The Five Ws
A Will is the single most important document in any estate plan. The information below answers the most common questions regarding Wills, including explaining how they work and why most adults should have a Will professionally drafted without delay.
Below are common questions regarding Wills. To view clear, concise answers, simply click on the relevant questions.
Every adult needs a Will. It is imperative if you want to have any control over the manner in which your assets are distributed after your passing. If you have minor children or dependents with special needs (also see our article on Special Needs Trusts), a Will is the best way to ensure that they are cared for properly. If you are a single parent, a Will allows you to guarantee that your family members remain in your children's lives.
Young people in particular may think that a Will is unnecessary, but consider that, according to the Center for Disease Control, 121,087 people ages 25 to 45 died in the United States in 2007. Most of them did not have a Will.
During a time of acute grief, your loved ones are relieved of the additional burden of having to guess your wishes. Your children and other dependents receive the care you deem best for them. Your beneficiaries are able to receive your gifts with a minimum of bureaucratic hassles. Furthermore, you obtain the peace of mind that comes with knowing that your wishes will be carried out and that you did your utmost to make a difficult time easier for those who most important to you.
When you finalize your Will, you will assign an executor and most likely a substitute executor. If you have dependents, you will also choose a guardian and a substitute guardian for them. Each of these individuals must be informed of your decision and formally agree to accept the role you chose for them by signing the relevant section of your Will. Each of these positions is defined below.
Executor (Executrix if female): Otherwise known as your personal representative, this is the person who will be in charge of implementing the directives in your Will. The Executor's responsibilities may include:
- Offering the Will for probate (explained below);
- Gathering your assets;
- Distributing property to your beneficiaries;
- Facilitating bequests to charitable organizations as directed in the Will;
- Negotiating and arranging payment of any outstanding debts; and,
- Ensuring that your estate's taxes are paid.
An experienced estate attorney such as Gary Stewart Seflin can administer the estate and efficiently handle these often challenging tasks for the executor. Benefits of choosing an experienced attorney include ensuring that all relevant laws are satisfied and that as much of the estate as possible is distributed to the beneficiaries rather than to creditors.
Substitute Executor: This is the person who performs the duties of the executor if the primary executor is deceased, ill or is in any way unable to perform these functions.
Guardian: If you have minor children or dependents with special needs, the guardian is the person who will care for them after your death. Choosing a guardian is one of the most important decisions you will make when drafting your Will. You need to carefully discuss the responsibilities with the person or persons you choose.
Substitute Guardian: The substitute guardian(s) will fulfill the obligations of the primary guardian if the latter is unable to do so.
Properly drafting a Will requires specialized knowledge of federal and state estate and tax laws. It requires skills and judgement that come with experience and professional training. If your Will is improperly drafted, your estate may not be distributed as you choose and an undue burden may be placed on your heirs. Your Will may even be declared invalid, leaving your loved ones in jeopardy of having their economic fate decided by arbitrary laws enacted by the General Assembly decades ago.
While there are standardized kits to assist with writing Wills, estate planning is highly individual. Many of the kits may not even result in a document that is in accordance with the laws of your state.
For these reasons, it is important to enlist the services of a skilled and experienced profession. With 3 decades of experience, Gary Stewart Seflin writes Wills tailored to the needs of a wide range of clients in Pennsylvania, and he can ensure that your wishes are carried out.
A Will, more formally known as a Last Will and Testament, is the cornerstone of your estate plan. It is a legal document which performs the following basic functions:
- Appoints an executor of your estate;
- Defines the powers of the executor;
- Determines who will inherit your property;
- Addresses how and when your property will be transferred to your beneficiaries; and,
- If relevant, appoints a guardian and a trustee for your minor children.
Wills need to conform to very specific federal and state laws. The laws exist to protect you, the person executing (signing) the Will (otherwise known as the testator), and your beneficiaries. The best way to ensure that the Will meets all necessary requirements is to have it drafted by a knowledgeable estate attorney.
To prepare your Will, you need to know the following:
- Your net worth, including securities, bank accounts, value of all real property including your home, automobiles, jewelry, pensions, IRA's, 401K or 401b plans and insurance;
- Who you want to appoint as your executor and substitute executor;
- Your beneficiaries, who are the people who you want to inherit
- Your choice of guardians and substitute guardians for any minor
- Detailed knowledge of federal and state estate law, or the attorney who
you want to draft the Will on your behalf.
When you die, many of your assets must go through probate in order to be transferred to your beneficiaries. Your Will determines how your assets are handled in probate, ensuring that they are distributed according to your wishes. In Pennsylvania, your Will is filed with the Commonwealth through the office of the Register of Wills in the county in which you reside. The Commonwealth then officially recognizes the executor of your estate.
There are filing fees associated with opening an estate; the amount depends on the value of the probate assets. In Pennsylvania these fees are relatively low – you may view the fee schedule here.
