A will is a document that can legally insure that an individual’s desires as to how his property should be distributed after death will be repsected. Having a will, alone, does not guarantee that those wishes will be honored. The will must meet the requirements of Pennsylvania law. The attorneys of Rudinski, Orso and Lynch understand the importance of your last worldly requests and the impact those decisions can have on surviving loved ones.
In some states, an entirely handwritten will is legally valid. However, due to the complexity of both state and federal law and the wide variety and type of property most individuals hold in modern times, a properly drafted will obtained with a lawyer’s supervision is prudent to ensure the will is found to be held legally binding. These are sometimes known as one’s “Last Will and Testament.”
“Living Wills,” in comparison, are documents insuring that someone is not kept alive by artificial life support in certain circumstances – usually severe disability or terminal illness. They are governed by state law, and are documents entirely different from a Last Will and Testament.
“Mutual Wills” are the wills of two individuals, usually spouses, in which they each declare identical distributions of their respective estates. “Joint Wills” are very similar; however, here there is one set of documents jointly signed by both individuals.
Wills not only distribute property; they can also provide for how a decedent’s personal affairs should be handled after his death. For example, extensive instructions can be provided for funeral services, and personal messages of sentimental value and comfort can be lovingly conveyed.
Wills begin the probate process. Probate begins with the filing of a formal, original will at the office of the appropriate probate clerk. Depending upon how the will has been drafted, and if there has been prior estate planning, the probate process can be lengthy and complicated or streamlined.
The person named in the will to be responsible for overseeing its administration is legally known as the “executor”. Once the probate court approves the executor, this person undertakes the duties of distributing the decedent’s estate according to the will’s provisions.
The executor may or may not be paid a fee for the services they render. After the executor has gathered together all of the property held by the decedent’s estate, paid all the debts, and distributed the remainder, the executor will be excused from further duty upon formal application to the probate court and the process is concluded. The will has done its job, and the original document will remain within the public records of the probate clerk for an indeterminate amount of time. For example, the original Last Will and Testament of Davy Crockett remains filed in the probate records of the Bexar County Courthouse in San Antonio, Texas, in walking distance from the Alamo.
“Will contests” occur when someone suspects that the will filed with the probate court does not accurately reflect the true wishes of the decedent regarding how his property should be distributed upon his death. Many wills attempt to avoid these challenges by including “no contest provisions” in their wording.
These provisions disallow any distribution of property to a beneficiary who challenges the validity of the will itself. A challenger is cut off from any inheritance merely by the act of contesting the document. Understandably, while these provisions are not necessarily successfully respected if taken to trial, they are quite effective in weeding out all but the most strident and committed challengers.
Together with trusts, wills form the most basic documentation needed for effective estate planning. Attorneys, accountants, and financial planners work with their clientele in minimizing estate and gift taxation via not only distribution provisions of a will, but its method and manner of bequeathing property, as well.
Wills should be drafted by an attorney, and for all but the simplest estate, an experienced probate attorney will be necessary. The distribution of both personal and real property via this legal document will be impacted by state probate law, state real estate law, and both federal and state tax law – at the minimum.
An improperly drafted will result in all properties being distributed according to the intestacy statutes of the state in which the decedent resided at the time of death. These state laws may not reflect in any way the true wishes and desires of the individual; however, without a properly drafted will, the state intestacy statutes will control disposition.