Simplifying the Probate Process for Our Clients
When a loved one dies, family members are full of grief and often come together to remember the deceased. However, the probate and estate administration processes begin almost immediately. In Pennsylvania, a loved one’s estate must pass through probate, a court-supervised process for paying your loved one’s bills and transferring assets. Other administration involves managing a trust, which the deceased might have used in place of a will.
At Keystone Elder Law, P.C., our Harrisburg probate & estate administration lawyers can help anyone with these steps. Please contact our firm if you have questions. Personal representatives owe family members important duties, so it is best to obtain legal advice if you are unsure of what the law requires.
What is Probate?
Probate is the state’s method of closing a person’s estate. It is a predetermined process with steps you must take.
Probate begins with filing a petition with the Register of Wills. The will should identify who will serve as the personal representative for the estate. Some people die without a will, which means they die “intestate.” Probate is still necessary, even when a person dies intestate, and the probate court will appoint a personal representative.
The probate judge should issue letters to appoint the personal representative, who can then begin fulfilling their important duties:
- Identifying all estate assets: The personal representative should gather these assets and keep them safe. For example, you might need to purchase insurance or continue to pay insurance to protect against damage or theft.
- Accounting for assets: The personal representative is the “eyes and ears” of the probate court. They must account for all estate assets and estimate their value.
- Paying valid creditor claims: The personal representative is responsible for paying the decedent’s outstanding debts. They use estate assets. If the claim is invalid, the creditor must reject it.
- Distributing assets: A will should state who will inherit the estate assets. The personal representative must arrange for transferring deeds or titles and physically handing over assets.
- Paying taxes: The personal representative must pay the taxes for the decedent and possibly pay estate taxes.
Non-Probate Assets
Estate administration is more than probate. Some people die with non-probate assets, such as a living trust or retirement accounts. These assets do not go through probate, but they might still require administration.
For example, a trustee should follow the terms of the trust, which might involve transferring ownership of assets to beneficiaries. In other cases, a trustee must continue to manage the assets of beneficiaries.
Legal Issues Involved with Probate & Estate Administration
Keystone Elder Law, P.C., can help family members and personal representatives with any legal issues that arise during estate administration:
- Questions whether a will or trust is valid—The decedent might have lacked the capacity to create a will, or the will is missing key information. Family members might challenge these documents and ask the court to set them aside.
- Issues regarding asset collection and safekeeping—The decedent might have loaned a car to someone who doesn’t want to give it back. The representative might need to take legal action to recover estate assets.
- Appointment of the personal representative—Arguments might arise if the person nominated in a will cannot serve or if there was no will. Family members might fight among themselves about who should serve.
- Creditor disputes—An alleged creditor might submit a questionable claim. They could initiate a legal claim against the estate if the claim is rejected.
- Wrongful death issues—If your loved one died in an accident, then the representative might file a legal claim in probate for compensation.
- Asset liquidation—The estate might not have enough cash to pay all creditors, in which case the personal representative must liquidate assets to free up cash. Sometimes the personal representative is unsure of what assets to sell because they will be denying a beneficiary from inheriting the asset.
- Disputes over fiduciary duties—The personal representative must follow the instructions in the will and cannot engage in self-dealing. Family members might wish to challenge actions made by the representative.
Keystone Elder Law can help anyone serving as a personal representative with these issues. We can also advise family members of their rights.
Speak with Our Lawyers Today
Probate is often confusing. Many family members are unsure of what to do, and the clerk court is not a legal advisor. If you have questions, please contact Keystone Elder Law, P.C., today to speak with a member of our team. We have helped clients with countless probate issues, and we are eager to hear your questions.
