December 2019

Donald Petrille, Jr. | December 30, 2019

Advanced Healthcare Directives in PA

Advanced Healthcare Directives are a necessary group of documents when planning an estate of a loved one, no matter their age.

When planning your estate, it is often the best time to discuss how you would like your health care decisions to be made with a living attorney near you in the event you cannot communicate your wishes. Read on for more information on the importance of advanced healthcare directives, definitions to important terms and what they can all mean to you or a loved one in the unfortunate event they may come into play.

What's the difference between a Living Will and Advanced Healthcare Directives?

While “living will” is used broadly, in the event you wish to name another to make health care decisions for you, the document is technically a “healthcare power of attorney.” A “living will” generally doesn’t appoint another person to make decisions. Generally, living wills and healthcare powers of attorney are jointly referred to as “Advanced Healthcare Directives.” Features of living wills and healthcare powers of attorney can be combined into one, comprehensive document.

In a living will or power of attorney, one can state the specific types of care one would like to receive during an end-stage medical condition when incompetent to make decisions. Often these questions involve whether an individual would want to be placed on a ventilator, to receive antibiotics or chemotherapy, CPR, defibrillation and/or artificial food and nutrition. All of these are deeply personal decisions and should be made in consultation with family, professionals and/or religious advisors. In the following paragraphs, we break down what some of these terms mean in the event they could happen.

Many people broadly use the term “living will” to refer to a document that instructs doctors and other professionals regarding your wishes for health care treatment. if you are incompetent, and either (a) in an end-stage medical condition; or (b) permanently unconscious, this document you created in "advance", will guide professionals as to what your wishes are.

What is considered "incompetence" in PA?

Pennsylvania law defines “incompetence” as the inability to understand the benefits, risks, and alternatives involved in health care decisions. It also states that a person who is unable to communicate health care decisions, or a person who is unable to make a decision regarding a health care decision, is incompetent.

When would a living will take effect?

A living will is only effective upon incompetence. It is important to note that an individual may be incompetent to make certain healthcare decisions, but may be competent to make other decisions.

What is considered an end-stage medical condition in Pennsylvania?

The concept of an “end-stage medical condition” is important to understand. Under Pennsylvania law, an end-stage medical condition is:

an incurable and irreversible medical condition in advanced state that, in the opinion of an attending physician, will result in death, despite continued medical treatment, to a reasonable degree of medical certainty.

An end-stage medical condition does not preclude care that can extend or improve life, or would relieve pain.

What does "permanent unconsciousness" mean in Pennsylvania?

It is also important that you understand Pennsylvania’s definition of “permanent unconsciousness". An individual is permanently unconscious if they have been diagnosed, to a reasonable degree of medical certainty, that they are in an irreversible vegetative state, or irreversible coma. One view of permanent unconsciousness involves the lack of ability to interact with your environment.

What is dementia and/or Alzheimer's considered in PA? How is it treated?

Perhaps the most dogging question people face in this day and age is how to treat severe dementia or Alzheimer’s. There is a growing trend to deem individuals who have severe dementia or Alzheimer’s as having an end-stage medical condition.

Your living will should specify your wishes in that regard. Often, an individual with severe dementia, through aggressive treatment, can make a full physical recovery from a physical injury or an illness such as pneumonia. However, that individual would still have the same mental faculties as before the injury or illness.

This decision, admittedly, puts many people in a quandary, but through good counseling, and an understanding of the various decision-making consequences, our living will attorneys have found that our clients gradually become comfortable with their decisions.

Who should have Advanced Healthcare Directives?

As our society gets older, and our life expectancy increases, there tends to be greater needs for advanced healthcare directives. Drafting an advanced healthcare directive, in consultation with your lawyer, will ensure that doctors, social workers, and the legal system will treat you with the dignity that you deserve if you are ever unable to make your own medical decisions.

If you have any questions about living wills or estate planning overall, please contact one of our living wills attorneys at our Norristown or Doylestown law offices by calling 610-275-0700 or by emailing of our specific attorneys on the Estate Planning page. Our attorneys are conveniently located in Montgomery and Bucks Counties in Southeastern Pennsylvania.

