Estate planning is not just for the wealthy, although this is a common misconception. We understand that estate planning can be a scary thought to some. It is a necessary concern to recognize your mortality. Estate planning is, however, an opportunity to review your current situation so that matters are properly taken care of upon your death, as well as planning during your lifetime. When we assist a client in his/her estate planning, we encourage him/her to ask questions (there is no silly question) so that we can provide the answers and assist the client in carrying out his/her intentions.

Our estate planning and administration practice includes estate planning, estate and trust administration and estate and trust fiduciary litigation. We offer virtually every estate service. This includes simple and complex wills, wills with marital deductions, disclaimer trusts, credit bypass trusts, QTIP and generation skipping transfer provisions, revocable trusts (living), irrevocable life insurance trusts, charitable gift programs and trusts, living wills and healthcare powers of attorney, general powers of attorney, guardianships, gift tax planning, stock redemptions and recapitalizations, defending and prosecuting actions against fiduciaries and counseling on business valuation issues.

Attorneys

 Shannon N. Darby

 Caitlin G. Eberle

 Kenneth A. Eisner

 Julian E. Gray, CELA

 Robert E. Harper

 Edward R. Lawrence, Jr.

 John S. Morrow, Jr.

Downloadable Form

 Estate Planning Questionnaire

 Information My Family Should Know

Note: You need Adobe Acrobat Reader to view the form. Get it here.

Article of Interest by Kenneth A. Eisner

 Neither Estate Planning Nor Your Lawyer Will Kill You

Helpful Hints

1. Where there is a Will, there is a way: Clients often ask whether or not they need a will. Only by drawing up a will and planning your estate can important decisions be made. Specifically, a will is the way that each of us can determine how our property will be distributed upon our death, who will handle our affairs and who will serve as guardian of our minor children. If a person dies without a will, your property will be distributed according to a formula fixed by law, which means, for example, that your spouse may have to share assets with other family members. More critical, dying without a will could result in your children being placed in the care of a court appointed guardian, rather than with someone you would have chosen to care for them. A will can be changed if you change your mind or if circumstances change.

   Not all assets are distributed pursuant to the terms of a will. Assets that are held in joint ownership with spouses or others with a right of survivorship pass automatically to the survivor. Assets with designated beneficiaries, such as life insurance policies, annuities, IRAs and various retirement plans pass to named beneficiaries regardless of the language contained in your will. Finally, assets held in a trust are governed by the trust rather than the will. A trust is a legal entity to which your legal assets may be transferred and managed by a person. Theses trust can be revocable or irrevocable. Whether you should have a revocable trust or not depends on your unique family situation. One reason often given for creating a revocable trust is for the sole purpose of avoiding probate. This proposition is at best debatable. In Pennsylvania, probate is not extremely costly. Also, having a revocable trust does not reduce Pennsylvania inheritance tax or federal estate tax.

2. Living Will and Healthcare Power of Attorney: People are living longer today than ever before. While many of these people live long and full lives, modern healthcare can also prolong the suffering of a person who is seriously ill. Perhaps you have experienced a loved one suffer for a long period of time because no one knew the person’s desires. You have the right to make your own decisions about the type of healthcare that you want. Provided that you are well enough, your physicians will involve you when making decisions regarding your treatment. However, if you are unable to make decisions about your care, others will have to make these decisions for you.

   A “living will”, also known as an advance directive, is a document that you sign during your lifetime to: (a) appoint a health care agent to make ordinary (that is, other than “end-of-life”) healthcare decisions for you if you can’t make them yourself; and (b) express your desires regarding the receipt of extraordinary medical attention under certain extreme circumstances.

   There are therefore two aspects to most Living Wills that we draft. The first part contains Health Care Power of Attorney provisions, and the second part contains the “Living Will Advance Directive” provisions.

   The appointment of an agent or agents to make the Part I health care decisions is very important. The agent is empowered to make decisions for you that go beyond the extraordinary medical treatments covered in the event of a terminal illness when all that is being done is prolonging the process of dying and you are in a permanent coma or a persistent vegetative state. For instance, the agent may make decisions regarding your admission to a nursing home, if necessary. Most importantly, your agent has the power to make decisions regarding your medical treatment even if you are temporarily unconscious for any reason. If your condition is not permanent, a standard living will that fails to name an agent would not be helpful. If you were in need of surgery and were unable to provide consent, your loved ones may well face the expense and trouble of seeking the court appointment of a guardian to make the decision. However, where the Living Will appoints an agent, that agent would be able to make decisions for you under most circumstances. Appointing an agent is truly the fabled “ounce of prevention”.

   The second part is a general expression of your desires regarding extraordinary healthcare treatments and covers two scenarios prescribed by Pennsylvania law: (i) terminal illness when all that is being done is prolonging the process of dying and (ii) a permanent coma or a persistent vegetative state. The law provides that the person you appoint as your Agent only has the power to act if you lack the capacity to make or communicate a decision, as verified by a physician and certified by a second independent physician. We often draft Living Wills to provide your agent with the ability to use discretion in conjunction with your specific directions. This provides flexibility rather than making your directions mandatory. Your agent would then have the power to mold your general expressions of intent to fit new and unpredicted situations. Bear in mind that you can have mandatory directions. It is completely within your discretion as to whether you desire to have a living will. Your living will is revocable at any time and in any manner, regardless of your mental capacity at the time of revocation.

3. General Power of Attorney: Another aspect to your estate plan is whether you desire to have a power of attorney for financial matters. A power of attorney is a written document where you can authorize a person or persons to act for you, as your agent or attorney-in-fact. For example, your agent can conduct financial transactions, such as buying and selling a house, maintaining bills and bank accounts. A power or attorney may be durable or nondurable. A durable power of attorney continues in effect after you become incapacitated. A nondurable power of attorney ends if you become incapacitated. Under Pennsylvania law, all powers of attorney signed on or after December 16, 1992 are durable unless the document specifically states otherwise. Note that if you become mentally incapacitated, it will be too late to grant a power of attorney.

   Finally, you may also name someone to have power of attorney, but withhold the power to act until a later date. This is called a springing power of attorney because it “springs” into effect upon a specified future time or when some specified circumstance occurs. For example, it may spring into effect if you become disabled.

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