Wealth Preservation, Trusts and Estates

Who Will Initiate Probate: Probate is the court adjudicated process that an Executor or Administrator follows in the estate of someone who dies in Pennsylvania (PA). The Executor is a person or trust company named in a will. The Administrator is a person or trust company appointed by the Court where no will exists, Where there is a will that does not name an Executor or where the will names an Executor(s) who refuses or fails to act. Generally, the intestate beneficiaries or their appointees will have the first option to act as Administrator if one of the above circumstances were to arise.

What You Need To Start Probate: The basic requirements are the original will where one exists, original death certificate, Petition for Probate and Estate Information Sheet often prepared by the Attorney/Lawyer for the estate, check for probate fees paid to the Register of Wills, renunciations if necessary and witness affidavits if the will was not notarized.

Where Probate Takes Place: The Executor is appointed at the Register of Wills Office in the county in Pennsylvania where the decedent resided at death. Locally, one of the following courthouses would likely have jurisdiction: Chester County: West Chester, Montgomery County: Norristown, Delaware County: Media, Philadelphia County: Philadelphia, Bucks County: Doylestown, Berks County: Reading.

Once the Executor/Administrator Has Been Appointed: The remainder of the estate administration and probate requirements for PA will have to be followed. Among the requirements will be notice to the beneficiaries, periodic status reports to the court, gathering information for preparation and filing the PA inheritance tax return and federal estatate tax return (where necessary). Obviously each estate is different and the work necessary for completing the estate administration will vary from case to case. We will provide you with follow up postings about the probate process and ways to avoid potential problems and issues once you are appointed as the Executor/Administrator.

by Douglas L. Kaune, Esquire
Estate Planning & Administration, Wills, Trusts, Asset Protection, Elder Law
Unruh, Turner, Burke & Frees, P.C.
Phoenixville, Malvern, West Chester PA
Pennsylvania Attorney
dkaune@utbf.com PH: 610-933-8069

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By: David M. Frees III dfrees@utbf.com
Unruh, Turner, Burke and Frees
Chairman: Trust, Estate and Wealth Preservation Section
With Offices in Phoenixville, Malvern, and West Chester Pennsylvania
610-933-8069
Senator Edward Kennedy’s will was recently probated in the probate court in Massachusetts.  The document itself is very short.  He had previously placed many of his assets into a variety of trusts and blind trusts (because of his public service and the possibility of conflicts of interest) where another party managed those assets.

However, all of his assets were not previously added to these trusts or the probate of his will would not have been necessary.  Because he still had assets in his own name, the will was offered for probate.  This gives us an opportunity to review some of his estate planning strategies such as who he selected as executor and trustee and many others such as the types of trusts used.

For example, Kennedy was married for a second time and his wife was a lawyer.  However, he named a non family member and his son Edward Kennedy Jr as a substitute.  More on this later.

We also know, that he created a revocable living trust in 2006 and that the assets remaining in his estate are to be added to that trust and distributed by the trustee of that trust.  In many states, this type of trust arrangement offers a number of advantages – including a heightened level of privacy.  While such trusts are not widely used in Pennsylvania (because they do not offer all of the benefits that they do in other states that have expensive probate fees or difficult probate systems) they can be beneficial in many circumstances.

Because the will was probated, we also know that he appointed his friend Paul G. Kirk, Jr. as executor and as trustee.  He named his son as a substitute and not his second wife.  It also appears that he may not have made provisions for his wife’s children (his step-children).

If you are in a similar situation and want more information on the role of the executor and the most common mistakes they make and how to avoid them, please click here to get our free report:  The Ten Most Common Mistakes Pennsylvania Executors Make and How To Avoid Them.

Also, for a report giving more details about the types of strategies and techniques used by the Kennedy family and many other wealthy and moderately wealth families to pass on and to protect assets.  Please click here to request my report: Enhanced Estate Planning.

The use of trusts often make estate challenges more difficult and expensive.  Furthermore, wills will often contain a special clause called an interrorum clause or “no contest clause.” This clause discourages will challenges by revoking the gift to anyone who challenges the validity of the will and/or in some cases trusts or other ways of passing wealth.  While this clause does not appear in the Senator’s will, a similar clause may be in the trusts.

As a practical matter, Senator Kennedy’s will is a self proving will.  In Pennsylvania we have a similar law that allows you to make your will admissible to probate without having the witnesses appear in court.  However, you must verify that in addition to being signed at the end of the will, that the document also contains a special notary “affidavit” signed by the person making the will as well as the witnesses who must also sign in the presence of the person making the will, one another, and the notary.

