Creating an Estate Plan Involving a Disabled Child

Alberts Law, Estate Planning, ,

You may have heard of “special needs” trusts, particularly if you have a disabled child. A third-party Supplemental Needs Trust (SNT) often is considered a variation of this type of trust. However, in Pennsylvania, the third-party SNT grew out of a number of court cases as a way of helping someone on government means-tested benefits without making them ineligible for those benefits, which often include Supplemental Security Income (SSI) and Medicaid (or Medical Assistance in Pennsylvania), by providing additional fund犀利士
s and resources that won’t count against the individual’s eligibility. The benefits have strict financial requirements that can make estate planning when a disabled child is involved difficult, to say the least.

Due to these difficulties, various types of trusts and other possibilities, some more drastic in nature, are considerations when a disabled child (regardless of age) generally would be included in an estate plan. Parents could decide to disinherit the disabled child but often do not feel comfortable with this simple but seemingly harsh solution to protecting the person’s means-tested benefits. One common consideration is to leave share that the disabled child would inherit to another sibling, for example, with instructions that the sibling is to use this for the benefit of the disabled child. The inherent danger with this idea is that the parent’s wish is not legally binding, which is why it won’t count against the person who is disabled but also provides no guarantee that this plan will succeed as you had hoped. Also, if the other child has debts, the inheritance intended for the disabled child could end up benefitting the second sibling’s creditors, instead.

This may leave you looking upon the idea of disinheriting your disabled child while relying on someone else’s judgment and circumstances to allow your hope that this share of your estate will be used as you had wished to be too risky. If you really do not want to disinherit your disabled child entirely, then you need to explore other options. You could decide on an estate plan that simply leaves the share to your child who receiving SSI, Medical Assistance, or similar benefits, despite the possible consequences regarding such means-tested benefits. The most obvious of these consequences include a likely disqualification of the disabled child for those benefits for some period of time. In the end, there is no gain, only loss, with this plan because the inheritance, at best, merely replaces the government assistance. When you put together your estate plan, you are likely to want to find a better alternative than this option provides.

Particularly when you work with someone who has experience in estate planning, you probably will find out that better options do exist. One of these may be the third-party Supplemental Needs Trust in Pennsylvania. Although this can be hard to make effective when your estate is quite small, it is a powerful tool for helping your disabled child when your estate has enough resources for it to be cost effective and feasible to run in order to carry out your intent.

Importantly, this SNT can be set up in a way that will not jeopardize the government entitlements that the child receives while, at the same time, being available to supplement these benefits for an improved quality of life. Great care must be taken when you plan to use this type of trust because your intent has to be implemented through the document that creates the trust to accomplish your goal of providing additional benefits for your disabled child without putting the any of the other benefits from the government at risk. In the next post, we will look at some key points to remember your estate plan will include a third-party Supplemental Needs Trust.

Complications While Same-Sex Marriage Is Banned in Pennsylvania

Alberts Law, Debt Relief & Bankruptcy, Probate & Estate Administration, Topics of Interest, ,
[Note: On May 20, 2014, Judge John E. Jones III of the U.S. District Court for the Middle District of Pennsylvania actually issued the decision in Whitehead v. Wolf, in which he ruled as he anticipated the U.S. Supreme Court would rule. In short, based on the Due Process and Equal Protection Clauses of the U.S. Constitution, he determined that Pennsylvania could not justify its law banning same-sex marriages. He also entered an injunction against the enforcement of Pennsylvania’s law that was effective as of that date. The Commonwealth did not appeal so May 20, 2014 is the official date that Pennsylvania became part of the tidal wave of states across the nation that, willingly or not, recognized the legality of same-sex marriages.]

 

In Pennsylvania, same-sex marriage does not is against the law. Specifically, in the Domestic Relations Code, the legislature defines marriage as a “contract between one man and one woman” (Section 1102). Unlike its position on common-law marriage that was discussed in the previous post, it also has rejected the concept of comity, in which the laws of other states usually are recognized and respected. Instead, the legislature has invoked the “strong and longstanding public policy” exception to comity in Section 1704 of the Domestic Relations Code so that same-sex marriages, “even if valid where entered into,” are void here.

