Estate Planning “FIRE DRILL” for Families
A fire drill protects your family, your possessions, and your home if an emergency should happen. But have you made a plan to protect your family if something should happen to you? Have you taught your family how to cope? Do you have the correct legal documents? Do your loved ones know where your important papers are located? These are all important questions that should be answered to help educate your survivors before they become survivors.
Legal studies indicate that the majority of American adults have no Will and have never discussed estate planning with their loved ones. The reasons cited by adults without Wills include that it isn’t a priority; it’s not necessary; it’s too complicated; it’s too expensive and too time consuming; and the belief that their spouse and/or children will automatically receive their assets upon their death. These are all inaccurate assumptions.
There are three essential estate planning documents you should have in place: 1) Last Will & Testament, 2) Durable Power of Attorney for Finances, 3) Durable Health Care Power of Attorney and Health Care Treatment Instructions (Living Will).
Last Will & Testament
This document is a legal expression of your wishes as to the disposition of your property upon your death. It names the beneficiaries of any monetary share and may appoint a Guardian for minor children. The document will also appoint a Personal Representative that will be responsible for finalizing your affairs.
Any person 18 or over who is of sound mind may make a Will. Every Will must be in writing and must be signed by the Testator at the end thereof. A Will need not be witnessed nor notarized although it is highly recommended.
If you die without a Will in Pennsylvania, the Pennsylvania Intestate Succession Laws determine the distribution of your assets. Although frequently assumed, no assets are automatically forfeited to the State. However, not always do all assets transfer to a surviving spouse. Depending on the facts, surviving children and even surviving parents may receive a share. The State’s Intestate Succession Laws may not coincide with your final wishes as to the distribution your assets upon your death.
Durable Power of Attorney for Finances
If you are incapacitated and you do not have a Durable Power of Attorney for Finances in place, a Court hearing will be required first to determine your incapacity. The Court will then appoint a guardian for you if you are deemed incapacitated by the Court’s standards. The Court will not necessary appoint a family member! The Court may appoint a Trust Department as guardian. Without having this document in place, you risk your financial future by placing the responsibility in the Court’s hands and you also will incur unnecessary legal fees and bank fees.
By including this document in an estate planning portfolio, individuals can choose their own “Agent” to handle their financial affairs if they become permanently sick or disabled. The document also allows an Agent to make gifts to family members for Medical Assistance and Federal Estate Planning purposes.
Health Care Planning
A Durable Health care Power of Attorney allows you to name a person to make medical decisions on your behalf if you are unable to make or communicate your own health care/medical choices for yourself. Health Care Treatment Instructions (Living Will) describes the type of life sustaining treatment you do or do not want if you become permanently unconscious. Having these documents in place avoids Court supervision of your personal health care decisions. You can also decide whether or not to donate your organs.
James A. Ritter is an estate planning attorney located in Gross McGinley’s Emmaus Office. Practicing law in the Lehigh Valley for over three decades, he guides families in planning for their financial and health care futures.