Do You Need a Will?

By Todd Allen Elliott, Esquire

(Latest revision, 5/9/2010)

First of all it should be noted that there is more than one way to plan your estate. There are trusts and wills and insurance policies and annuities, etc. The next few paragraphs address what will likely happen if you are a Pennsylvania resident and you die without making a will or a trust or without creating any other vehicle or mechanism to handle your affairs and dispose of your property at the time of your death.

A common question is, “If I die without a will, will the state get to keep all of my assets?” In most cases the answer will be no, but read on!

If you die in PA without a will (or another estate planning document or strategy), then you have died “intestate”. If you die intestate, the laws of intestate secession (found at 20 Pa. C.S.A. § 2101 through 2110) will determine how your property is distributed after death. Although there are some exceptions, generally speaking, if you die and leave a spouse and children, your spouse will be entitled to the first $30,000.00 of your estate and 1⁄2 of your remaining estate. Your children would be entitled to the other 1⁄2 of your remaining estate (if you have surviving children who are not also your spouse’s children, your spouse will not be entitled to the first $30,000.00, but will only be entitled to 1⁄2 of your estate. Your surviving children will be entitled to the other half of your estate). If you die and leave a spouse and no surviving children, your spouse would still be entitled to the same share as above (1st $30,000.00 plus 1⁄2 of the remaining estate), but now your surviving parents would be entitled to the other 1⁄2 of your remaining estate. If you die and are survived by your spouse, but have neither surviving children nor surviving parents, then your surviving spouse will inherit your entire estate.

If you die without surviving children, surviving parents or a surviving spouse, then your estate would be divided between your siblings or their children. If you have no siblings at the time of your death and no spouse, no children and no parents, then your estate will pass to your surviving grandparents (maternal and paternal) or their children (or their children’s children). If you die without surviving children, a surviving spouse, surviving parents, or surviving grandparents, then your estate will go to your uncles and aunts or their surviving children or grandchildren. If none of the relatives listed above survive you, then the Commonwealth of Pennsylvania gets your estate.

A will is also very, very important if you have minor children. Without a will a court may have to step in and decide who will take care of your minor children if they are left alone. A will would give you an opportunity to appoint someone you trust for that very critical task. Some people don’t mind if their estate is divided up as described above or if the courts decide who will be their children’s custodian. If you have other ideas about how your assets should pass and who should raise your children if they lose you, then you should probably make a will. If you do have minor children (or minor grandchildren) when you pass, it is also important to use a Will to name the person or persons who will manage their inherited assets if they should lose you while they are still minors. You should probably also consider giving someone you trust power of attorney and making an advanced healthcare directive (Living Will).

I routinely encourage my clients to make at least a Will, a General Power of Attorney and an Advanced Healthcare Directive (Living Will). Having an Advanced Healthcare Directive is important because it tells loved ones and medical professionals what kind of treatment you want (or don’t want) if you should become incapacitated and unable to communicate your healthcare preferences. Having a General Power of Attorney in place allows someone you trust to step in and make financial decisions and other non-healthcare related decisions for you at times when you are unavailable or unable to make those choices yourself. The alternative to a having a valid Power of Attorney could very possibly be guardianship proceedings, which can be very costly and will require a court hearing to appoint someone to handle your affairs for you. Guardianship at today’s prices can easily cost between $3,000.00 and $4,000.00. If you give someone Power of Attorney, it may help to save you and your loved ones a much bigger headache and expense in the future.

If you have any questions about any of the above, need more information or would like to make an appointment, please call Elliott Legal Services at (610) 738-7016 or send us an e-mail at wills@ElliottLegalServices.com.