Klenk Law

Last Will and Testament

If you die without a Will then your estate is considered “Intestate.” Being Intestate means that the State, not you, decides how to distribute your property. Every state has its rules, and we have provided Guides to the New Jersey Rules of Intestacy and the Pennsylvania Rules of Intestacy. Consult with an experienced Probate attorney about your particular state’s rules.

What is a Will?

A Last Will and Testament is perhaps the most important legal document the average person will ever sign. A Will is an instrument that, upon your death, controls who gets your property, who will be the guardian of your children, and who will manage your estate. A Will is limited to your probate assets and has no control over jointly held assets or with a beneficiary designation. The people or entities who receive your assets are known as Heirs or Beneficiaries.

  • Example: Let’s say you are a Philadelphia resident owning a term life insurance policy. Your Will states that all life insurance proceeds pour into Dynasty Trusts to help protect your children from divorce. You are concerned that your daughter’s husband in New York might divorce her and take the proceeds. But, you have forgotten that your life insurance beneficiary designation names your sister in Cherry Hill, New Jersey as beneficiary. You did this when your daughter was younger but never changed the name. At your death, the Will is filed in Philadelphia giving your executor full power over your probate assets. Your life insurance is not a probate asset as it names a beneficiary. Your sister can take the life insurance and not share any portion with your daughter.

What is the Purpose of Will?

A Will’s primary objective is to dictate where your probate assets pass at your death. A Will is about property ownership, but it should also be about Asset Protection. A Will’s purpose can also be about naming a Guardian for your minor children.

Without a Will, the state’s Intestacy Rules decide where your assets pass. Your wishes are ignored. Your Will allows you to select who receives your things at death rather than the State. Though it is possible to leave some assets through Beneficiary Designations or Joint Ownership, a Will gives you much more flexibility. A Will allows you to leave assets in Dynasty Trusts, Bypass Trusts or other Irrevocable Trusts sheltering the inheritance from the Beneficiary’s possible divorce or creditors. The Will is also an excellent tool to create trusts to help keep assets within the family and away from son-in-laws and daughter-in-laws.

  • Example 1: Mr. Jones is a single man living in Doylestown, Pennsylvania and wishes to leave his house to his daughter, who also resides in Doylestown. He believes that his son, living in Sarasota, Florida, has no need for the home. He tells both children his wishes but has no Will. Mr. Jones dies. Because he has no Will, his kids must now open an Administration with the Bucks County Register of Wills. The Pennsylvania Rules of Intestacy apply, dividing Mr. Jones’ assets between his two children. The son petitions the Bucks County Orphans’ Court for an order to sell the house. The judge will grant this order. The proceeds are divided equally between the children. Mr. Jones’ wishes are not respected because he failed to retain a Bucks County Estate Planning Lawyer to draft a Will. Had he signed a Will, the house would have passed to his daughter.
  • Example 2: Ms. Smith is a married woman without children residing in Gloucester County, New Jersey. She has a 1/2 interest in the family farm, as Tenants in Common with her brother. She wants this 1/2 interest to stay in her family. Her husband knows this as does her family. The family and husband discuss the plan often. Ms. Smith dies without a Will. Ms. Smith’s husband opens her estate as an Administration with the Gloucester County Surrogate. The New Jersey Rules of Intestacy apply. The 1/2 interest passes to her husband, who refuses to give the land to Ms. Smith’s family. He never really cared for his wife’s family, so he instead gives the 1/2 interest to the Hells Angels motorcycle club. The Hells Angels now own the 1/2 interest. Had Ms. Smith had a Gloucester County Estate Planning Attorney draft a Will, this problem would have been avoided.

What Are The Requirements That Make a Will Legal?

States rules covering Will execution vary, but there are a few universal rules:

  1. Eighteen Years of Age and Sound Mind: The person signing the Will cannot be mentally ill or disabled and must be acting of his or her free will, without undue influence.
  2. Witnesses: Pennsylvania does not require witnesses at Will’s execution, but most states require two witnesses to watch the signing where the person declares the document to be his Will, and then sign as witnesses. The rules about who may or may not serve as witnesses vary.

In most states, you will want your Will to include a Self-Proving page. This page is notarized and then allows the executor to file the Will without the witnesses being present.

Types of Wills:

What is a Simple Will?

A Simple Will is not necessarily “simple.” A “Simple Will” only means that all assets pour outright to beneficiaries without a protective trust. So a Will that includes a Dynasty Trust or Credit Shelter Trust providing protection from divorce, creditors, or doing tax planning is not a Simple Will. These Wills are called Complex Wills.