The only assets which do not go through probate are:
- Assets such as life insurance benefits, annuities, IRAs and some retirement plans which have named beneficiaries, because the benefits pass directly to said beneficiaries;
- Assets owned jointly by a spouse, or with others when there is a right of survivorship, since such assets pass directly to the survivor;
- Assets held in trust such as a Living Trust or a Special Needs Trust; and,
- Certain time deposits, such as a Certificate of Deposit or Savings Bond where the CD or Bond is “payable on death” or “POD”.
If you die without a valid will, your estate is “intestate”. It must still go through probate, and the probate court appoints an administrator, who may be someone other than whom you would have chosen.
The court then pays all outstanding debts and death expenses out of the estate's assets. Without a Will and an experienced attorney to negotiate on your estate's behalf, it is likely that far more of the estate's assets will be paid to creditors than would otherwise be necessary.
The court then follows a preexisting formula to divide the estate among relatives. Nothing may be inherited by close friends nor given to charities. The division of your estate may be significantly different than you would wish.
If no relatives are found, then the entire estate goes to the government.
Additionally, heavy taxes are levied against any estate which becomes intestate. Much of the assets you worked a lifetime to earn are lost in the process. This is a compelling reason to write a Will without delay.
In Pennsylvania, a Will is not filed until after a person dies, and is completely confidential until that point. Therefore, you may change it at any time. In fact, as discussed above, it is advisable to periodically review your Will. As your attorney, Gary Stewart Seflin would always be available to discuss modifying your Will.
In addition to a Will, it is highly advisable to have a Living Will, which is a legal document which details the way you wish to be cared for should you be rendered incapable of expressing your wishes due to extreme injury or illness. Through it, you also may appoint a personal representative to make necessary healthcare decisions on your behalf. Read more about Living Wills here.
If you wish to bequeath assets for the care of someone with special needs, you should consider having your attorney prepare a Special Needs Trust. Bequeathing assets directly to such an individual through your Will could result in the person losing much needed government benefits, and most of the inheritance could end up in the hands of the government. Please see our detailed article on Special Needs Trusts for more information.
In rare cases, such as when you own property in more than one state, it may make sense to consider a Living Trust. Beware, however, that there are many scams tricking people who do not need them into wasting resources on Living Trusts. You may read more about them here.
A trusted, experienced estate planning attorney such as Gary Stewart Seflin can help you decide which documents make the most sense for your personal estate.
For many people, a Simple Will is sufficient. If your estate is worth less than $1,000,000.00 and you are not creating any trusts, a Simple Will may suffice to allow you to appoint an Executor, handle the distribution of your property, and specify guardians for your dependents.
A Complex Will is needed when there are trusts involved, or when the estate is valued at over $1,000,000.00, at which point federal and state Estate Tax may apply. It is critical to have an attorney experienced with inheritance and estate taxes handle a Complex Will.
Wills are much more affordable than most people expect, particularly if you choose a Simple Will, which is sufficient in most cases. When you take into account the costs to the estate if it is intestate, obtaining a properly drafted Will saves money.
People often think that there is always more time to write a Will. It forces people to think about death, which is understandably difficult, so people put it off. In reality, no one can ever know when end will come. Consequently, most Americans die without a Will in place.
Writing a Will cannot wait. It is important to draft one as soon as possible in order to protect your estate and ease the future burden on your loved ones.
Your attorney can help you decide when you need to update your Will. Some circumstances in which you may need to modify your Will include when:
- Federal or state law provisions regarding wills change;
- Any of your beneficiaries pass away, become incompetent or reach majority;
- Your resources change substantially;
- There is a change in your marital status;
- You have a child;
- You move to a different state;
- Your assets change due to a promotion or a new job, perhaps you sell an investment for a large profit, or you receive a significant inheritance;
- You want to change the executor or guardians listed in your Will; or,
- Your wishes regarding how your estate is handled change in any way, due to divorce, death of a beneficiary, estrangement, etc.
In order to make sure your Will complies with complicated legal regulations and that your wishes are followed, you should get your Will prepared at the offices of an experienced estate planning attorney such as Gary Stewart Seflin.
A copy of your Will should be kept on file with your attorney. Your copy should be stored, along with other important documents, in either a safe deposit box at your bank, or within a fireproof and waterproof box in a secure location of your home.
You need a Will to:
- Ensure that your wishes are followed after you die;
- Guarantee that someone you trust is in charge of your estate;
- Specify how you want your assets distributed;
- Avoid unnecessary costs to your estate which would be incurred if it
- Appoint the guardian of your choice for your minor children;
- Protect your loved ones from the burden of trying to guess your wishes; and,
- Give yourself peace of mind.
Estate Planning is too important for yourself and your loved ones to let anyone other than an experienced Estate Attorney handle your affairs. To arrange a free consultation with Gary Stewart Seflin, Esquire, call 610-892-9700 or fill out our Contact Form here.