However, the U.S. Supreme Court’s decision in United   States v. Windsor, et. al. from June of this year may be the start of major changes throughout the country. Windsor dealt with the federal Defense of Marriage Act, in which Congress defined marriage as a union between a man and a woman. The case concerned two women who were married legally in Canada and then moved to New York, which recognized their marriage. The widowed spouse was the beneficiary in the Will, but the IRS forced her to pay the federal estate tax even though a spouse would have been exempt from this tax. With Ms. Windsor believing that she faced unequal treatment due to her gender, she filed the lawsuit that ended up in the Supreme Court. In what was a landmark decision to put it mildly, the Court found the federal definition of marriage unconstitutional, basing this decision mostly on due process grounds.

Marriage generally is a state-law issue. Windsor does not alter this but does affect federal rights and benefits of legally married spouses of the same gender. Changing the type of marriage found in the example in the previous post from a common-law marriage to a validly entered same-sex marriage, the couple who got married legally in Washington, D.C. can remain same-sex partners but no longer are considered spouses when they relocate in Pennsylvania.

While federal law usually supersedes state law, some issues – including marital and property rights – have been left to the states in most circumstances. This is where Windsor leaves many unanswered questions. The Social Security Administration made an effort to deal with this by issuing regulations after the Windsor decision. In the example, the SSA instructs the person who married in Washington, D.C. and then became a Pennsylvania resident to apply for benefits on the work record of her same-gender spouse when eligible because the marriage originally was valid.

Due to residency in Pennsylvania when she applies, the SSA currently will put a hold on the application, but the application does establish the protective filing date for benefits that may be paid later if the same-sex marriage that does not exist in Pennsylvania becomes valid again as it was when the couple resided in Washington, D.C. Meanwhile, had the surviving partner stayed in Washington, D.C., she could receive benefits now.

Bankruptcy law also relies on state law to define numerous rights, including property rights during marriage. Pennsylvania allows people filing for bankruptcy to choose to use federal or state exemptions for property. When a married couple owns their property as tenants by the entireties, this effectively prevents a spouse from transferring any ownership interest to a third party and generally puts the property out of reach for creditors of only one spouse. If most debt belongs to one spouse, the couple may decide that only that spouse will file, using the state exemptions to protect their joint property. However, a tenancy by the entireties can exist only when there is a valid marriage. Pennsylvania, by declaring same-sex marriage void, prohibits a same-sex couple from owning property in this way. Once again, there is different treatment at this point under federal law and under state law for individuals who, but for their genders, would be in the same situation.

Estates also are affected by marital status. Pennsylvania law gives rights to a surviving spouse preventing this spouse from being disinherited due to a deceased spouse’s Will. However, a person who entered into a same-sex marriage prior to settling in Pennsylvania becomes a virtual stranger regarding estate rights when the other person dies – the individual would not have the rights of a spouse. Instead, a Will would need to identify the person and specifically leave property to him or her (although the survivor essentially receives any part of the estate as a friend, not a spouse).

Also, Windsor provided that, regardless of gender, Ms. Windsor was a spouse and would be treated the same as other spouses under federal estate tax law, dropping her tax rate to zero percent as a result. Meanwhile, Pennsylvania’s inheritance-tax rate for a spouse is also zero percent, but, due to a same-sex marriage being void, an unrelated person of the same gender receiving property through a Will falls into the 15-percent tax bracket. In each of these situations, we see different treatment solely due to gender. Such issues will remain as long as same-sex marriage is rejected in Pennsylvania.

Next year could be a watershed year for Pennsylvania marriage law due to numerous court cases that involve possible recognition of same-sex marriages. A change could come soon after June when Whitewood v. Wolf, which directly attacks Pennsylvania’s statutory ban on same-sex marriage, is scheduled to be heard in a federal court in Pennsylvania. The ban on same-sex marriage and its resulting complications easily could be history in Pennsylvania before 2014 ends. Time – and, most likely, the courts – will tell.

The Status of Common-Law Marriage in Pennsylvania

Alberts Law, Debt Relief & Bankruptcy, Probate & Estate Administration, Topics of Interest, , ,

Until January 2, 2005, a woman and a man in Pennsylvania could consider marrying each other without any type of ceremony or written documentation. There was not even any requirement that they lived together for any amount of time, despite a common belief to the contrary. Basically, if there was no reason why they could not marry, such as being too young or being currently married to someone else, they basically needed to exchange words in the present tense – without even needing witnesses – showing that they intended to establish the relationship of wife and husband, and a common-law marriage was created.

