Should I have a Will?

The short answer is likely yes. Most of us should have a will. Some might ask, “Why should I have a will, I will be dead and gone anyhow?” Think of it this way, do you want people fighting over your assets when you are gone? Do you want state law to dictate how your assets should be divided and where they should go? Do you want your assets to go to the government? Who will get physical custody of you minor children under the age of 18? Perhaps instead, you would like to create a last will and testament to direct your assets to help loved ones live a better life, or to help a charity that you have strong convictions for. More importantly if you have minor children, you can name who is to be the guardian of your children if both spouses die.

In general terms, a last will and testament is a tool that can be used to direct how your worldly possessions are distributed after your death. If you are making a valid will, you are referred to as the testator. Your estate is the assets you leave behind after your death, including your real property or real estate, and personal property including money, bank accounts, investments, stocks, bonds, retirement accounts, 401k’s, IRA’s, the remaining amounts of an annuity(s), vehicles, and personal belongings. A person assigned in your will to receive a portion of your estate may be called a beneficiary, devisee, grantee, successor, or inheritor. The person or institution that you assign to administer your will and distribute your estate after you pass away is called your executor. You can name one of more executors in your will. You can also name alternate executors in your will in case your named executor is unable or unwilling to serve as executor for any reason.

A will can also be much more, it may be part of your business succession planning, give financial decision and legal decision instructions to your executor, or give instructions on paying certain debts such as medical bills and funeral expenses. A will can also dictate powers to the executor such as liquidating (converting to cash) assets like stocks and bonds for distribution to beneficiaries of your will. Some Trusts also can be integrated into wills. For instance, a will can not only designate a guardian for minor children, but there can also be an integrated trust with a named trustee to provide funds for children or grandchildren. For more information on Trusts, visit the Trusts page at MentchLaw.com.

Access to digital assets including computers, digital storage devices, phones, email, online accounts, and cloud storage of pictures and files can be addressed in wills as well. For more information on digital assets and access to them, visit the Digital Assets page at MentchLaw.com.

In Pennsylvania holographic wills, or handwritten wills, are statutorily valid. Wills in Pennsylvania need to be signed at the end by the testator, but are statutorily valid without being notarized. A codicil, or an amendment to a will which can include an asset list, also must be signed at the end by the testator, but is also statutorily valid without being notarized. However, a professionally prepared will by a licensed attorney, with the entire will on one document, absent codicils, type written, dated, signed at the end, and notarized, can serve to add validity and prevent unnecessary challenges to contest a will. A professionally prepared will by a licensed attorney can also cover appropriate material with the appropriate language, and make it very unlikely that a will would be considered an invalid will. A professionally prepared and properly worded will can also prevent a latent ambiguity(s), or word confusion, arising from extrinsic evidence, extrinsic facts, extraneous evidence, or facts and circumstances not addressed properly in the will.

In summary, with a will, you can determine who will receive your estate, and how your estate will be divided. A will can serve to prevent the need for certain emotional decisions by your loved ones and aid in estate administration. Furthermore, a will can potentially prevent family feuds, prevent family legal battles, prevent family splits, and prevent long term additional family scars. While a will does not always prevent family issues, it certainly can help. Without a will, state regulations will mostly determine who your heirs, or person(s) legally entitled to your estate property, will be. It also worthy of noting, that under the laws of Pennsylvania, a spouse not included in a will can make an election against the will, and should be entitled to 1/3 of his or her deceased spouse’s estate. Furthermore, property jointly titled to married couples as tenancy by the entireties property in Pennsylvania, will be property of a surviving spouse after the death of the decedent spouse, and not pass through the decedent spouse’s will as part of the decedent spouse’s estate.

Attorney Kirk E. Mentch, Esquire
www.MentchLaw.com