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REGISTER HERE for LONG-TERM CARE PLANNINGPower of Attorney
A Power of Attorney can be used to give another person the right to sell a car, home, or other property in the place of the maker of the Power of Attorney. A Power of Attorney might be used to allow another person to sign a contract for the maker of the Power of Attorney (the person who makes a power of attorney is called the “principal”). It can be used to give another person the authority to make health care decisions, do financial transactions, or sign legal documents that the principal cannot do for one reason or another. With few exceptions, Powers of Attorney can give others the right to do any legal acts that the makers of the Powers of Attorney could do them themselves. A General Power of Attorney gives the “power of attorney Agent” or simply “Agent” (the legal name of the person who is authorized to act for the principal) very broad powers to do almost every legal act that the principal can do. When Elder Law Attorneys draft general Powers of Attorney, they still list the types of things the Agent can do but these powers are very broad. People often do general Powers of Attorney to plan ahead for the day when they may not be able to take care of things themselves. By doing the General Power of Attorney, they designate someone who can do these things for them.
Normal Powers of Attorney terminate if and when the principal becomes incompetent. Yet many people do Powers of Attorney for the sole purpose of designating someone else to act for them if they cannot act for themselves. It is precisely when persons can no longer do for themselves that a Power of Attorney is most valuable. To remedy this inconsistency, the law created a Durable Power of Attorney that remains effective even if a person becomes incompetent. The only thing that distinguishes a Durable Power of Attorney from a regular Power of Attorney is special wording that states that the power survives the principal’s incapacity. Even a Durable Power of Attorney, however, may be terminated under certain circumstances if court proceedings are filed. Most Powers of Attorney done today are durable.
Yes. At the time the Power of Attorney is signed, the principal must be capable of understanding the document. Although a Power of Attorney is still valid if and when a person becomes incompetent, the principal must understand what he or she is signing at the moment of execution. That means a person can be suffering from dementia or Alzheimer’s Disease or be otherwise incompetent sometimes but as long as they have a lucid moment and are competent at the moment they sign the Power of Attorney, it is valid even if they do not remember signing it at a later date. At the time it is signed, the principal must know what the Power of Attorney does, whom they are giving the Power of Attorney to, and what property may be affected by the Power of Attorney.
Any competent person eighteen years of age and older can serve as an agent. Certain financial institutions can also serve. There is no course of education that agent must complete or any test that Agent must pass. Because a Power of Attorney is such a potentially powerful document, agents should be chosen for reliability and trustworthiness. In the wrong hands, a Power of Attorney can be a license to steal. It can be a big responsibility to serve as an agent.
For Medicaid
Medicare is health insurance and covers medical services such as physician appointments, therapy, blood tests, x rays, medical procedures and hospitalization. Medicare will sometime pay for rehabilitation in a long-term care facility for a period of 20 to 100 days, but not longer. In long-term care, Medicaid covers the cost of ongoing support services for daily functioning, such as room and board in a nursing home.
Medicaid is a federal program that is overseen by the Center for Medicare and Medicaid Services (CMS). In Pennsylvania, Medicaid is called Medical Assistance and is administered by the Department of Human Services (DHS).
In Pennsylvania, Medicaid funds are not available to pay for assisted living or personal care.
For Medicaid to pay for care in a nursing home, an individual recipient must be determined to need a nursing home level of care by a physician and the local Office of Aging. An individual whose income is not greater than three times the poverty level may keep up to $8,000 of total resources, but may otherwise keep only $2,400. The cash value of life insurance counts as a resource, but one car and a residential home does not count as a resource.
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Empowering Clients with Holistic Planning at
Keystone Elder Law
At Keystone Elder Law, we believe that the physical, social, legal, and financial considerations of our clients all intertwine. We utilize an interdisciplinary approach to evaluate each area, which allows for the creation of a plan that addresses the concerns of the individual as a whole as well as the family. To this end, our model of practice includes a Care Coordinator (usually a nurse or social worker), whose expertise complements our team of attorneys.
When the road of life is smooth, decisions about legal and financial matters are easy to push aside for “a rainy day.” Planning ahead, however, will allow for more options as you view the map of where you’ve been and where you want to go. Don’t let a crisis limit your choices or derail your plans.
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