  • Example 1: Mr. Smith of Philadelphia had his Philadelphia Estate Planning Lawyer draft a Will making 1,000 separate outright gifts to his family, charities, and friends. The Will is over 100 pages long. Mr. Smith’s Will is a Simple Will, as all assets pass outright to heirs.
  • Example 2: Ms. Jones of Haddon Heights, New Jersey has her Camden County Estate Planning Attorney draft a Will putting $10,000 into a Third Party Special Needs Trust for her grandson and all other assets to the Camden County SPCA. Her Will is only four pages. Ms. Jones Will is a Complex Will because it forms a trust and does not distribute all assets outright.

Who can use a Simple Will?

A Simple Will may work for you if:

What is a Complex Will?

A Complex Will is not necessarily “complex”, it only means that is not a Simple Will. A Simple Will gives all assets outright, a Complex Will does not.

  • Example 1: Mr. Jacobs of Bala Cynwyd, Pennsylvania had his Montgomery County Estate Planning Lawyer draft an Eight page Will making outright gifts to every Bala Cynwyd resident. Mr. Jacob’s Will is a Simple Will, as all assets pass outright to heirs.
  • Example 2: Ms. Jones of Marlton, New Jersey has her Burlington County Estate Planning Attorney draft a Will putting $100,000 into a Pet Trust for her dog and all other assets to the Camden County SPCA. Her Will is only four pages. Ms. Jones Will is a Complex Will because it forms a trust.

Who Needs a Complex Will?

A Complex Will is essential if you:

What is a Holographic Will?

A Holographic Will is a Last Will and Testament entirely handwritten by the testator. A Holographic Will can be a Simple Will or a Complex Will.

The Problems With a Holographic Will.

Holographic Wills lead to a great deal of expensive litigation. The typical person is neither familiar with the legal issues raised by Will terms nor a Will’s complex terms. Overlooking even one word or sentence can create confusion or conflict, which could be avoided using an experienced Estate Planning Lawyer. A Holographic Wills is especially problematic if:

What is a Codicil To A Will?

Codicils were popular when Last Wills and Testaments were hand-typed. A Codicil is an amendment to a portion of a Will, leaving the remainder intact. In today’s world, it is usually faster and cheaper to just republish the entire Will.

What is a Contract Will?

A Contract to Will is a binding agreement between two parties. Both sides bind themselves by a promise that the Wills, or some portion of their Wills, cannot be changed without them both consenting.

  • Example 1: Husband and Wife live in Philadelphia and sign Contracts to Will, promising that if Husband dies first, Wife can stay in his house rent free for her lifetime. Husband dies first. His son from his first marriage is the executor and files the Will at the Philadelphia Register of Wills. Once securing his letters, he Petitions the Philadelphia Orphans’ Court to sell the house. The Wife can successfully enforce her right to stay in the house. The judge will deny the son’s petition.
  • Example 2: Husband and Wife live in Chester County, Pennsylvania, and sign Contracts to Will promising that the survivor will divide all remaining assets equally to their children. Wife dies first. Husband remarries. Husband changes his Will, giving all assets to his new wife and naming her executor. At Husband’s death, the new wife files the Will planning to take the property. The children petition the Chester County Orphans’ Court to enforce the contract. The court will order all assets given to the children, as Husband’s new Will breached the Contract to Will.
  • Example 3: Husband and Wife live in Atlantic County, New Jersey and sign Contracts to Will promising that at the survivor’s death their shore property shall pass to the eldest son. Wife dies. Husband attempts to give the beach property to his youngest son. The eldest son can successfully petition the Atlantic County Court to prevent this transfer, as it violates the Contract to Will.

Who Needs a Contract to Will?

A Contact to Will is very useful if you:

  • Have a Blended Family, and wish to bind a second spouse to specific terms regarding where assets pass at the second spouse’s death.

  • Have children, and want to bind the other parent to leave them assets at the second spouse’s death.

  • Wish to bind a spouse to specific terms as to how any or all assets pass at the second spouse’s death.  

  • Are in a Second Marriage, and wish to bind your spouse to terms to prevent conflict with children from a prior marriage.

Common Questions about Wills

Do I need a Lawyer to Make a Will?

A Will is valid as long as it satisfies all the state’s requirements. No state requires Wills being made by a lawyer. The problem, of course, is that unless you have many years of experience as an Estate Planning Attorney you likely unfamiliar with Will requirements and Asset Protection. A lawyer that focuses exclusively on Wills and Trusts can help protect your family and ensure your wishes are respected.

