Practice Area: Wills

A revocable trust is worth considering as part of your estate plan. In case you've never thought about estate planning, it's crucial to securing your financial future. Estate plans offer several benefits:

• Protects your assets
• Ensures fulfillment of your wishes
• Minimizes estate taxes
• Eliminates probate court

A comprehensive estate plan includes a power of attorney, will, and advanced healthcare directive. Another powerful tool in estate planning is the revocable trust, a living or inter vivos trust.

It allows you to manage your assets during your lifetime. It also allows you to distribute them upon your death. And, as the name implies, the key feature of the trust is that you can change it, making it a valuable estate planning tool.

Revocable Trusts vs. Irrevocable Trusts

Although you can change a revocable living trust, that's not the case with an irrevocable trust, at least not without more effort. It requires the consent of the beneficiaries.

Otherwise, you can petition the court to modify the trust under a theory such as "changed circumstances." For example, you may seek to change the trust owing to a tax law change.

The other key difference between the two is control. With a revocable living trust, you retain control and ownership of the assets. You can also pass control to a successor trustee.

With an irrevocable living trust, on the other hand, you transfer ownership to the trust. That offers some advantages:

• reducing estate taxes
• gift tax exemptions through a gifting trust
• ensuring that children on government benefits don't lose them through a special needs trust
• shielding from creditors

Here's a comparison of irrevocable vs. revocable trusts:

Benefits of a Revocable Living Trust

An estate attorney can help you decide which type of trust suits your circumstances. Revocable trusts offer several benefits in estate planning.

• Avoidance of Probate: Assets in the trust bypass the often costly and time-consuming probate process. The assets also typically take precedence over those in your will.
• Privacy and Confidentiality: Revocable trusts are not subject to public records, offering greater privacy for your estate.
• Flexibility: Grantors can amend or revoke the trust as circumstances change.
• Planning for Incapacity: It can outline plans for your care in case of incapacity.
• Tax Benefits: While revocable trusts don't provide significant tax benefits, they can be part of a broader tax strategy. For example, you can include provisions to transfer wealth by creating a credit shelter should you die.
• Avoiding Challenges: A will may create disputes, with family members challenging it. With a trust, you can disinherit anyone who challenges it.
• Segregation of Assets: For married couples with substantial separate property assets, you can keep those assets from community property.

You can't include retirement savings, health accounts, cars, and money in a revocable living trust. The same holds for assets held in other countries. However, you can include bank accounts in a trust.

How to Create a Trust

To create a revocable trust, follow these steps:

1. Identify the assets to include in the trust.
2. Select a trustee who will manage the trust's assets.
3. Draft the trust document specifying the distribution of assets.
4. Fund the trust by transferring ownership of assets into it.
5. Maintain and update the trust as necessary to reflect changing circumstances.

Talk with an estate attorney near you to ensure you correctly set up the revocable trust. Each state has differences in trust laws. That said, a trust drawn up in one state is valid in any state. However, some differences between jurisdictions may make it advisable to review and modify your trust. You can get more information on revocable trusts in PA here.

Our Estate Attorneys Can Help with Trust Creation

Regardless of the type of trust, our estate attorneys can offer guidance. We have law offices in Norristown and Doylestown, PA. We can also help with other estate planning documents, such as POAs, wills, and advanced care directives.

Do you need a lawyer to create a valid will? Short answer: no. If you have a basic, straightforward estate, you can use an online service to create one. Even so, there are some essentials to ensuring your will is valid.

Each state has laws defining what constitutes a valid will. Consequently, making sure you fully comprehend Pennsylvania will laws is a must regarding how to write a valid will. For instance, if you elect to use an online service, select one that has a customized template for Pennsylvania.

However, as your estate grows in complexity, it becomes more critical to consult with an estate attorney or will lawyer near you. They'll ensure that you cover all necessary details and that the will is valid in Pennsylvania.

Writing a Valid Will in Pennsylvania

The rules for writing a valid will in Pennsylvania are pretty straightforward.

You must:

1. Be 18 years or older and of sound mind.
2. Create the will on paper. It can be typed or hand-written (aka a holographic will). However, alternative forms like audio, video, or other digitally created files render the will invalid. So, courts will not recognize it.
3. Sign the will. However, there is no legal requirement for the will to be witnessed when signed to be considered valid.