A marriage created in this way could create difficulties when one had to prove the date of the marriage or, even, its very existence. As a result, courts made an issue of the problems with marriages that could exist without any documentation. A 1998 decision from the Pennsylvania Supreme Court made clear that the common-law marriage certainly was disfavored but that the legislature would have to act to abolish the practice. Then, in 2003, due to the lack of legislative action, the Commonwealth Court took it upon itself to act in place of the legislature and decided that common-law marriage no longer existed in the Commonwealth of Pennsylvania. Unfortunately, all that this really did was to create more confusion.

With a Pennsylvania court saying one thing and the legislature saying nothing, the government needed to clarify what the law really was. Finally, the legislature passed a statute preventing anyone from attempting to create a common-law marriage beginning with the day after New Year’s Day in 2005. This did not invalidate such unions that took place through January 1, 2005, thereby ensuring that a possible common-law marriage that either the man or the woman involved asserted had occurred prior to the cutoff date still could prove troublesome. However, even with Pennsylvania’s abolition of the right to enter into a common-law marriage, problems caused by this concept remain.

Beyond the difficulties presented by a possible common-law marriage created in Pennsylvania prior to the beginning of 2005, there are problems because some states continue to permit a woman and a man to enter into this type of marriage at this point. They include Alabama, Colorado, Iowa, Kansas, Montana, New Hampshire (for inheritance purposes only), Rhode Island, South Carolina, Texas, Utah (which does add the requirement of an administrative order regarding the marriage), and Washington, D.C.  A com威而鋼
mon-law marriage from any of these states eventually could have an impact in Pennsylvania. While the reason often is thought to be the Full Faith and Credit Clause of the federal Constitution, this is not involved. Instead the concept of comity is the cause.

Through comity, states generally recognize and respect the laws of other states as long as the law is not deemed offensive to public policy in a particular state. Since Pennsylvania has long favored the institution of marriage (between men and women), it continues to recognize common-law marriage, despite the problems with proof that led to practice being abolished here, as long as the marriage occurred in one of the states where it was valid. Although it could not be created here, public policy in Pennsylvania favors marriage so it remains valid as long as it was valid from its beginning.

Therefore, a woman and a man could enter into a common-law marriage in Washington, D.C. in 2011 and then move to Pennsylvania. If the marriage was valid in the District of Columbia, the comity doctrine continues its validity here.

This means that these spouses will have the same rights and obligations that other married couples have in Pennsylvania. They will remain married until death – or until a divorce. While entering a common-law marriage has none of the formalities of a ceremonial marriage, its ending can occur only in the same way that any other marriage can end. Because a divorce is required while both spouses are alive, there can be equitable distribution of marital property. Meanwhile, the death of one of the spouses leaves the other with the same inheritance rights as any other surviving spouse in Pennsylvania has.

In addition, because the marriage is valid, there are rights to payments from the Social Security Administration that can vest when a spouse retires if they have been married for at least ten years. A common-law marriage also affects a bankruptcy. If one spouse basically has all of the debt while property, such as a residence, is owned as tenants by the entireties in Pennsylvania, then the bankruptcy law can be used to protect the house, with only the spouse with the debts filing for bankruptcy to get a fresh start by having these debts discharged. The marriage may have begun elsewhere, but – by the time that the couple has arrived in Pennsylvania – the fact that it was a common-law marriage in the beginning is of no consequence, regardless of Pennsylvania’s abolishing the right to enter into such marriages years ago.

In the next post, we will see another married couple that relocates from Washington, D.C. to Pennsylvania but finds the consequences much different. Instead of a common-law marriage, we’ll look at a couple that has gone through a ceremonial marriage after obtaining a marriage license, making the marriage much easier to prove. This won’t matter once they move to Pennsylvania, where they will be treated as if they virtually are strangers to one another. Their “problem” is that they happen to share not only their lives but also the same gender. The evolving area of law of same-sex marriage and its current (and possible future) implications in our changing society will be examined.

Possible Liability of the Personal Representative of an Estate and How to Avoid It

Alberts Law, Probate & Estate Administration, , ,

The personal representative (known as the executor when a Last Will is being probated or the administrator when a person died without a Last Will) is in charge of handling a decedent’s estate, with one of the major responsibilities being the payment of debts owed by the estate. The personal representative should not pay any debts or distribute any assets until determining if the estate is solvent, what debts exist, and whether or not all of the bills can be paid.