The information above is general: we recommend that you consult an attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Joel D. Rosen | December 20, 2019

Understanding the Franchise Disclosure Document

Getting to know the types of franchise disclosures and some of the red flags can be very helpful to any prospective franchisee.

If you have ever looked into acquiring a franchise, you are probably familiar with the term Franchise Disclosure Document (“FDD”), which is a newer term for and for Uniform Franchise Offering Circular (“UFOC”). The FDD has replaced the UFOC in name, but the disclosures in the document have remained largely the same.

The Franchise Disclosure Document has 23 listed “Items” and numerous exhibits, all required by federal law. Roughly half of the Items are simply an analysis of the franchise agreement, which is an attachment to the FDD.

What's the difference between a Franchise Disclosure Document and a Franchise Agreement?

While the analysis may be helpful, the franchise agreement is binding (an obligation that cannot be broken) and the FDD is not. Understanding the franchise agreement is a topic for another day. The remaining Items and the information they convey can add critical insight into the health and strength of the franchisor, whether it is growing or shrinking and whether it is a good or not so good investment.

The FDD is broken down in items, that we'll go into detail below.

Item 1 – in the first item of the FDD, you find out about the type of business you are buying, how long the franchisor has been selling franchises, what kinds of competition exist and other relevant facts. Item 1 sets the framework for your basic understanding of the franchise opportunity being offered.

Item 2 – this item describes the business experience of the principal officers of the franchisor. A franchisor owns the rights and trademarks and has the power to grant a license to a third party to use the marks of the franchise. The best franchise companies have experienced leadership with Individuals who understand franchising, not just the business opportunity being offered.

Operating a restaurant and, for example, selling restaurants and making sure the individuals buying those restaurants are successful, are two vastly different businesses requiring different business skills. Look for franchisors that are knowledgeable about their industry but also knowledgeable about franchising and running a successful franchisor.

Item 3 - identifies litigation in which the franchisor is a party. If this Item has numerous disclosures of lawsuits between the franchisor and individual franchisees, stop, read no further, keep your money in your pocket and look for another franchise opportunity. Regardless of the reasons for the litigation, you don’t want to be involved with a litigious franchisor and multiple lawsuits are both a distraction and a financial drain. There are other opportunities.

Item 4 - is bankruptcy. If the Item doesn’t state that there is no information that needs to be disclosed, then you have another red flag. But in this case, check the financial disclosures the franchisor makes as part of Item 21 and the Exhibits to the FDD to determine if it is financially sound. If it is not financially sound and there is a history of bankruptcy, that’s probably not a winning combination. In fact, with or without a history of bankruptcy, if the franchisor is not financially sound, it is probably best not to invest your money in that franchise system.

Items, 5, 6 and 7 - are all financial disclosures. Review these carefully with your financial advisor. Prepare a pro forma (financial statement that calculates projections) and determine what your annual costs will be and the revenue you need to cover costs, pay any debt service you may have and bring home enough to live on. Your financial analysis is a critical part of determining whether this is the right business opportunity for you.

Items 8 through 17 - contain information that can also be found in the franchise agreement. The franchise agreement is what controls, so here is where experienced legal counsel can advise you if the franchise agreement is fair to the franchisee, more standard in the industry (which typically heavily favors the franchisor) or so severe as to be unfair to the franchisee and even a bar to pursue the franchise opportunity. Some franchisors are so intent on protecting themselves they do so to the extreme detriment of the franchisee.

Item 18 - identifies public figures associated with the franchise.

Item 19 - contains financial information which should be reviewed carefully as discussed above.

Item 20 - contains all kinds of helpful information on both franchised outlets and company owned outlets. Is the franchise system growing? Is the franchisor selling new units but then they fail to open in a reasonable timeframe? Are existing franchisees selling and getting out of the system? Are units simply closing and not being replaced? Obviously, these are important questions and there answers can paint a picture as to whether the franchised system is growing, declining or stagnant.

Item 21 - - contains financial information which should be reviewed carefully as discussed above.

Item 22 - lists the contracts attached as exhibits to the FDD.

Item 23 - is simply a receipt signed by the prospective franchisee acknowledging that she/he received the FDD and the date of receipt.

