Klenk Law

What Can’t I Do With my Philadelphia Will?

Posted on Tue Jun 3, 2014, on Estate Planning

A well-drafted Philadelphia will can appoint a responsible executor to manage your estate, name a responsible guardian to care for your underage children and ensure that your assets are divided as you wish at your death. While the will can address many of your goals, there are certain things that it cannot do, which is the principal reason why developing an estate plan must include more planning than simply drafting a will.

A Philadelphia will cannot do the following:

  • Your will cannot transfer ownership of non-probate assets that pass by contract, such as life insurance and IRAs.
  • Your will cannot transfer assets that pass by operation of law, such as real estate you own jointly with a right of survivorship with someone else. For example, if you own a Philadelphia home as a joint tenant with a right of survivorship with your brother, then at your death your brother has a right to claim your share even if your will says that the house passes to your spouse.
  • Your will cannot void your spouse’s right of election. If you die a resident of Philadelphia County, your surviving spouse has the right to claim a share of your augmented estate rather than accepting the amount provided by the will. If you do not have a prenuptial agreement where your spouse waives the right to elect, you cannot disinherit your spouse by excluding the spouse from your will.
  • Your will cannot transfer ownership over assets you have used to fund a revocable living trust or an irrevocable trust. Those assets will pass at your death according to the terms of the trust, not your will.
  • Your will cannot effectively state your funeral instructions. As a practical matter, your will is not examined until after the funeral, normally too late to state your wishes. The best way to make sure your funeral is done the way you wish is to plan and pay for it yourself, or to give your family separate written instructions.
  • Your will cannot reduce the Pennsylvania Inheritance tax nor the federal estate or generation skipping taxes due at your death. Other estate planning techniques can reduce these taxes, but if you limit your estate plan to only a will, there will be no reductions.
  • Your will cannot avoid probate. Probate with the Philadelphia Register of Will is neither cumbersome nor expensive, but your estate planning goals still might include avoiding probate. If so, a will is not the correct estate-planning tool.

A will can be the central pillar of a Philadelphian’s estate plan, but other documents might be needed to supplement your estate plan. Consult with a Philadelphia estate-planning attorney to see what pieces are needed to reach all of your estate planning goals.

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