Why Do I Need An Attorney For a Will?

As Mark Twain once pointed out, we can all be certain of death. Given that certainty, it just makes good sense to prepare for it. In fact, the preparation of a blueprint to insure that your wishes are carried out upon your death is one of the most important things you can do for your loved ones and for yourself. To help you plan and prepare, contact our offices at 215-362-2474 or info@dbyd.com to schedule an appointment with one of our attorneys who specializes in estate planning. You will be given advice regarding the drafting of a suitable Will, the options available in drafting a Living Will, the different types of Powers of Attorney, and other types of documents and instruments which may be necessary to insure that your “instructions” are followed.

Many people who consult with us believe that “estate planning” is only for the wealthy. This is simply not the case. If you own anything, you have an “estate.” The planning is necessary in order to insure that when you die, your estate passes in the manner and to the persons and/or entities whom you have chosen. Additionally, you will likely wish to minimize the amount of taxes which may be owed as a result of any transfers.

Regardless of the size of your estate, the foundation of an estate plan is your Will, more formally known as a Last Will and Testament. The Will is critically important because it provides you with the opportunity to clearly state your wishes regarding the disposition of your property and to name the persons whom you believe are best able to implement your wishes.

We often hear people say, “I know I need a Will because if I die without one, the State will take everything I own.” This, too, is incorrect. Generally, the estate of a person who dies without a Will is distributed to family members. This distribution is controlled by a rigid formula established by a Pennsylvania statute (the “Intestacy Law”). However, it is very rare that a person would choose the same distribution as the Intestacy Law provides. Under the Intestacy Law, relatives of a person who dies without a Will receive a certain fixed percentage of the estate, regardless of your individual wishes, any special circumstances, or special family situations.

Furthermore, if you die without a Will, you are entrusting control of your estate to persons in whom you may not have the greatest confidence. More importantly, possessions, money, and real estate may be transferred to individuals whom you wish to exclude as beneficiaries of your estate.

Your Will, in addition to setting forth your wishes regarding distribution, will also name a person or persons to serve as your “Executor.” It is the Executor’s job to collect the assets of the estate, pay any debts, calculate and pay any taxes, and then make the distribution to your beneficiaries. While the job of Executor is, more often than not, straight-forward, it is important to name one or two responsible family members or friends who will conscientiously assume the responsibility. Before naming an Executor, we recommend that you have a discussion with whomever you intend to name to make sure they are willing to act in that capacity. Although a named Executor has the option not to serve in that capacity if he is “unwilling or unable,” it is a good idea to obtain that person’s agreement at the time the Will is created.
When formulating your thoughts regarding distribution, we consistently advise that you prepare your Will based on today’s circumstances, not upon those you anticipate five or fifteen years in the future. In other words, you should formulate your Will as though you are dying tomorrow. Basing your Will upon future circumstances which may never exist is simply not a good idea.

It is important to know that a Will has no legal effect and means nothing until the time of death. If you wish to leave instructions for your loved ones and medical caregivers regarding the type of medical treatment you wish to receive when you are too ill to make those decisions, you will need to execute a Living Will. For example, if you are in a coma for a long period of time and do not wish to be kept alive via a feeding tube or other extraordinary means, you will have the opportunity to say this in your Living Will. In addition to executing a Living Will, you may also wish to execute a Medical Power of Attorney which gives a person or entity of your choice the power to make medical decisions for you at such time as decisions need to be made.

You may also wish to execute a general Power of Attorney which will allow an individual or entity to make decisions about your financial well-being, including utilizing funds for your care. A Power of Attorney can be “Durable” (unlimited as to whether you are or are not ill) or “Limited” (limited to those times when you are too ill to make financial decisions.) These types of instruments are very powerful, and you will need to discuss the pros and cons of executing such a document with your attorney.

Many of our clients who have put off their estate planning are extremely proud and gratified when it is “done.” However, it is important to realize that estate planning is an evolving process. As intentions change, as assets change, as families grow or shrink, as health changes, a Will, a Living Will, and Powers of Attorney should be re-evaluated so that they continue to be an up-to-date statement of a client’s wishes.

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