When you make a Will, you take control of every aspect of what will happen to your property when you die. You can name the Guardian of your choice to care for surviving minor children. You can create within the Will or in a separate Trust document a trust to hold property inherited by minors until they reach an older age decided by you. You can make sure your spouse inherits whatever portion of your estate you desire (but not less than the intestate share of a decedent’s surviving spouse provided for under Pennsylvania statute).
You should know that if you die “intestate” (without a will), the State has a will for you, contained in the intestacy provisions of the Probate, Estate, and Fiduciary Code. Therefore, if you die without a will, what happens to your property will be determined by the State, not by you. The term “issue” as used in the Code basically means the children, grandchildren, great-grandchildren, etc. of a person, including adopted people. What follows is a short summary description of the intestacy provisions contained in Sections 2102 and 2103 of the Code.
The intestate share of a decedent’s (deceased person) surviving spouse is:
The entire intestate estate, if there are no surviving issue or parents of the decedent. The term “issue” includes all direct descendants born to or legally adopted by a person – his or her children, grandchildren, grandchildren, great-grandchildren, great-great grandchildren, etc., including adopted children in any of the generations.
- The first $30,000 plus one half of the intestate estate, if the decedent is not survived by issue but is survived by a parent or parents.
- The first $30,000 plus one half of the intestate estate, if there are surviving issue of the decedent, all of who are also issue of the surviving spouse.
- One half of the intestate estate, if there are surviving issue of the decedent, at least one of whom is not issue of the surviving spouse.
Even if a decedent has a will, it is illegal to leave less to a surviving spouse than the shares set forth in Section 2102 of the Code. In other words, a spouse is always entitled to his or her intestate share, and any attempt to circumvent these provisions with a will is not enforceable against a surviving spouse.
Section 2103 of the Code provides that the share of the estate, if any, to which the surviving spouse is not entitled, or if there is no surviving spouse, the entire intestate estate is distributed in the following order:
- To the decedent’s issue.
- If no issue survive the decedent, then to the surviving parents or parent of the decedent.
- To the decedent’s brothers, sisters, and their issue if no parents survive the decedent.
- To the surviving grandparents of the decedent, if no parents, siblings, or their issue survive the decedent, but at least one grandparent survives the decedent,
- One-half goes to the paternal grandparents, or grandparent, or if they are both dead, to the children of each of them and the children of the deceased children of each of them; and,
- The other half to the maternal grandparents or grandparent, or if they are both dead, to the children of each of them and to children of the deceased children of each of them.
- If no grandparent survives the decedent, then uncles, aunts and their children and grandchildren of deceased uncles and aunts inherit based on another section of the Code, depending on their degree of relationship to the decedent.
- If there are no surviving relatives as described above, the decedent’s entire estate goes to the Commonwealth of Pennsylvania.
If you do not have a Will, the estate distribution scheme provided by Pennsylvania law for you could well result in your estate passing to such a distant relative that you have never even heard of or met, or to the State, depending on your family circumstances. Not only that, if you are survived by no spouse but by minor children, other sections of the Code provide for the Court to appoint someone to administer that property for your children until they are eighteen years old. Most people would not want an eighteen-year old to inherit a substantial sum of money without some supervision of the money by a responsible adult until the child is older and more mature. Other parts of the Code provide for the Court to appoint another individual to care for your surviving minor children. Most people would want a particular relative or trusted friend to care for their surviving minor children and the property left to them. Without a Will, the Court will do the best it can to appoint a relative or other person, but it may not be the individual YOU would have picked.
You should also know that if you become ill or incapacitated and do not have a Living Will and Health Care Power of Attorney, a family member or the Court will determine what treatment you will or will not receive in the event you have a terminal illness from which you have no hope of recovery, with no idea what You would have wanted. Most people have firm convictions about what end-of-life care they do or do not want, and you can express them by having us draft a Medical Advance Directive to make your wishes known and legally enforceable.
You should also know that if you become incapacitated and are unable to take care of yourself or manage your money, a close family member or health care worker would have to petition the Court through a formal proceeding to have a Guardian appointed for you and your property unless you have a Durable Power of Attorney appointing the person or people of YOUR choice to fill those roles.
For reasons such as these, it is the opinion of the lawyers of Williamson & Williams, that every adult should have a lawyer draft for them the four basic estate planning documents: a Will, a Living Will and Health Care Power of Attorney, and Durable Power of Attorney, regardless of age. These should be prepared as a four-document package. Nobody knows when they will die, become terminally ill, or be incapacitated by a car accident, plane crash, or old age. Drafting these basic estate planning documents should not be delayed, and we are ready to help you with these matters. Just give us a call to make an appointment. Doing so will give you peace of mind, knowing that your wishes will be followed concerning the matters discussed above, and that your family will not be burdened with guessing your wishes during a time of grief and stress for them.