Prospective franchisees can get a good deal of information from the FDD and franchise agreement in determining whether a particular franchise opportunity is the right one for them. A good final check is to call some successful franchisees and some ex-franchisees that may have failed (or left the system for one reason or another). Doing your due diligence can mean the difference between future success or failure.

If you have questions about franchises or the franchise disclosure document, please contact Joel D. Rosen at 610-275-0700 or jrosen@highswartz.com. Our Franchise Law attorneys provide comprehensive legal services to assist in all of these matters.

Mary Cushing Doherty | December 9, 2019

Mary Cushing Doherty's Observation About PA House Bill 1397

On December 9th, 2019, Mary responded on behalf of the Pennsylvania Chapter of the American Academy of Matrimonial Lawyers regarding PA custody statutes. Her presentation was to Representatives Delozier and Davis as well as the sub-committee on Family Law.

Thank you Representatives Delozier and Davis for the opportunity to present my observation about House Bill 1397 to you and the sub-committee on Family Law. I join Maria Cognetti as members of the Pennsylvania Chapter of the American Academy of Matrimonial Lawyers (we have been Fellows for over 30 years) and of the Joint State Government Advisory Commission Committee on Domestic Relations Law (on which we have each served since its formation in 1993). I am the presenter for the Pennsylvania Chapter of the American Academy of Matrimonial Lawyers.

There is one central custody principle for our Pennsylvania statutes, procedures and judicial decisions in response to the dilemma of parents separating: What is in the best interests of each child? When a change to our custody statutes is considered, our legislators should ask themselves: Is this legislation helping to serve the best interests of the children involved? Thank you for the chance to let me explain the position of the Academy of Matrimonial Lawyers, Pennsylvania Chapter. The Fellows of the American Academy of Matrimonial Lawyers adamantly disagree with legislation such as House Bill 1397 because it will unquestionably adversely affect the children of Pennsylvania.

This Committee is also hearing from the Pennsylvania Psychological Association. Experienced family lawyers who have represented families in custody litigation can provide first hand knowledge to support the findings of the Pennsylvania Psychological Association which argue against any presumption for physical custody. “Because of the unique characteristics of each family, a parenting arrangement needs to be made that matches the abilities of the parents with the developmental needs of the children to assure the healthy growth and adjustment of children”. While many children do well in shared custody arrangements, the psychologists note the adjustment of children “is most effective when parents communicate respectfully with each other for the welfare of their children, and when they do not expose the children to ongoing hostility, conflict or violence”.1 Therefore, it is not the shared custody schedule that helps parents be better parents, but rather the parents’ shared goal to shield children from parental conflict.

This is what the lawyers see – that high conflict couples are the ones most often involved in difficult custody litigation. Too many of those parents, who fail to recognize how their conflict hurts their children, claim that if they have physical custody 50%, or close to 50% of the time, it will be best for their children. A law mandating presumed 50% or close to 50% custody time for each parents puts the schedule first and foremost. That puts the concern for the children second. This law would mandate significant shared time instead of the first inquiry: Will the proposed physical custody schedule serve the children’s best interests?

I’ve practiced family law for over 40 years. I began in the late 1970s when our caselaw embraced the tender years presumption favoring mothers of young children. In my parents’ era, that presumption may have made sense, but it became unfair for many fathers, particularly as traditional parenting roles changed. In the early 1980s, the courts questioned racial bias. In the 1982 opinion written by the eminent Superior Court Judge Edmund Spaeth in Custody of Temos v. Temos, the Pennsylvania Superior Court overruled the implicit presumption of a trial judge in favor of a white father over a white mother who was spending weekends with a black man.

Judge Spaeth wrote in 1982:
In terms of legal reasoning, the lower court’s error was to think in terms of presumptions…This sort of reasoning used to be typical in child custody cases…But courts may no longer reason by presumption in child custody cases. In a custody dispute between parents, no one has the burden of proof; no presumption may be resorted to instead, the court must determine according to the evidence in the particular case before it what will serve their child’s best interests. Ellerbe v. Hooks, 490 Pa 363, 416 A2d 512 (1980) cited in Custody of Temos v. Temos, 304 Pa. Super. 82, 450 A2d 111, at 121 (1982), emphasis added.