As for the size of his estate, that will not be known until the executor files an inventory which is required by Massachusetts law.  Even then, the picture of Kennedy’s wealth will be incomplete as presumably, many of his assets were already in trust.  We also know, that because he was a US Senator, that many assets were held and managed in blind trusts created during his lifetime.

As more details of the Kennedy estate plan and planning strategies become available we will report them to you.

David M. Frees III

Chairman, Unruh, Turner, Burke and Frees

Trust, Estate, and Wealth Preservation Section

610-933-8069

dfrees@utbf.com

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Sometimes, our lawyers are consulted by a person who wants to leave a spouse, child, or grandchild out of his or her will. That decision might be for a variety of reasons, ranging from the fact that the person being omitted from distributions is very well off and doesn’t need the inheritance to the bad behavior of a relative, or to a breakdown of a personal or family relationship.

Whatever the reason, there are a few facts and laws that you should consider whenever you are omitting a person who might normally be considered the natural object of your bounty” and therefore a person likely to inherit under your will.

First, Pennsylvania law does not permit you to completely disinherit a spouse. Of course, a valid and binding prenuptial agreement might alter this rule. But, if you do not have a prenuptial agreement, and you do disinherit a souse, he of she is permitted to “elect against” your estate and to claim a sizable portion of your probate estate (and often some non probate assets). However, this is a complicated matter under the law and you should consult legal counsel if you are contemplating a claim or disinheriting a spouse.

Unlike a spouse, children, and grandchildren have no statutory right to inherit. However, direct lineal descendant’s often have an expectation of inheritance (rightly or wrongly) and it is important to take measures to be clear in your plan documents and related documents (such as beneficiary designations) to avoid litigation following your death.

These measures can include a carefully worded clause to verify that the exclusion is intentional and not just by mistake, proving for a smaller gift which is eliminated if the recipient challenges the will, and clarifying whether gifts are intended to include step children and their descendants, or just your naturally born issue.

Finally, extra care and precautions should be taken to insure that the will can withstand common challenges. Verifying testamentary capacity, the lack of duress, and the careful execution of the documents in exact accordance with state law will all be important.

For more information on making sure that your will, trust, and estate planning documents are well drafted and can withstand a challenge following your death, watch these videos on making your will bullet proof by David M. Frees III.

Bullet Proof Your Will Parts One – Five

Click here for more information about David M. Frees III, Esquire
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David M. Frees III Esquire
610-933-8069
dfrees@utbf.com

David has been rated a 9.7 Superb by the lawyer rating service AVVO.
David Frees Chairs the Trust, Estate, and Wealth Preservation Section
of Unruh, Turner, Burke and Frees.

He has offices located in Phoenixville, Malverm and West Chester Pennsylvania.
These offices serve clients through out the state of Pennsylvania including
Chester County, Montgomery County, Buck, Berks, and Lancaster Counties.

For an appointment with David Frees please call 610-933-8069 for Donna or Denise.
Mention this blog post when making your appointment.

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Click here to get your free copy of this valuable executor resource for Pennsylvania executors.

If you are an executor, or, if you are trying to decide who to appoint as an Executor, make sure to order and read this important report for executors by David M. Frees III.

This report examines the most common mistakes executors make and how to avoid them.

If you want to do a great job as executor and avoid personal liability, or to pick just the right person, then this is an important resource that you have to read. Click here to get the 10 Most Common Mistakes Executors Make and How To Avoid Them.

Author: David M Frees III, Esquire
To order a copy by phone, call 610-933-8069

To view David Frees’ attorney Rating by AVVO of “Superb!” click here.

To visit our content filled web site for executors visist www.paestateplanners.com – it is filled with articles for Pennsylvania executors, trustees and for those planning their estate, wills, and trusts.

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Historically, executor fees in Pennsylvania and how much can be charged by an executor, have been governed by fee guidelines as opposed to state statutory fees. For a review of a common fee guideline, see my article on the Johnson Estate Guidelines on Executor Fees.

As a result, the probate courts have always had the ability to review and to reduce fees that the judge felt were unreasonable. Courts have been especially willing to do this in cases involving disabled persons and minors.

Likewise, the family and beneficiaries have often requested that an executor charge lower fees than might be permitted where the estate administration is simple. This does occasionally result in some tension with the executor as beneficiaries who have never been an executor assume that all estates are simple. The reality is, that , estates with businesses, closely held stock, real estate and/or many beneficiaries can be very difficult and time consuming.

But, if you would like to know the identity of a very powerful party that has an interest in reducing executor’s fees then see my recent article in www.paestateplanners.com. To see the article on executors fees in Pennsylvania just click this link.

