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What is a “self-proved” or “self-proving” will in Pennsylvania?

November 22, 2011

Filed under: Estate & Trust Admin Featured Posts,Estate Administration,Estate Planning,Estate Planning Featured Posts — Andrew Sykes @ 4:35 pm

If you’re the executor of an estate, you want to be able to walk into the register of wills office, present the original will (along with other required materials), get sworn in, obtain the documents you need, and walk out ready to start settling the estate.

A “self-proved” or “self-proving” will is going to help.

If you are doing your estate planning now, make things easier for your executor by signing a will that is self-proved. (I will discuss how shortly.)

Background

To make a valid will in Pennsylvania, you must put it in writing and sign it at the end. If you can only make an “x” or some other mark instead of signing, two witnesses must be present and must also sign their names to the will in your presence. If you can’t sign or even make a mark, you can authorize someone else to sign for you, but again, you must have two witnesses who also sign their names to the will in your presence.

In order for the will to be accepted by the register of wills to open an estate, Pennsylvania law requires that the will be “proved by the oaths or affirmations of two competent witnesses.”

So if you had simply signed your will in front of two witnesses, those witnesses could appear at the register of wills office and swear under oath that they did indeed watch you sign that will. But what an inconvenience for the witnesses!

And what if you signed the will 30 years before you died? Will the witnesses still remember? Are they still alive? Can they be found? If not, can someone else swear that they recognize your signature on the will?

Self-proved will

A self-proved (sometimes called “self-proving”) will solves this problem.

If the will contains certain acknowledgements and affidavits, the register of wills shall accept the will without the need of witnesses to the signature.

Here is an example of an acknowledgement and affidavit that would be acceptable under Pennsylvania law:

When it won’t be accepted

There are three situations in which the register of wills would not accept a self-proved will:

1. When the validity of the will is being contested;

2. When the will is signed by mark; and

3. When the will is signed by someone else (as described above in the first paragraph under Background).

In these situations, you’ll need to have witnesses appear or submit sworn statements.

Execution

Finally, it’s important to remember that to make an effective self-proved will, the document must be executed correctly.

You’re not required to use the services of an attorney, but a qualified attorney can often help you make sure your will is drafted and executed properly.


Doctors: Can you tell the family when a patient needs a guardian?

November 11, 2011

Filed under: Aging,Elder Law - General,Estate Planning,Guardianship Featured Posts — Andrew Sykes @ 4:37 pm

Let’s suppose you are a doctor, or other similar health care provider. Every time you see your patient Joe his memory has worsened.

Joe struggles to recall whether he took his medications this morning, and if so, what they were. He used to ask about your children, but now he seems not to recognize you. Yesterday he left his coat – containing his wallet and keys – in the waiting room.

You believe Joe now needs someone to look after him.

Can you tell the family?

If a family member or friend of Joe’s calls to ask whether you think he needs a guardian, can you answer the question?

Thankfully, the regulations under HIPAA (the Health Insurance Portability and Accountability Act) provide an answer.

In certain circumstances, HIPAA allows a health care provider to furnish information relevant to a patient’s care to “a family member, other relative, or a close personal friend” of the patient, or to “any other person identified” by the patient for involvement in health care matters.

One circumstance appropriate for such disclosure is when the patient agrees to disclosure, or at least does not object when provided the opportunity. For example, if Joe brings his caregiver daughter to his appointment, he may agree to let you discuss his condition with her.

A health care provider may also make this type of disclosure if the patient is unable to agree to disclosure “because of the individual’s incapacity” and the provider determines that “disclosure is in the best interests of the individual.” In that case, disclosure may be made even if the patient is not present and has not agreed.

In either of these circumstances, the provider may “disclose only the protected health information that is directly relevant to the person’s involvement with the [patient]‘s health care.”

(The regulation discussing these circumstances may be found in the Code of Federal Regulations at 45 C.F.R. §164.510(b).)

You can therefore tell an appropriate person in Joe’s life that you believe Joe can no longer make and communicate decisions effectively and is unable to manage his financial resources or meet essential requirements for his physical health and safety.

So HIPAA not only protects Joe’s patient information when he has all his mental faculties, but also allows his doctor to notify an appropriate person when Joe has lost capacity and needs guardianship.

When you see Joe next, you may have more peace of mind knowing that someone else is in charge of his finances and health care decisions.

A version of this blog post originally appeared in the Western Pennsylvania Hospital News.


A pet trust for Fluffy

November 2, 2011

Filed under: Estate Planning,Trusts — Andrew Sykes @ 4:38 pm

You don’t have to be Leona Helmsley to set up a trust for a beloved pet.

After the billionaire Helmsley’s death, her white Maltese lived in the lap of luxury on its multi-million dollar trust fund. But Pennsylvania law allows people of even modest means to provide for a dog, cat, or other animal that is as dear as a family member (or, let’s face it, more dear than that nephew who drops by only when he needs help paying his bar tab).

Suppose you’re concerned about Fluffy, who greets you with wild tail-wagging each morning, listens attentively to everything you say, and never talks back. What will become of Fluffy when you die or go to a nursing home? Who will walk him and buy him his favorite smoked pig ears?

In recent years, Pennsylvania joined about 40 other states that have passed laws to make pet trusts valid and enforceable. Such statutes are important because pets (otherwise considered property by law) cannot inherit from their owners.

Under a pet trust, you give Fluffy, along with enough money to pay for his care, to a trustee. The trustee, usually a trusted friend or bank, has a duty to arrange for the proper care of the pet according to your instructions.

You can establish a pet trust for Fluffy during your lifetime (called an “inter vivos” trust), or by means of a clause in your will.

One advantage of an inter vivos trust is that it can go into effect as soon as you become unable to care for your pet. A clause found only in your will may not be discovered until after Fluffy has gone hungry or been given away.

Your pet trust should contain specific instructions about Fluffy’s care, such as the type and amount of food (and any specific brands) he eats, medical care (including preferred veterinarian), grooming needs, daily routine, favorite treats, toys, and so on.

Determine who the trust should name as Fluffy’s caretaker. The trustee will deliver Fluffy to the caretaker for care according to your instructions.

Check to make sure the caretaker you name is willing to take on the responsibility. That will put you one step ahead of Leona Helmsley, whose proposed caretaker reportedly had no interest in the post. Be sure to name a substitute caretaker in case your first choice dies, or is unable to provide care.

You can fund the trust up front, or provide for funding through a bequest in your will. The funds can come from your estate, or from some other arrangement such as life insurance, a “pay on death” account, annuity, or retirement plan. Depending on your pet’s needs, the trust may require as little as $200 to $2,000 a year.

If you set up an inter vivos trust, you may also need to change your will to make reference to the trust and perhaps provide additional funding.

Under Pennsylvania law, the trust lasts until the end of your pet’s lifetime. If you have set up the trust for more than one pet, it will last until the death of the last surviving animal. Any remaining funds will then return to you, if you’re still alive, or can pass to a beneficiary you name.

You will probably also want to leave instructions about disposition of the pet’s remains after its death, such as burial or cremation.

An attorney knowledgeable about estate planning, and pet trusts in particular, can help you set up a pet trust that complies with Pennsylvania’s trust laws.

Fluffy might not eat hand-fed meals from a silver serving set like the Helmsley dog, but you can rest easy knowing Fluffy will have his smoked pig ears even when you’re gone.


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