A father left his wife and girls, ages 1 and 3, because he couldn’t handle the responsibility of raising his girls, only to move in with his pregnant girlfriend;
A parent of a teenager announced plans to move in with the parent of the child’s classmate;
A parent of a child diagnosed with Asperger Syndrome served as the primary caretaker who attended to the child’s routines for years;
The child’s fights with one parent drove a wedge between the couple and the parents separated to stop the escalating drama in the home; and
A hard-drinking, hard-living couple split up after the father went to rehab and assumed sole responsibility for care of their children.

In any of these scenarios should any of those children be faced with a presumption to spend half their time with each parent until the court sorts out the best interests of children? As others will explain, this bill creates a heavy burden to overcome the initial “out of the gate” order for substantially equal physical custody.

Interestingly this bill labels a shared physical custody schedule as “shared parenting time”. Shared parenting starts when the couple first have children. I’m encouraged to see most of my custody clients who are in their early 40s or younger have been raising their children cooperatively. If they live near each other after separating, many parents come to their lawyers assuming they will share physical custody equally or close to 50-50.

The new judges routinely ask every parent in custody court: “During your testimony, I want to know your view on each of the factors”. As the case proceeds the judge considers the factors, not presumptions, and after thoughtful analysis awards physical custody based on what is best for the children.

As being reported by Maria Cognetti, the Joint State Government Commission Domestic Relations Advisory Committee has resumed the review of our custody statute and other family laws. Changes will be helpful which put the best interests of our children first. The lawyers active in the Advisory committee, Pennsylvania Bar Association Family Law Section leadership and the AAML Fellows, along with psychologists with the Pennsylvanian Psychological Association, are ready to work with concerned legislators like you to foster progress. Focus on helping parents co-parent once they are separated or divorced will lead to putting children first to reach an appropriate shared physical custody schedule. We need to do this as the facts and circumstances allow but reject the mandated presumptions in House Bill 1397.

Respectfully submitted,

Mary Cushing Doherty
on behalf of the Pennsylvania Chapter, American Academy of Matrimonial Lawyers

1 Testimony of Pennsylvania Psychological Association for House Judiciary Committee Hearing on December 17, 2009.

High Swartz | December 6, 2019

Tips for Custody Battles

These valuable tips for custody battles can make the difference between winning or losing.

When custody is part of a divorce or just the amicable split of an unmarried couple, most parties hope the child custody arrangements can be agreed upon quickly and amicably. Unfortunately, child custody can become contentious. If custody has to be decided by a judge or arbitrator, you can help your position by following these tips for custody battles. When in doubt, talk with a good custody lawyer near you. Our custody lawyers serve clients in Montgomery County and Bucks County, PA.

Understand the factors involving the best interests of your children.

Judges consider a child's best interests when awarding sole or shared custody. Familiarize yourself with those factors and comply with them. You can find the 16 custody factors in PA here. You might even want to review them with your custody lawyer to see where you might confront issues in court.

Don't badmouth your ex out of anger.

Airing your grievances with the other parent may be emotionally satisfying. Still, ultimately, it can be very damaging if it's not for the safety of the children. Unpleasant sentiments about your ex are harmful when said within earshot of your children – that's still their father or mother you're talking about. They may remember the worst of your outbursts for a very long time.

In addition, these feelings have an uncanny knack for finding their way back to their subject. Particularly extreme ideas, even if said in the heat of anger or pain and not intended to be taken seriously, can be taken out of context, with potentially dire consequences for child custody.

An essential tip for custody battles - cool it with social media posts!

Or, at the very least, start thinking carefully about what information you share on social media and who can see it. Even if you're no longer "friends" with the other parent on Facebook, Snapchat, or other platforms, others who know them might be willing to share your social media activity with them.

Even if the information that reaches them seems harmless, it's easier than many realize to take social media posts out of context and use them to put their author in a bad light – in front of friends, family, and often family court judges.

If you have any doubts about whether your posts can be inflammatory, talk with a custody lawyer.

With custody battles, document EVERYTHING.