The reason for this is simple: the personal representative can have liability to a creditor that cannot be paid because property was distributed to a beneficiary or heir and also can be liable for an overpayment if a creditor receives more than it should have. Either way, the personal representative would be responsible for making up the difference to creditors that were underpaid.

However, if you end up being the personal representative of an estate, you can avoid any problem with liability by following the path set forth in the applicable laws. When you take the oath to be the estate’s personal representative, you are granted letters to administer the estate. Pennsylvania law requires you to advertise the grant of letters in a local newspaper of general circulation and the designated legal periodical for publishing such notices (for example, the Pittsburgh Legal Journal for Allegheny County).

In general, creditors with unsecured claims (basically, debts for which no estate property is collateral for any debt) have one year from the date of the first full advertisement of the grant of letters to give you notice of their claims. If they fail to do so, then estate property can be distributed without any liability for these claims.

It should be noted that two types of claims are treated specially under the notice requirements when applicable, and you must follow the requirements to avoid potential liability. These include claims that are owed to the Commonwealth or any political subdivision for maintenance of the decedent in an institution in which the decedent died as well as claims owed to the Commonwealth for medical assistance paid on behalf of a decedent for all nursing facility services, home and community-based services, and related hospital and prescription drug services. Both involve time periods that are shorter than one year and require that you inform them of the grant of letters.

Also, an exception is made for any “secured” claim, in which there is estate property that guarantees payment of the claim (up to the value of the property that acts as security for the repayment). This has to be paid even if no notice is given so your potential liability would equal the secured value. Beyond the amount of the secured claim, any additional amount is treated as other unsecured debts are in terms of payment and liability.

When an estate’s assets are not sufficient to pay all of the estate’s debts, Pennsylvania law establishes the order of payment of unsecured claims, which also means liability to the personal representative if debts are paid in the wrong order, leaving debts that should have been paid outstanding. The order is as follows: (1) costs of administration of the estate; (2) the family exemption provided under Pennsylvania law; (3) costs of the decedent’s funeral and burial, costs of medicines furnished to the decedent within six months of death, costs of medical and nursing services (including costs of services furnished under the Commonwealth’s medical assistance program) performed for the decedent within that time, and costs of services performed for the decedent by any of employees within that time; (4) the cost of a grave marker; (5) rent for the occupancy of the decedent’s residence for six months immediately prior to death; (5.1) claims by the Commonwealth and its political subdivisions; and (6) all other claims.

No claim within each class has priority over others in the same class, but claims in a higher ranking class must be paid before payments to the classes that follow. Otherwise, the personal representative faces liability for making improper payments. Also, when an estate is unable to pay all of its debts, the personal representative must pay claims owed to the federal government according to the priority established under federal law. Personal representatives who do not give federal claims their proper priority have liability for these claims if they are not paid.

If you are in charge of an insolvent estate, which cannot pay all of its debts as a result, you can avoid the problems that can arise in this situation by taking necessary precautions to protect against payment mistakes that can trigger liability. For example, a distribution to a beneficiary or heir that is not done with court approval is an “at risk” distribution; if you decide to do this, you at least should have the recipient sign an indemnification agreement requiring repayment to the estate if the property later is needed to pay debts; otherwise, you will be found liable for the incorrect payment. However, the safest course – especially with an insolvent estate – is to prevent personal liability for any distributions simply by not acting until the court approves your proposed actions. You also should consider retaining an estate attorney to help you through this process and its potential minefields.

Social Security Disability: The Trial Work Period and Beyond

Alberts Law, Social Security Disability, ,

The trial work period (TWP) often is misunderstood by people who receive Social Security Disability (SSD) benefits and want to supplement this income by working. You need to be aware of the impact of the TWP before you accept even a part-time job because you could end up losing your SSD benefits and, at some point, find yourself unable to remain in the workforce, leaving you without a steady income.

The trial work period can be difficult to understand because, as often is the case with the Social Security Administration, it often is a lengthy process that has various exceptions. Knowing what the trial work period really means and what rights you have after the end of your TWP can help you to protect yourself from significant difficulties later on.

