In considering life and death, everyone needs to plan for the future.
The legislature has provided an estate plan, but for most people, it is inappropriate as well as inefficient. We recommend that every adult — no matter what age — have:
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• Power of attorney
• Living will
• Collection of thank you cards.
It is important that these documents, which are simply tools to implement your estate plan, be prepared by competent local counsel who can meet with you so they can adequately and effectively carry out your wishes.
There are many internet companies who will offer to collect a fee for providing templates, but these are not necessarily consistent with Pennsylvania and almost never comply with your actual plans.
Moreover, the terms of service for many of these accounts especially provided that they may not be relied on.
Usually a will is the prime motivator for estate planning. This document says what happens to many of your assets after your death.
In some states, the probate process is arduous, expensive and lengthy so that people ordinarily avoid probate with a living trust; however, in Pennsylvania, the probate process is streamlined and “user friendly,” so a trust is not usually necessary.
There are some circumstances which suggest a trust (such as owning non-Pennsylvania real estate or needing someone to follow a plan for managing property).
A will only transfers property that is owned by you in your individual name. Jointly-owned property and beneficiary-designation property, such as retirement accounts and “ITF” bank accounts, pass by the beneficiary designation. If plans change it is important that the beneficiary designations as well as the will be changed to reflect that.
Power of attorney
A power of attorney provides for some trusted person to make decisions for you. There are special rules in Pennsylvania governing powers of attorney and describing powers that may be given, but if you do not have a power of attorney, the legislature requires that you seek the appointment of a guardian, an expensive, time consuming, sometimes embarrassing process which results in your losing the right to make decisions if the Court appoints a guardian for you.
If you have written the power of attorney, you may always change your mind and cancel one appointment in favor of another. You may also limit or broaden the decisions an agent can make, while a guardian’s powers are set by law and outside your control.
A living will is a document that often authorizes someone to make day-to-day medical decisions when you are unable, as well as making decisions at the end of life. Without a living will, these decisions may not be made the way you would have wished; you may receive treatment you would not have wanted and the person you feel best equipped to express your wishes might not be allowed to do so.
Thank you notes
In 40 years of practicing trust and estate law, the problem arising most frequently in a family is hurt feelings by heirs when more than one wants a particular item with sentimental value.
If you have an old brooch that belonged to your grandmother and you want a particular grandchild, niece or daughter to have it, and it would give you pleasure to think of them wearing it, think how much more pleasure you would have from seeing them wear it now.
If there are family items that you want to pass to particular persons, do so while you are alive, so you can have this enjoyment and the estate can be spared the controversy of figuring out what you wanted to do (and possibly eliminating inheritance tax).
Make these gifts, and collect thank you notes.