Keep a diary or calendar of any communications, events, incidents, or even confrontations with the other parent, mainly if they involve the children or their schedule. In a contentious custody dispute, knowing what information might be relevant to a domestic relations office or a family court judge ahead of time is difficult. And by all means, it pays to give that documentation to your child custody lawyer.

Encourage your child(ren) to have a relationship with the other parent.

One of the most unfortunate choices in custody battles that one or both parents can make is to attempt to place the children in the impossible role of choosing sides. That happens when one or both parents ask the children effectively to pick sides in the split by pressuring them to express a preference for one parent or a dislike for the other.

There are reams of psychological information on how damaging this is to a child's sense of familial belonging. Still, it also has the effect of making the custody dispute an order of magnitude more adversarial.

Please encourage your children, through words and actions, to have a relationship with both parents. There are exceptions to this guidance, particularly in cases where the other parent may have committed abuse. In these situations, consult your custody lawyer about the options, including supervised visitation.

Work with your custody lawyer on a visitation schedule. Be specific.

The custody schedule should spell out the days, times, and locations of when and where the children will transfer from one parent's custody to the other. In addition to the routine custody transfers, language should cover major holidays, birthdays, anniversaries, and coordinating vacation travel with the child custody schedule.

Specific doesn't have to mean rigid.

Well done – you've worked out a custody schedule with your ex. Now that you have, though, be flexible. The schedule should be a guideline, not a hard and fast rule. Life is often chaotic and unpredictable. Work schedules change on short notice. Cars break down. Illness strikes. When your ex asks you to adjust the schedule, look for reasons to accommodate rather than obstruct.

When something unexpected happens, you might need them to be flexible. Laying the foundations for practical cooperation in the early stages of your custody arrangements will help the entire family's relationships over the long run.

Support family traditions in a custody battle (even if not your own).

As mentioned, trying to enlist your children's support on your side of a custody dispute is a no-no (see #4). That said, ensuring they're comfortable and happy in your home will help your case in the view of any third parties examining the child custody question.

One of the best ways to do this is by ensuring the continuity of any family-specific routines to which the children have become accustomed. If the other parent read them a story or sang them a song at bedtime, it's time for you to pick up the routine. The same goes for any practices or traditions associated with birthdays, holidays, religious observances, etc.

Welcome new family traditions.

Even as you work to preserve the routines and traditions to which your children have become accustomed, it's essential to create a new and different family unit from what came before. It is possible—and encouraged—to celebrate that unity without disparaging the past. Create new traditions and routines that help your children develop a sense of identity around the home they share with you.

Give your child an outlet outside of the home.

The division of your marital home can affect your children profoundly, even if they appear to be "doing fine." Seek information and support to assist your children in coping during the custody battle.

Many children, however, will not be entirely comfortable discussing all their feelings with either of their newly separated parents. Try to ensure they have another trusted adult they can talk to. That person may be a grandparent, a family friend, a teacher, a coach, or a paid counselor.

Families can survive the end of their parent's relationship.

Even when there are disputes over the specifics of child custody, it's the fortunate truth that most parents have a genuine, heartfelt interest in their children's well-being. Used as a basis for common ground rather than rivalry, a sound, and sustainable child custody agreement can help a divided family maintain a modified form of unity that will provide the children with a sense of security and stability until adulthood and beyond.

Parents who have a custody battle and split don't need to drag their children through the mud. Remember to put your children first by setting the best parental example possible if you are part of a custody dispute. And know this: family courts are very intolerant of selfish antics. A good custody lawyer can help keep you focused on your children and avoid side antics that compromise your case.

Make sure you choose the right child custody lawyer.

Each custody battle is different, and the facts in every case are unique to the family involved. Work closely with your custody lawyer to help you identify and articulate your objectives, develop a sound understanding of your rights and obligations under the law, and execute the right legal strategy for your goals and circumstances.

Child custody battles are some of the most difficult to deal with, no matter the parents' marital status. Our lawyers know that every case is different, and the people involved in these cases may feel vulnerable and overwhelmed.

Each of us has focused our practice on Family Law and Domestic Relations because we, for our reasons, felt the need to pay attention to the more personal and human side of the law. We don't work on cases; we work with people.