David M. Frees III
David M. Frees III writes extensively on the issues facing executors and trustees and advises banks, trust companies, and individuals on the issues involved in estate and trust administration in Pennsylvania.

For an appointment or telephone consultation call David’s assistants/paralegals at 610-933-8069

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Be sure to click the arrow to the right to see even more videos on protecting your will and estate plan from attack.

Many clients are concerned because they have heard for or been involved in family will disputes. And, when you go to the time, trouble, expense and effort of executing a will, trust, or other estate planning tools, you want to be sure that they get carried out.

And, while no one can prevent a disinherited heir, or angry beneficiary from mounting a will challenge, there are a number of things that you and your advisors can do to minimize the likelihood of a will challenge and to ensure that will challenges fail if they are commenced.

If you have a plan that gives more of a business or other asset to one or more children than others, if you have a plan that is other than an equal division between or amoung your heirs, if you have a second marriage or children by multiple marriages, then ensuring that your will (or estate plan) is accurate, and that it will survive any challenges is essential.

Please watch this video and click on the link below to see even more techniques.

More techniques for protecting your will and estate plan from attack.

David M. Frees III
Trusts, Estates, and Wealth Preservation Section Chariman
Unruh, Turner, Burke and Frees
610-933-8069

Call for an appointment or a consultation about
protecting your estate plan from attack.
David’s paralegal/assistants are Tara, Denise, and Donna

dfrees@utbf.com

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Click here to get your free copy of this valuable executor resource for Pennsylvania executors.

If you are an executor, or, if you are trying to decide who to appoint as an Executor, make sure to order and read this important report for executors by David M. Frees III.

This report examines the most common mistakes executors make and how to avoid them.

If you want to do a great job as executor and avoid personal liability, or to pick just the right person, then this is an important resource that you have to read. Click here to get the 10 Most Common Mistakes Executors Make and How To Avoid Them.

Author: David M Frees III, Esquire
To order a copy by phone, call 610-933-8069

To view David Frees’ attorney Rating by AVVO of “Superb!” click here.

To visit our content filled web site for executors visist www.paestateplanners.com – it is filled with articles for Pennsylvania executors, trustees and for those planning their estate, wills, and trusts.

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Periodically clients ask “Do I even need a will?” And, you would expect a lawyer who drafts wills, and trusts, and asset protection plans in Pennsylvania to say yes. And, you should know, that I believe in the value of what I help people to do. And, I have seen many examples of little or no estate planning or outdated documents that just don’t work. When that happens, families spend too much money, pay too much in taxes or take to long to get the state administered.

However, just read this article on what happens when there is no will (or even a few paragraphs) and you’ll know why you need a will. Literally, everyone was fighting and even the lawyers were potentially suing one another – before an estate was even started.

The quick answer: Update your planning and make sure that you at the very least have a valid will. Anything less is an invitation for legal and tax problems that can often be completely avoided.

David M. Frees III, Esquire
610-933-8069
David’s practice is limited to representing executors and trustees and to
helping clients with estate planning, wills, trusts, and asset protection.

If you have questions involving other areas of the law ranging from
corporate issues to real estate or even about anything personal such as
an employment or injury claim we will help you, at no charge to find the right
lawyer within our firm or even outside of the firm.

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If you are an executor of a Pennsylvania estate, read this artcile before you hire counsel. The one thing that families, beneficiaries and executors all want is to minimize the costs of probate and even administering a trust or estate not subject to probate. Most firms still charge according to fee guidelines, or on an hourly basis. For many reasons, this may not be in your best interest. Find out more about flat fees for estate lawyers and probate.

David M. Frees III, Esquire
Chairman
Trust, Estate, and Wealth Preservation Section
David Frees’ AVVO Rating
610-933-8069

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With the cost of 4 year college educations continuing to soar

and, to out pace inflation, many of us are wondering how to save for our children. There are a variety of tools ranging from multiple 529 plans to UTMA accounts, to trusts, and outright savings in the parent’s own names.

But, if you want to know how the President of the United States of America is saving for his daughters, then the public disclosure of his gift tax returns and the Wall Street Journal have the answer. This is a great article on the advantages of front loading a 529 plan which can be done by parents and/or grandparents or other relatives without filing a gift tax return. And, now is a good time to consider such gifts as the market is so low that the gift might be able to grow substantially before it is needed.

Now how to get the money to put into the plan? That is another question.

Enjoy. Leave a question or comment below.

David M. Frees III, Esquire
David Frees’ AVVO Rating is a Superb 9.5
Unruh, Turner, Burke and Frees
610-933-8069
dfrees@utbf.com
David assistants Donna, Denise, Tra and Whitney can be reached to set up a telephone or in person appointment with David.

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