Klenk Law

Dying With a Homemade Will in Delaware County, Pennsylvania

Posted on Mon Jan 5, 2015, on Estate Planning

Many Pennsylvania residents die without a Will. Many will die unexpectedly before they can prepare a Will, but most people simply just don’t get around to writing a Will. If you die without a Will in Pennsylvania, you are said to die “Intestate”, or without testamentary documents. It is not true that if you die without a Will in Pennsylvania that your assets pass to the state. Instead, a set of rules decide who is in charge of your estate and to whom your assets pass.

In some instances, Pennsylvania residents attempt to draft a homemade Will, believing they can clearly and legally express their intentions. Without an in depth knowledge of Will drafting, even clear and simple language can fail as ambiguous. Ambiguity in homemade wills leaves Leaving Pennsylvania Estates open to outcomes contradicting the drafter’s written intent. In order to highlight this point, we will take a look at a recent case before the Delaware County Orphans’ Court where a homemade Will failed and partial intestacy resulted.

In Zeevering Estate, Delaware County resident(GZ) passed survived by five children. His property included: a house held as a joint tenant with a right of survivorship, a red truck and $217,000 in cash. In his homemade will, GZ made two specific devises – one of his home and another of the truck to his favored daughter. Further, the Will stated, “The failure of this Will to provide any distribution to my children, Laura Bonner, Kathleen Archacki, and Jennifer Rios, is intentional.” A fairly simple, straightforward estate plan.

The result? Only 1 of his wishes materialized, the bequest of the red truck to his favored daughter. The bequest of the home failed because of GZ’s failure to understand a right of survivorship in the property. Surprising to most people, the $217,000 was split equally among the 5 children. The three children whom GZ specifically intended to leave out of the Will now shared in all GZ’s assets equally, aside from the truck and home.

How did this happen? In Pennsylvania, there is an axiom that a Court must not and cannot reform or rewrite a Will. If ambiguous, Courts are confined to what the Will says and not what might have been said. In this case, GZ failed to explicitly state what was to be done with the money in his estate. Required to follow precedent, the Court cannot make the gift the GZ failed to make. Instead, the $217,000 must pass via partial intestacy pursuant to the Pennsylvania Intestacy Statutes. Intestate succession is a default estate plan created by Pennsylvania legislators, and is utilitarian in nature. Intestate Statutes assume parents would want children to share their assets equally. For GZ this clearly was not the case but was the final the result.

Even in the face of specific language, axioms of Will interpretation can take precedence. The result in Zeevering is more common than most people think. Counterintuitive rules have the potential to upset even clearly written wishes. Hiring an attorney with a history in estate planning can ensure that your estate plan is realized.

Throughout our website, you may find more information about Probate, and the documents that make up various Estate Plans. Our firm focuses exclusively in the area of estate planning, probate, and the litigation surrounding estate planning and probate. If you need assistance with an Intestate Estate or with developing your Estate Plan, please call one of our Probate Lawyers or Estate Planning Attorneys for a free consultation. We have Estate Planning Attorneys in New Jersey, Pennsylvania, New York, Minnesota and Florida.

If you have further questions, feel free to contact us. Wills, Trusts and Estates, It’s All We Do!

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Delaware County, Pennsylvania

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