What Should I Do with My Will After I Sign it?

After you sign your Will, you should keep it in a safe place where your Executor can claim it after your death. Our clients will often store their original documents in our fireproof safes where they cannot be easily destroyed or stolen. Be sure that the person you appointed as your personal representative knows where you placed your Will. If you store your documents in our fireproof files, we release them as soon as the executor provides proof of your death.

Example: Mr. Jones of Philadelphia stores his Will in our fire proof safe. He names his son who lives in Chicago as executor. Mr. Jones becomes ill, moves into a nursing home and in the process, misplaces all of his private papers. At his death, his Will is safe. His son merely provides his father’s death certificate and claims the Will.

What Happens If You Die Without A Will?

If you die without a Will then your estate is considered “Intestate.” Being Intestate means that the State, not you, decides how to distribute your property. Every state has its rules, and we have provided Guides to the New Jersey Rules of Intestacy and the Pennsylvania Rules of Intestacy. Consult with an experienced Probate attorney about your particular state’s rules.

Are Online Wills Legal?

There is nothing illegal about finding an online Will, but there is no guarantee that the Will found online is in the proper format or that you execute the Will properly. Further, an online Will isn’t crafted to your specific needs. An online Will is a cookie-cutter document. If you are concerned about Asset Protection, potential Will Contests and keeping your assets away from son-in-laws and daughter-in-laws, an online Will is not for you.

What is the Difference Between a Specific Gift vs. General Gift?

In a typical Will, there are two types of gifts; Specific Gifts and General Gifts. Specific Gifts leave a particular object to someone. While optional, they are the first gifts bestowed from a Will.

A General Gift leaves a percentage of all that remains after honoring the Specific Gifts. The residual heir or heirs (residue being what is left after the specific gifts) usually receive the bulk of the estate after the smaller gifts and valuables are distributed. Each Will must have at least one residual heir. If your Will fails to clearly state who receives the residue, the Intestacy Rules make the decision for you.

  • Example 1: Mrs. Jones’ Will says, “I leave to my vacation property in Atlantic County, New Jersey to my daughter Maria.” This is a Specific Gift.
  • Example 2: Mr. Smith’s Will says, “I forgive the note I hold on my son’s Philadelphia house.” This debt forgiveness is a Specific Gift.
  • Example 3: Mr. Jacobs’ Will gives Specific Gifts to his daughter. He made no gifts to his estranged son. The Will has no residual gift clause. Mr. Jacobs died a resident of Montgomery County, so the Pennsylvania Intestacy Rules apply. Because he is a widower, his residual estate passes in equal shares to his two children. His estranged son inherits 1/2 the remaining estate after the Specific Gifts.

Should I Appoint a Guardian for My Minor Children?

A minor child’s parent’s death is a traumatic event. Pursue any action possible to minimize your child’s ordeal. Protecting your child includes avoiding custody hearings, if possible. If you have minor children, naming a Guardian for them is one of the most important considerations in your Will. Typically, if one parent dies, the surviving parent will remain responsible for the children. However, complications arise if both parents die simultaneously, or if the surviving parent is unwilling to provide care. If you fail to name a Guardian, the court decides who serves as your child’s Guardian of the Estate and Guardian of the Person.

  • Example: Ms. Jones of Philadelphia has a minor child whose father has failed to maintain contact or provide support. Ms. Jones is worried that at her death the father will attempt to gain control over the child to obtain control over the child’s inheritance. Ms. Jones must work with her Philadelphia Estate Planning Lawyer to prepare. If she has died, she is not available to testify towards the father’s character. Her Estate Planning Lawyer can make a file of evidence for the Philadelphia Orphans’ Court, who will determine who receives custody. Further, Ms. Jones’ Will appoints a Guardian who is prepared to fight the father for custody. Ms. Jones even arranges for this Guardian to have access to funds at her death to confront the father.

Do I Have to File My Will With a Court or in Public Records?

Most states have no place to file your Will during your lifetime. Pennsylvania, New Jersey, New York and Florida do not accept Wills until a person has died. Will storage is your responsibility (see, What Should I Do With My Will After I Sign It). If your state does provide this service, Will filing during life is not obligatory. Upon probate, however, the Will is filed with the State and becomes public record.

What are the Homestead Acts?

Some states have enacted Homestead Laws. This answer serves as a general outline. Consult with an Estate Planning Lawyer about the Homestead Law of your given state.

