AREAS OF PRACTICE
Domestic Partnerships and Civil Unions Formation and Separation
Wills, Power of Attorney, Trusts, Living Wills, Medical Power of Attorney and Authorizations
Real Estate Conveyances and Partition of Property
PROBATE, ESTATES. . . . . |
and CONTINGENCY PLANNING
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The Law Offices of Kristine W. Holt offers services in support of probate in both Pennsylvania and New Jersey. Such services include consultation, drafting and filing the paperwork needed to raise an estate, providing assistance and guidance to the executor in the sale and transfer of assets, payment of debts, and distribution of legacies. Preparation of the proper inheritance tax returns is also provided. Fees are billed at an hourly rate to the estate and settled before the estate is closed; necessary costs (filing fees, etc.) may be paid by the estate at the time they come due.
Probate -- Probate is the legal process by which the estate and other affairs of a deceased individual is wrapped up. If the decedent left a Will, that Will is filed with the appropriate court office (in PA, the office of the Register of Wills; in NJ, the Surrogate's Office), and certificates are issued to the named Executor establishing his legal authority to act of behalf of the estate. If no Will was left behind, then an interested party must petition the court to be appointed as Administrator, and the appointment must be approved before certificates can be issued. In either event, notice of appointment of either Executor or Administrator is sent to all known possible beneficiaries, and publication is made in a county newspaper. The executor would also want to obtain a tax number and open a separate bank account for the estate.
At this point, the Executor has a duty to preserve the assets of the estate, i.e., make sure they are not wasted or lost, and must settle the last debts of the estate. Also, the executor must also examine the claims that other creditors may submit, to determine whether such claims are legitimate or not, and pay from the estate's resources. The executor may need to deal with issues arising from joint accounts or other jointly owned property, and would have to decide how to liquidate property that cannot be easily distributed equally among the beneficiaries, such as real estate. The executor must also assure that the inheritance tax is paid within the time allowed, so as to not incur a penalty. The executor is responsible for filing all the necessary tax returns on behalf of the estate, including any partial income tax returns that may need to be filed. Finally, the executor is responsible for accounting and reporting to the beneficiaries all the assets and expenses associated with administering the estate, and proposing a distribution of the remaining assets in accordance with the Will (or with state law, in the case of an intestate estate). The accounting need not always be filed if all the beneficiaries agree; obviously, if objections to the distribution scheme are raised, litigation is likely.
Not all estates need to be probated. For instance, estates with a net value under a certain amount can be distributed informally. And married couples who own all their property jointly may dispense with probate. In addition, some assets, such as life insurance proceeds (if passed to a named beneficiary) are not considered in probate. However, sometimes it is necessary to raise an estate for other than inheritance tax purposes, such as pursuing litigation. Each situation is unique, and requires consultation with a knowledgeable attorney.
? Wills -- The Law Offices of Kristine W. Holt offers expert services in drafting Wills, be it a simple Will or including Trust provisions for minors beneficiaries, etc. The services include consultation, drafting, and execution, and are offered at a flat rate. Services may be offered in person or by internet/phone/mail (for NJ or PA residents only) at your convenience, if desired.
A Last Will and Testament is the basic testamentary document used to express one's wishes in regard to the distribution of property and other assets after death. It is a legal document that must comply with certain requirements defined under law before it can be recognized as valid for probate. The requirements may vary from state to state, but generally, in PA or NJ, a Will must at least clearly indicate the knowing testamentary intent of the document; must clearly set forth who is to inherit what and also how to distribute any left-over property; should appoint an executor and allow for the payment of debts; and must be signed and witnessed by the required number of witnesses. Notarization of the signatures is not absolutely required, but is highly recommended. A typewritten Will is preferred, although a handwritten Will may be probated in both PA and NJ, although extra costs are involved. Use of a "fill-in-the-blanks" type of Will form is discouraged, because such standardized documents may not properly address all the situations and consideration relevant to your estate. A qualified attorney will analyze your particular needs and draft a document to address your wishes.
Once a Will is drafted and properly executed, it should be kept in a safe place, i.e., a fire-proof safe or box in the home, to which the executor has access. If you change your mind about certain provisions in the Will, you can draft and execute a "codicil," which is an addendum attached to the Will which outlines changes to be made to the main documents. Alternatively, you can simply draft and execute a new Will. You should never mark up a Will with pencil or pen, nor cross out provisions or add provisions, as it may cause the whole Will to be rendered invalid. If you need to change your Will in any way, you should contact the attorney who drafted the first document.
Living Wills, Medical Powers of Attorney and Financial Powers of Attorney are primarily contingency documents intended to be used while the person subject to the document is still alive, but may be unable to express their wishes for medical treatment of otherwise act on their own behalf. The Living Will is often referred to as Advance Directives. They are a set instructions to be relied upon by one's physician in the event the patient is unable to express their wishes, and is used in determining what treatments may be used or withheld. The Living Will may also appoint a health care representative. Generally, a Living Will does not go into effect until the patient is permanently unconscious or terminally ill, with no hope of recovery. Additionally, a Medical Power of Attorney may be executed which appoints a third party as the patient's legal representative with the ability to make medical decisions on your behalf. Such a Power goes into effect upon execution, but may be overriden by the patient.
Financial powers of attorney have much wider use. Such powers may be general or limited in scope, and may be durable or springing in duration. A general power of attorney grants the agent complete authority to act on behalf of the principal in virtually all matters, as long as the agent's actions are not self-serving or fraudulent. A limited power of attorney is executed for a specific purpose, for instance, to allow an agent to act on your behalf at a property closing meeting. Likewise, a durable power of attorney becomes effective at the time it is executed, and remains effective until the principal rescinds it in writing. It will remain effective even if the principal becomes incapacitated. The springing power of attorney, on the other hand, becomes effective only if and when the principal becomes incapacitated. The main difficulty faced with this type of power is that a judicial declaration of incapacity may be needed in order to use it.