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Kennett Square Probate & Estate Administration Law Blog

Is your estate plan as good as it'll get?

We were talking about the basics of estate planning in our last post, especially how difficult some of the decisions can be. For instance, with a durable power of attorney, you will have to figure out who should take on the responsibility of looking after your affairs and making decisions about your medical care. That person is not always your spouse or one of your children. Sometimes it is a trusted friend or an attorney, someone who can be a little more objective.

It is not easy to make those decisions. Nor is it easy to decide which estate planning tools to use. Well, maybe deciding is easy, but making the right choice is more involved than people sometimes think.

Overwhelmed by estate planning? Focus on the basics

It can be very difficult and uncomfortable to discuss what you want to happen with your care and assets when you can no longer make these decisions. However, it can prove to one of the most important steps in protecting yourself and your loved ones.

There are many factors that can come into play in estate planning. In fact, there are so many options and tools available that it can become overwhelming and easy to just put off creating an estate plan. But rather than give up, you can instead concentrate on the basics and your goals.

Durable, Limited, Whatever: Power of Attorney Is a Flexible Tool p4

We are going back to wrap up our discussion about powers of attorney. In our Sept. 22 post, we were going over the different kinds of powers of attorney. As we have said, the Commonwealth of Pennsylvania presumes that every power of attorney is durable, that it will remain in effect if the principal becomes incapacitated or passes away. In some cases, the presumption can help to avoid problems for the agent. In others, though, it could cause trouble for both principal and agent.

States differ when it comes to documentation and required language for powers of attorney, as well. In Pennsylvania, until Dec. 31, 2014, a valid power of attorney is a document signed and dated by the principal. The principal may also make his or her mark, or someone else may sign on behalf of and at the direction of the principal.

How to take that first step and draft your estate plan

Drafting, composing and ultimately completing your estate plan is a tough endeavor, there's no doubt about that. But the big hurdle to getting this done is, well, getting it done. So many people procrastinate or avoid dealing with their estate until it's too late, and then, their loved ones are left with a legal mess that will likely leave them with less than what you intended to leave them.

So today, let's talk about a couple of the common reasons people don't confront their estate plan needs and why everyone should do their best to overcome these factors and draw up an estate plan.

Durable, limited, whatever: Power of attorney is a flexible tool p3

We are continuing our discussion of powers of attorney. If that sentence looks awkward, it is probably because the power of attorney is both the document and the authority granted by the document. The principal may grant authority to the agent to do just about anything.

It is important to note that the power of attorney law in Pennsylvania will change on Jan. 1, 2015. We will discuss those changes in a future post.

It is also important to note that states' laws regarding power of attorney vary. As we have noted, according to Pennsylvania law, every power of attorney is presumed to be a durable power of attorney

Durable, limited, whatever: Power of attorney is a flexible tool

Pennsylvania law stipulates that a power of attorney is presumed to be a durable power of attorney. As we explained in our Sept. 8, 2014, post, the authority conveyed with a power of attorney differs significantly from the authority conveyed with a durable power of attorney. The question is not really about what the agent (the person accepting the responsibility) can do. Rather, it is about how long the agent's authority lasts.

Generally, a power of attorney remains in effect up to the point that the principal (the person granting the authority) dies or becomes incapacitated. Under a durable power of attorney, the agent retains the authority during the principal's incapacity and even after the principal's death.

Robin Williams' estate put in the spotlight

It is not at all uncommon when a celebrity or some famous personage dies that a spate of talk arises regarding the individual’s estate plan—what they did well, what they overlooked, and how we can all learn some lesson from their example. Robin Williams is among the most recent to be subjected to this scrutiny, and we’re happy to participate in the chatter. After all, we can indeed learn valuable lessons from the way the rich and famous handle their estates.

In Williams’ case, the details of his estate plan are not entirely clear, but it seems that he did not leave a Last Will and Testament. Rather, he had in recent years set up a couple of trusts, one for his real estate and another one in connection with his divorce from Marsha Garces. In that trust, which appears to be more connected to the divorce, he provided for his three children. The real estate trust was set up, at least in part, to achieve tax savings, which was a smart move. 

Joan Rivers' death a high-profile exercise of power of attorney

When comedian Joan Rivers went into cardiac and respiratory arrest during an outpatient procedure, the public vigil began. For the following six days, it felt as if news outlets reported on her condition hourly. While everyone outside of her hospital room waited for a change in Joan's condition, her daughter Melissa was facing a difficult decision.

According to a variety of news sources, Joan had drawn up a durable power of attorney that named her only child, Melissa, as her agent. It would be up to Melissa, the reports said, to make any decisions about her mother's care -- including the decision to remove the 81-year-old entertainer from life support.

Melissa did just that, and, on Sept. 4, her mother passed away.

Orphans' Court protects people who cannot protect themselves

Probate and estate matters are governed by state law. The federal government may tax an estate, but it does not handle will contests or, for example, guardianships. Pennsylvania does not have a probate court, per se. Rather, it has Orphans' Court.

We are one of two states to have an Orphans' Court, so the term may sound unfamiliar or even antiquated. The first step to understanding what the court does, though, is to understand that the term "orphan" has a broader definition than the one we are used to, the one in novels by Charles Dickens. Orphans in this case are people who lack protection; the Orphans' Court steps in to protect the rights, both personal and property, of Pennsylvanians who cannot handle their affairs on their own. Minors, incapacitated individuals, decedents, nonprofits and trusts are all included in the court's jurisdiction.

Do you know how a special needs trust could help your child?

Do you have a special needs child? A child with a disability that will keep him from managing day-to-day living? You know you are not alone. Looking ahead, though, you worry that your child will be alone and unable to care for himself. Whether the disability is congenital or is the result of an accident, all you know is that you will not be around forever to look after him.

A good trust attorney can help you ensure that your child is taken care of, no matter what happens to you. Your attorney will walk you through the options -- yes, there are options -- and help you decide which planning tool is best for your child.

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Larmore Scarlett LLP

Larmore Scarlett, LLP
123 E. Linden Street,
P.O. Box 384

Kennett Square, PA 19348

Phone: 610-444-3737
Fax: 610-444-9532
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