If you have any questions about child custody in PA, please contact us at 1-833-LAW-1914 or via our contact form. We have experienced custody lawyers in our Bucks County and Montgomery County law offices.

The information above is general: we recommend consulting a child custody attorney regarding your circumstances. The content of this information isn't considered legal advice or a substitute for legal representation.

High Swartz | December 5, 2019

Why is Establishing the “Date of Separation” important in a divorce?

Depending on your date of separation, the value of your marital estate and any award of alimony could be vastly different.

In Pennsylvania, the date that you are deemed to be separated from your spouse, is an important date in your divorce matter for a number of reasons including when the divorce can move forward in the court system and how your marital assets and debts are valued.. It is unsurprising that this date can be disputed and highly emotional.

Why does the date of separation matter?

There are two primary reasons why the date of separation is important in as divorce.

No Fault Divorce. There are two types of “no-fault” divorces in Pennsylvania. The first type is where you and your spouse consent to the divorce moving forward and execute paperwork stating that is their intent. The second type of “no-fault” divorce is often called a “one year separation” divorce. In a “one year separation” divorce, the party pursuing the divorce (you or your spouse) must be able to establish that you two have lived “separate and apart” for a period of one (1) year before the divorce case can be moved forward.

Marital Property. In Pennsylvania, all of the assets and debts that you acquired from the date you and your spouse were married until the date that you separated, regardless of how the asset is titled, are marital property subject to division in the divorce. There are some exceptions to this rule, including gifts and inheritances, but generally, everything acquired during the marriage goes into the pot, so to speak, to be divided up in a fair manner.

The date that you separate from your spouse is also the date that you stop acquiring marital assets and debts together. In some cases, the value of the marital estate can be drastically different depending on when the parties were officially separated.

For example, if you, after you separated, continued to add to your retirement funds each paycheck, those funds are your separate property, not subject to division by the court in your divorce. The date that you separated would be important to determine which of those retirement contributions will be shared with your spouse, and which will not.

How is the date of separation established?

Section 3103 of the PA Divorce Code (found at 23 Pa.C.S. 3103) tells us that you and your spouse have lived “separate and apart” when there has been a “cessation of cohabitation, whether living in the same residence or not.”

The Courts in our state have spent a lot of time examining what qualifies as a “cessation of cohabitation” and what does not. One overarching requirement has emerged from those court cases which is that one spouse must intend to dissolve the marriage (i.e. get a divorce) and must clearly communicate that to the other spouse.

One of the clearest indications that the parties are living “separate and apart” is when one of the parties moves out and makes it clear that they are not returning to the joint home.

What if the couple continues to live in the same house during divorce proceedings?

Under Section 3103, filing paperwork with the court to start a divorce (called the Divorce Complaint) and then providing that paperwork to your spouse creates a presumption that the parties live “separate and apart.” The date that your spouse is on formal notice that you are seeking a divorce through the court system is the date that you are separated.

For some couples, neither of the above scenarios apply: neither party has moved out of the shared home and neither party has filed and served the Divorce Complaint. In those situations, the analysis of when the parties separated can be trickier and less clear. The Court will look at the facts each party puts forward to decide whether the parties ever established a date of separation and, if so, when that date was. For an examination of some of the facts that the Court might consider, review this summary by High Swartz Family Law attorney Missy Boyd..

Establishing a clear date of separation is incredibly important to your case. If you are thinking about a divorce, consult with an attorney before taking any formal steps to ensure that you are correctly establishing your date of separation and understand the implications of that date.

For more information feel free to contact family lawyer Elizabeth C. Early at 610-275-0700 or by email at eearly@highswartz.com

Visit the firm’s Family Law page here.

The information above is general: we recommend that you consult a family law attorney regarding your specific circumstances. The content of this information is not meant to be considered as legal advice or a substitute for legal representation.

Stephanie A. Henrick | December 4, 2019

Ancillary Probate and How To Avoid It

Just when you thought you were done with the fine print of a dead loved one's will, you find an "ancillary" problem, in another state.

In the following paragraphs, we offer a brief understanding of probate, ancillary probate, and how one can avoid this sometimes tricky situation. Talk to an estate lawyer for more insights.

What is ancillary probate?