Generally, a homestead is the permanent home of a person who: (1) is married and/or has minor children; and, (2) owns the property in his or her name alone. Homestead laws generally state that the family home will become the property of the surviving spouse and minor children, free of creditors claims.

Most Homestead laws state that if you have real estate that is a homestead, your Will has no control over it. Upon your death, your homestead will automatically pass as follows:

  1. If you have both a spouse and minor children, your spouse gets the right to live in the home for the rest of his or her life, and your children get the home upon your spouse’s death.
  2. If you have a spouse and no children, your spouse gets the home, no matter what your Will says.
  3. If you have minor children but no spouse, your children get the home in equal shares, no matter what your Will says.

An exception to the above rules occurs when you have a spouse and adult children. In this case, you may leave your home to your spouse alone.

Whether a home is legally a homestead can be a difficult legal question.

Should My Will Create a Trust?

Trusts are excellent tools. If properly drafted an Irrevocable Trust can allow your heir to access the gift you leave them but protect the gift from their spouses, creditors and from future death taxes. Other trusts help protect your spouse and perform tax planning. See Disclaimer Trusts, Credit Shelter Trusts and Bypass Trusts.

If the heir will not immediately spend the inheritance, it is wise to consider placing the gift in trust with the beneficiary named as trustee. In most cases, there is no need for a bank or trust company. These protective trusts have little if any ongoing costs. Some trusts provide protection for generations. See Dynasty Trusts.

Can I Change or Completely Revoke My Will?

You can change or revoke your Will at any time. There are, however, some important considerations.

Making a Codicil is one method to alter a Will. A Codicil is an amendment to the Will leaving the remainder intact. The other alternative is to execute an entirely new Will. A new Will revokes and takes precedence over any prior Wills. A codicil is a separate document and must be signed and witnessed just like a new Will. Further, at your death, both the original Will and Codicil are Probated, so everyone sees the change. Because of these formalities, making an entirely new Will is usually preferable.

Be sure not to make any changes or markings on your Will after it has been witnessed and signed. This is absolutely vital. If you cross out a person’s name or add writing to a Will that has already been signed, you risk invalidating the entire Will.

To revoke a Will tear it up, deface it, burn it or destroy it. But this leaves you without a Will and your estate subject to the Rules of Intestacy. It is wise to execute a new Will quickly. Otherwise, you risk having your wishes ignored.

What Happens if After I Sign My Will I Marry, Divorce or Have Children?

Your Will is meant to change when your assets or relationships change. A Will designed to reflect your wishes before you have children likely does not provide a protective Dynasty Trust for your new baby, nor name a Guardian. Marriage, especially if a Blended Family or a Second Marriage, may require a Contract to Will. An addition to any family may make an IRA Trust an excellent idea.

When life changes, call your Estate Planning Lawyer. A quick consultation should let you know if your existing plan is adequate or if a change is needed.

See our articles about Estate Planning for Marriage, Estate Planning for Blended Families, Estate Planning for Second Marriages and Estate Planning for the Birth or Adoption of a Child.

Is My Will Valid if I Move Out-of-State?

Because the United State’s Constitution requires the legal documents of one state to be recognized by the others, a valid Will made in one state is valid in all states. However, if your Will was not “self-proved,” it may not be accepted by certain courts until the witnesses sign an oath swearing that they saw you sign your Will. Because of the expenses involved in finding your witnesses, it is probably best to rewrite your Will after moving to another state.

Can I Make a Handwritten Will?

A handwritten will is called a “Holographic Will.” It is valid in about 25 states so long as all material provisions and clauses are entirely handwritten. However, because errors are common in Holographic Wills and because they often cause a delay in administering estates, we do not recommend them. The court can be unusually strict in determining whether a Holographic Will is authentic. More importantly, we do not recommend that people revise their Wills by hand. Revised Wills, especially when handwritten, often lead to Will Challenges.

Can I Disinherit Someone In My Will?

In most states, unless you have a post or prenuptial agreement, your spouse has a right to a portion of your estate, even if you disinherit your spouse in your Will. But most states allow you to disinherit your children. You are free to disinherit any other person.

Some states have enacted laws giving special protections to minor children. For instance, your state may have a law saying that you cannot give your home to someone else if your minor child has to move from the home.

Do Jointly Held or “In Trust For” Assets Pass Under the Terms of My Will?

No. Jointly Held Assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Allow your Estate Planning Lawyer to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.

Can I Use My Will to Care for a Special Needs Person so They Still Qualify for Their Government Programs?

