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Probate & Estate Law Archives

Gotten Married Lately?

Marriage is an exciting time for any couple, but in recent months, that excitement may have reignited with GLBT couples, when the Supreme Court ruled this past June that all states must recognize the marriage of same-sex couples.

The Two-Witness Rule to Lost Wills

Pennsylvania has long required the oath or affirmation of two witnesses to prove both the execution and the contents of a lost Will. The reasoning behind the "two witness" rule has always been to preserve the intent of the testator, or drafter of the will. But what happens when the two-witness rule works against the intent of the testator? The Pennsylvania Supreme Court is currently grappling with this issue on appeal. The case, In Re: Estate of Wilner, 92 A.3d 1201 (Pa. Super. 2014), urged the Supreme Court to accept appeal and revisit the two-witness rule when the evidence at trial suggested that the intestate heir, who was not named in the will, destroyed the will to her benefit.

But My Father Was Incapacitated When He Sold The Sports Car He Left To Me In His Will - Am I Entitled to The Proceeds Of That Sale? ADEMPTION AND INCAPACITY In Pennsylvania

Ademption occurs when a specific gift in a will is no longer part of the estate at the time of death. For example, a father drafts a will leaving his red sports car to his son. Before Father's death, however, he sells the sports car. Because the sports car is no longer owned by Father at the time of his death the specific gift of the sports car to Son is said to be adeemed, with the result that this gift is not available for distribution to the beneficiary named in the will. If, however, father was adjudicated incapacitated prior to the sale of the sports car, son may be entitled to a gift such as the proceeds of the sale of the sports car. The Probate, Estates and Fiduciaries Code, 20 Pa.C.S.A. ยง 2514(16.1) reads as follows:

I've Just Been Appointed A Guardian of An Incapacitated Person, What Does That Mean?

When a person reaches a point where they are unable to function either daily or manage their own finances the court may appoint a guardian if the person is adjudicated an "incapacitated person." If the incapacitated person only needs aid or assistance in their daily functioning, the court may appoint a guardian of the pers on. If, however, the incapacitated person can function in their day-to-day life, but is having problems managing their financing, the court may appoint a guardian of the estate to manage their finances. Often times, however, a person may require both types of guardians. A court may choose to vest in a single person as the "plenary guardian" of both the estate and the person. Although the guardian is vested with the ability to make many decisions on behalf of the incapacitated person, even medical decisions, the power is not absolute.

MY ADOPTIVE PARENTS JUST DIED? DO I HAVE INHERITANCE RIGHTS UNDER THE WILL?

Imagine you're the parent of two children, one is your natural, and one who is your adopted child. When you draft your will, you leave your entire estate to your "children." Using the word "children" is not uncommon even where there is only one child at the time of drafting because the testator may have another child in his/her lifetime and using this generic term will relieve the need to update the will. But does the word "child" or "children" impact the rights of an adopted child to inherit under a will? What about the adopted child's rights, if any, further down the genetic line?

Who Has Standing to Challenge a Will?

When a person dies with a will, they are said to die testate. The will typically appoints an executor (male) or executrix (female) to fulfill the wishes of the deceased. Sometimes, the executor is also a named beneficiary of the will, although this is not always the case. For practical purposes, this could include selling real estate, personalty, and closing bank accounts and distributing it as per the will. When a person dies without a will, they are said to die intestate. Instead of an executor or executrix being appointed in the body of the will an administrator is appointed to fulfill the same roles and duties as the executor. The executor/executrix/administrator are considered "personal representatives" of the estate. But what do you do if you believe the personal representative is not acting appropriately? Perhaps you have strong suspicions that the personal representative is pilfering money that does not belong to him or her. The first question you have to ask is do you have standing to do anything?

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