A well-crafted estate plan should include a Will. A Will directs the distribution of assets to beneficiaries on death. Without a Will, assets are distributed to beneficiaries according to the intestate law of Pennsylvania. The laws of intestate succession are there to protect the surviving spouse and decedent’s children. But the laws of intestate succession do not take into consideration advanced estate planning needed in families that may be faced with special circumstances, such as drug and alcohol issues, a pending divorce of a child, special needs of a child or spouse, or creditor/bankruptcy issues. Nor do the intestate laws provide a choice to you on who you want to receive your assets. For example, if you do not have a spouse or children, then your assets are distributed to your parents, siblings, aunts, uncles and their children and grandchildren. Sometimes this order matches a person’s wishes, often times it does not.
A Will may also provide for the nominations of fiduciaries (Executors, Trustees, Custodians, Guardians for Minors and Incapacitated Adults). The powers of an Executor to administer a Will are derived from three sources: Pennsylvania Code, the decedent’s Will, and by order of the Orphans’ Court. Because the Pennsylvania statutory law granting Executors the power to administer an estate is limited, a well-drafted Will should set forth additional provisions to administer a decedent’s Will otherwise, the Executor will need to seek permission through the Orphans’ Court.
Creating a Will
To be valid in Pennsylvania, a Will must meet the following statutory requirements:
- It must be in writing
- Be executed by an individual 18 years of age or older (the “testator”)
- The individual must be of sound mind
- Be signed by the testator, or by another person in the presence of the testator at the direction of the testator
- Be dated
- Be signed in the presence of 2 or more credible witnesses. Under a best practices policy, the witnesses should subscribe to the Will by stating that they saw the testator execute the Will willingly and without duress, the witnesses signed in the hearing and sight of the testator, and the testator was 18 years of age, of sound mind, and not under any undue influence.