Yes, if done properly. Special Needs planning is a complex area of the law, and the Will’s terms must be exact. But, if done properly, a Special Needs Trust can be created to care for a Special Needs Person while keeping the person on their existing government programs.

Can I Put My Funeral Arrangements in my Will?

Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that key people know your plans. You may want to consider a Funeral Directive.

How Often Should I Review My Will?

Will reviews are situational, but as a general rule, you should review your Will’s terms annually. At our firm, we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.

Can a Will help Reduce Death Taxes?

The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. Tax avoidance is a very complex area of the law, and you should work closely with your Estate Planning Lawyer.

What Happens if the Person I Leave Something To in My Will Dies Before Me?

You can change your Will at any time. As your assets and your life situations change, update your Will. But, like Revocable Living Trust, a well drafted Will clearly states who receives an inheritance should a beneficiary predecease you. A good Estate Planning Lawyer asks you what result you wish, and drafts terms accordingly.

For example, if a Bergen County, New Jersey client wants me to set up an Irrevocable Third Person Special Needs Trust for her autistic granddaughter in Philadelphia, I will ask her what should happen to any unused funds at the Granddaughter’s death. She might say that if her granddaughter doesn’t survive her the resources earmarked for the Special Needs Trust instead pass to her son. She might also say that if her granddaughter dies after her, any remaining funds pass to a charity supporting Autism research. Whatever her wish, I will then incorporate those terms into the Will. The executor and trustee must follow these terms.

What Does the Executor Do?

The Executor is the fiduciary responsible for managing the probate estate from inception until the final asset’s distribution to the heirs.

For example, lets say that your uncle, a long time resident of Philadelphia has died leaving a Will. The Executor takes the Original Will, Original Death Certificate, an ID and a checkbook to the Philadelphia County Register of Wills. If the paperwork is correct, the Register will then issue the Executor letters that the Executor uses to prove that he or she represents the Estate. The Executor then is responsible for collecting the estate assets, protecting the estate property, satisfying creditor claims, paying taxes, pursuing claims for the estate, deciding if assets should be liquidated or not, investing estate assets, and then distributing the estate assets to the Beneficiaries. Other responsibilities that are not legal, but come with the job, include communicating with family members, resolving disputes over personal property (who gets the engagement ring), answering Beneficiary questions, overseeing the Estate Attorney and Accountant and even finding good homes for pets.

Should I Make my Estate Attorney my Executor?

The advantages of naming your attorney as Executor is having an experienced, neutral party handling your estate. Family politics can inhibit a family member’s ability to serve efficiently. Family and friends are unlikely to have experience with taxes, real estate transactions and probate procedures. An experienced Probate Attorney will make the process proceed faster.

Unless you state otherwise, whomever you select to serve as your Executor will take a fee. If you select a family member as Executor who then hires an Estate Lawyer and Accountant to assist them, then it might prove less costly to simply name the Estate Attorney as the Executor. Peter Klenk often serves as Executor, but instead of taking a fee equal to a percentage of the estate, he takes an hourly fee, which often is less expensive to the estate than having a family member. If you have a family that does not get along, the Estate Lawyer as Executor sometimes avoids costly litigation and family fights. Be honest also about your spouse, at your death your spouse maybe be incapacitated by grief, illness, or disability and unable to effectively serve as Executor. Having your Estate Lawyer serve as Executor will increase the chances that necessary tasks will be accomplished, taking the burden off your spouse.

Who Should I Pick to be my Executor?

Serving as an Executor is a job that comes with potential liability. When selecting an Executor, don’t think of it as a reward for a friend or family member, think of it as an irksome job that may last well over a year. The person will be responsible for filing taxes, selling real estate, collecting on debts, dividing up personal property between nettlesome relatives, fielding phone calls from beneficiaries waiting for their inheritances and other, unpleasant tasks. An Executor should be someone financially responsible, stable, able to keep excellent records, able to work well with your heirs and trustworthy. Be honest with yourself about the difficulties and complexities of your estate and your family. Select someone who is up for the job. Remember, the Executor does not need to accomplish every task, as the Executor is free to hire an Estate Lawyer, CPA or realtor. The Executor is the quarterback and needs to make sure things get done.

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If you have any questions about Last Will and Testaments or any other estate planning topics, please contact our office to schedule a free consultation. For more than two decades Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain complex estate planning techniques clearly and concisely. We make it easy for you to understand estate planning so you can make the best decisions for yourself and your family.

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