Ancillary probate is a second probate proceeding necessary when a decedent (the person who has died) has a property to transfer in a state other than the one handling their estate.

To fully understand ancillary probate, you first need to understand probate.

What is probate?

Basically, probate is a court-supervised process in which the decedent’s Will is authenticated, the decedent’s debts are paid and the remaining assets are distributed to beneficiaries. That is the short version.

The long-form definition of probate is that petitions are filed, notices are published, executors/administrators are appointed, lawyers and accountants are hired, income, estate, and inheritance tax returns are prepared, etc. Like any other process, it can be smooth and efficient, or long, expensive, and complicated. We take a deeper dive into probate in another article found here.

In either event, it is a process that occurs in the state where the decedent resided, and with the exception of federal estate and income taxes, that state’s law governs the proceedings. Make sure you work with an estate lawyer conversant in your state laws.

When is "regular" probate not enough?

The potential problem arises because each state court’s power or jurisdiction extends only to real property within that state.

So, if you’re a Pennsylvania resident, your estate would be probated in Pennsylvania, under Pennsylvania law. But only your real property in Pennsylvania and all tangible personal property would be subject to those proceedings.

So, the question is, what happens when a decedent resides in one state but owns real property in another state? The answer is, a second, or ancillary, probate proceeding must be held in the other state. If the decedent owned property in three or four different states, well, you can see where this is going.

Is this necessarily a problem?

Well, not if you are one of those rare individuals who enjoy a lot of court proceedings. All kidding aside, multiple court proceedings result in multiple fees and court costs. It may mean multiple estate attorneys, ancillary executors, and accountants, and of course their fees. It may even lead to additional travel and time.

Above all, it means adding another level of complexity to a process that may already be complicated.

How can I avoid ancillary probate?

So, if you are a resident of Pennsylvania and own a winter home in Florida or some other sunny state, what can you do to avoid the added cost, time, and complexity of ancillary probate? We have the answers below.

Lifetime gifts

You could consider lifetime gifts, which basically consist of retitling your property, adding your children as co-owners with a right of survivorship. This consists of joint ownership, and the surviving owner absorbs the full ownership when the other owner dies.

For example, if you own a Florida vacation home that you intend to leave to your children, you could lifetime gift the home to them, and upon your death—as a matter of law—the property will pass to your children without the need for any court proceeding.

Life estate

You could also gift the home outright to your children while retaining a “life estate” in the property. Your children would own the property, but as long as you lived, you would have the right to use the property and have the responsibility for maintaining it.

Great, so what are the downsides?

These are simple solutions that would make ancillary probate unnecessary. But they do have their drawbacks. Such lifetime transfers may have tax or Medicaid consequences. The transfers may subject your property to the debts and liabilities of your children. Such transfers also limit or prohibit your ability to sell the property should the need or desire arise.

Living trust

Another more flexible solution is placing your property in a “living trust”. A living trust is a fully revocable trust which becomes irrevocable upon your death. The trust, rather than you, actually owns the property. You, as the trustee of the trust, would retain full control of the property. Upon your death, the trustee would distribute the assets owned by the trust to the beneficiaries named in the trust documents, avoiding the need for probate or ancillary probate.

The benefit of a living trust is again, its flexibility. As a trustee, you have total control over the trust property. As settlor and trustee, you control and can change how and to whom the trust assets are paid. Finally, if circumstances change, you retain the right to revoke the trust altogether and have the property returned to you, personally.

These are some simple solutions for simple problems. For even more complex issues, like business or investment properties in other states, you can structure your ownership interests, through stocks, partnerships, and LLCs in ways that those out-of-state interests pass in-state through your will or outside of probate altogether. A trust and estate attorney can determine what works best for you.

There is no “one size fits all” solution to guarantee an orderly, efficient transfer of your property to your beneficiaries upon death. Each solution has its own pros and cons, some of which may or may not be relevant to your situation.

The attorneys at High Swartz can help you tailor your estate planning to ensure that your assets go where and how you want them, as simply, quickly, and efficiently as possible, hopefully avoiding the need for any ancillary probate proceedings. Please call us at 1-833-LAW-1914 or visit our Estate Planning page for individual estate lawyers and email addresses.