufficient legal reason

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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.

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Factors That Can Affect the Validity of a Will in Pennsylvania

Factors That Can Affect the Validity of a Will in Pennsylvania

People do some pretty strange things when it comes time to divide the property of a loved one. It’s not uncommon for potential heirs to engage in wrongful conduct to gain advantage in estate matters. There are, however, ways that you can contest a will. Here are the most common factors that can be used to challenge the validity of a will:

  • Failure to meet formality requirements — In Pennsylvania, a will must meet certain technical requirements to be valid. It must be in writing, and it must be signed at the end of the document. Pennsylvania courts have ruled a will to be invalid because it was signed at the beginning of the document.
  • Misrepresentation or fraud — A will may be declared unenforceable if it can be shown that that testator (the person executing the will) was misled into believing it was something other than a will
  • Forgery — A will can also be rendered void if it can be proven that the testator never signed the will and that any signature on the will was forged
  • Undue influence — If you can show that someone named in the will exerted improper or undue influence on the testator, when the testator was in an intellectually weakened capacity. Undue influence in Pennsylvania requires that you show a confidential relationship between the person receiving a substantial benefit and the testator. The person may be a family member, caregiver or a person with power of attorney. Furthermore, there’s no requirement for undue influence that the testator lacked capacity, only that the testator’s “reasoning power, factual knowledge, freedom of thought and decision, and other characteristics of a fully competent mentality” be impaired.
  • Lack of capacity – For a Pennsylvania will to be valid, the testator must have been “of sound mind.”

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Protecting Your Estate with a Will in Pennsylvania

Protecting Your Estate with a Will in Pennsylvania

Regardless of the size of your estate, you want to make certain your property passes with minimal stress to your loved ones and in accordance with your wishes. One of the best ways to do that is by drafting and executing a “last will and testament.”

Uses of a Last Will and Testament

A valid will can be used to accomplish a number of objectives, including:

  • The orderly distribution of your assets, as well as payment of all final obligations
  • The designation of a person to act as guardian of your minor children
  • The designation of a person to manage any assets or property that you leave to minor children
  • The creation and funding of a trust to benefit loved ones
  • Charitable giving

Though you are not legally required to retain an attorney to prepare and execute a will, it’s money well-spent to do so. An attorney can help you take the right steps to minimize the risk of misunderstandings by beneficiaries—your heirs will be thankful if you use a lawyer to ensure clarity in the distribution of your property.

Pennsylvania does not require that a will be notarized, but does mandate that the will be signed in front of at least two witnesses, and that the witnesses sign the document as well. It’s often easier, though, if you have the will notarized, because then it will be considered to be “self-proving.” If a will is not “self-proving,” there are additional steps that you must take during the probate process to demonstrate the legitimacy of the will.

Other requirements for a valid will in Pennsylvania include:

  • The person executing the will must be at least 18 years old
  • The person executing the will must be of sound mind
  • The will must be in writing

Contact Our Experienced Estate Attorneys

Send us an e-mail or call our office to schedule an appointment to learn how we can assist you with your estate planning needs. Evening and weekend consultations are available upon request.

ADDRESS :

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

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