Have A Will, Keep It Current

A 2007 study by an affiliate of Martindale-Hubbell found that over one-half of adult Americans do not have a will.  What this statistic implies from state to state varies in the detail.  However, on a general level we can state what it means in Pennsylvania.

First, not having a will does not mean that your estate will not have to go through probate.  In fact, whether you have a will or not, if you own assets that are not jointly owned or do not have a beneficiary designation, you very likely have a “probate asset” that is going to require one (or more) of your loved ones to visit the Register of Wills.  You will not be able to skip the step of “raising an estate” simply because there is no will.

Second, you will not be able to direct who administers your estate.  A decedent who dies with a Will names an “executor” to administer the estate in his or her will; thus, the decedent has some ability to ensure that a responsible and conscientious person acts as the executor.  Administering an estate can be a significant headache. Appointing an executor in a Will can be a way of not imposing that inconvenience on a party, such as a surviving spouse, at a time when that person is least emotionally equipped to handle it.  Obviously, if there is no will, the decedent cannot appoint an executor.  The task of appointing an administrator to handle the estate then falls, in primary part, on the Register of Wills. Generally, if there is no will the Register of Wills will look first to the surviving spouse as the administrator, then to individuals who would take the estate under the law of “intestacy” (the law that governs distribution of an estate when there is no will), then to “principal creditors” of the decedent, and then, finally, to the catch all “other fit persons.”  Clearly then, if there is a surviving spouse, he or she would very likely become the administrator of the estate, unless he or she “renounces” and the family provides the Register with a suitable substitute.  Unfortunately, the family with the help of the Register of Wills, might ultimately settle on a person that the decedent would not have chosen (which is a polite way of saying that, left to its own devices, the family may acquiesce in allowing the pushiest relative to be the administrator – this is not necessarily good or what the decedent would have wanted).

Third, once the administrator is appointed, how do the assets get distributed?  If there is no will, this process is also determined by the terms of the law of intestacy.  The first person who would be assured a percentage of the estate would be a surviving spouse.  For example, if there is a surviving spouse, and the decedent had neither parents nor “issue” (i.e., children, grandchildren, etc.), the surviving spouse would get the entire estate – in many cases an acceptable result.  In a slightly more complicated but normal scenario, if there are surviving issue of the decedent and his spouse who are children of the marriage, the first $30,000 along with one-half of the balance of the estate goes to the surviving spouse – the rest goes to the “issue.”  Now we can see examples of how things might go wrong.  What if the only surviving “issue” happens to be a nineteen year old grand-child (i.e., too old to have a guardian appointed, but potentially too young to handle a large amount of property)?  What if the grand-child had received a great deal of property during the decedent’s life, and the decedent had wanted to give his estate away in small gifts to a number of individuals?  What if the decedent simply did not like the grand-child or any other beneficiary that the intestacy law sticks into the line of succession?  Reliance on the intestacy laws can result in an unsatisfactory disposition of the Estate.  Keeping a current Will avoids this.

And, finally, money isn’t everything.  For couples with young and adolescent children, the question arises, who is to take care of them if both parents perish?  If both parents pass and there is no will, this question is left to the court system.  Sometimes the courts do a good job; sometimes they do not.  However, with a will, the parents may name a guardian of the person of their child, and in all probability the parent’s decision would be better informed than the court’s.

Overall, in the absence of a will Pennsylvania law is designed to distribute an estate and provide for the protection of minor children in a manner that the majority of Pennsylvania’s legislators thought that the majority of citizens would have considered appropriate at the time that the Legislature made those laws (and this assumes that the legislators are doing their job faithfully).  Even under ideal circumstances, that does not necessarily mean the Legislature had your needs and situation in mind.

— Rod Fluck


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