Although you don't need witnesses to make your will valid, they may be required at probate to prove the validity of your will. However, Pennsylvania law allows for creating a self-proving will to avoid this requirement.

Self-Proving Will

A self-proving will requires that you sign your will in the presence of two witnesses, known as subscribing witnesses. Then you, as the testator (the will creator), and they as witnesses sign affidavits stating who you are and that you signed your will in the presence of witnesses.

The process requires a notary who then notarizes your signatures. A self-proving will is readily admitted to probate as valid in Pennsylvania.

If you have questions about creating a self-proving will when you want to make sure you write a valid will, you should consult with a will lawyer or estate attorney.

Authenticating Your Will in Pennsylvania

If a will is not self-proving, the Register of Wills for your PA county requires witness testimony to validate the will. So, they must authenticate the will before admitting it to probate. Most often, this testimony comes in the form of an affidavit.

If a subscribing witness (a witness who signs the document at the end) testifies, you must file an "oath of subscribing witness" with the Register of Wills. However, if a non-subscribing witness testifies, the non-subscribing witness must verify that they are familiar with the signature of the testator/decedent (person who has died). In addition, they must verify that they recognize the signature of the testator/decedent.

Contrastingly, a subscribing witness must sign the will for it to be valid.

Validity of a Will When the Testator Can't Sign

Pennsylvania law recognizes that some people may not be able to sign their names. Therefore, it allows another person to sign the testator's will. Otherwise, the testator may merely make a mark indicating their consent to write a valid will.

As you may imagine, the standard of proof in these instances is more significant than a will bearing the full signature of the testator. Pennsylvania law requires two subscribing witnesses to verify the signature or mark a case where the testator can't sign.

How to Write a Valid Will: Case Law in Pennsylvania

The case of In Re: Staccio, 143 A.3d 983 (Pa. Super. 2016) tested these Pennsylvania law provisions. In this case, the decedent was weak and sick, so the decedent's girlfriend helped him make his signature.

The testator's attorney witnessed the signature and testified that the testator was fully aware of his actions and the consequences of signing the will. The attorney, however, was the only subscribing witness to the will.

The Superior Court held that a person signing a will, even with another's assistance, doesn't need to meet the higher threshold imposed upon those signing with a mark or by another person.

It's essential to note that the court found that the testator was aware and asked for help signing the will. The testator did not ask his girlfriend to sign the will on his behalf.

What to Include in Your Will

Your will presents your wishes for property distribution and other concerns following your death. Typically, it addresses these concerns:

• Listing of property and assets
• Assigning beneficiaries to those property and assets
• Assignment of an executor
• The naming of a guardian for children
• Naming someone to care for pets

Remember, your will addresses settling your estate after your passing. It doesn't address concerns like advanced medical directives or end-of-life care.

Revoking Your Will

A valid will becomes a legally binding document. However, you can change it any time. You can revoke your will by taking any of these steps when writing a valid will:

• Destroying your will
• Creating a new will stating that you revoke the previous one
• Writing a document stating you revoke the will and notarizing it

You can create an addendum or codicil citing the adjustment if the changes are minor. Just remember that the appendix is validated the same way as your will.

The Importance of Writing a Valid Will

A will avoids probate, so your property can pass to your beneficiaries automatically. Otherwise, courts determine the distribution of your assets through the probate process. As a result, your property is subject to intestate distribution based on state laws concerning descent and distribution.

Fortunately, a valid will forgoes the probate process making it far more straightforward and less costly.

Talk to an Estate Attorney or Will Lawyer

Even if you decide to create your own will, it makes sense to consult with an estate attorney or will lawyer on how to write a valid will. They can provide insights into critical items that might impact the validity of your will.

As mentioned, if you have a complex estate, an experienced attorney can not only draft a valid will but also support you with other estate documents like a living will.

Get in touch with our local firm. We have law offices practicing estate planning in Doylestown and Norristown, PA. U.S. News recognized our firm on its Best Law Firm Rankings and cited several of our attorneys on the Best Lawyers List.