The first thing to remember is that a trial work period applies only if you receive Social Security Disability. Anyone who only receives Supplemental Security Income, for example, does not have to worry about the meaning of a trial work period. However, you receive SSD (which, in general, is based on your work record), you need to be aware of the impact of completing a TWP.

As suggested above, you really must understand what a “trial work period” actually is before you make plans to attempt to get a job to increase your income.. The Social Security Administration allows people who are disabled to try to return to the work. The TWP looks at work during any period of 60 consecutive months after a person becomes eligible for SSD benefits. If, within any 60-month period after this, there are nine months in which your earnings are at or above a specific amount set by the Social Security Administration prior to each year, then you have completed the trial work period.

SSD recipients sometimes assume that this income level equals the amount for Substantial Gainful Activity (SGA), which are the standard usually used in disability determinations. Actually, income earned during any of the nine months needed to complete a trial work period is around 72 percent of the SGA level. For example, if you worked in 2012 (when SGA was $1010 per month) and earned at least $720 in four months and then earned at least $750 in another four months this year (when SGA equaled earnings of $1050), then you will complete your trial work period after the first month in 2014 that you earn $770 since your earnings in nine months from 2012 into 2014 would be at or above the levels set by the Social Security Administration. It also is important to remember that, counting the initial month of the TWP (which is when your earned income first was greater than the permissible monthly amount), you have to be concerned for 60 consecutive months that your gross earnings do not exceed the monthly level during eight additional months within this period

However, even though the trial work period will end when you have “excessive” income in nine of 60 (or fewer) months, all is not lost in terms of benefits. After the TWP ends, you are entitled to an “Extended Period of Eligibility” (EPE), which lasts for 36 months immediately following the final month of your trial work period. You are eligible for your SSD benefits in any month of this three-year period that your earnings drop below the Substantial Gain Activity level (which is higher than TWP earnings, as explained above). SGA earnings will rise to $1070 in 2014. This payment of SSD benefits will occur during the EPE as long as you have not had a medical improvement that ends your disabling condition – this improvement would end any right to disability benefits. During your Extended Period of Eligibility, you will not receive SSD in any month when your gross earnings are above the Substantial Gainful Activity level. However, because your earned income (and not your health) is the reason that you are not disabled, your case is viewed accordingly. Since your disabling impairment continues, whenever your gross earnings fall below the SGA level, you will receive your monthly SSD payment without having to reapply for disability.

Once the 3-year EPE ends, your right to SSD also can end quickly. In the 37th month after the trial work period ended, you still can receive your SSD benefits as long as you remain medically disabled. Your SSD benefits can continue on a monthly basis until there is a month when your earnings reach the SGA level. When this occurs, you would receive your full SSD benefits for three more months, at which time these payments generally end. There is an exception to this rule, however.

For the first five years after your Extended Period of Eligibility ends, if you cannot continue working at the SGA level due to the disabling impairment that originally made you eligible for SSD, you can request to have your benefits reinstated without being forced to reapply, which would mean starting from the beginning as you did when you first are awarded disability benefits. Instead of a new application, you would request Expedited Re-Instatement, which is a potential way to regain disability benefits that stopped only because of your work and earnings.

The major point to gain from understanding the trial work period and the steps after its completion is that you do not have to avoid working (or attempt to hide this fact from the government) if you receive Social Security Disability. Instead, this shows how you can test your ability to work again, allowing you to find out what your capabilities are despite having a disabling impairment. It also highlights the importance of knowing what the consequences of making this decision if you do not take the time to learn what is permitted under the regulations of the Social Security Administration.

Disability Claims and Unemployment Compensation

Alberts Law, Social Security Disability, ,

At first glance, a disability claim filed with the Social Security Administration and a claim for Unemployment Compensation benefits would seem to be contradictory. After all, when a person files for disability, the individual basically is stating that she is unable to work for health reasons. To file for Unemployment Compensation, that same person is saying that she is “able and available” to work. However, the current position of the Social Security Administration (SSA) is that these two claims can coexist, allowing one person to file for both benefits at the same time.

This policy is found in a memorandum, dated November 15, 2006, which was written by Frank Cristaudo when he was the Chief Administrative Law Judge for the Office of Disability Adjudication and Review (ODAR). He issued the policy to clarify an issue with which some of ODAR’s Administrative Law Judges continue to struggle, even after this directive. There may seem to be something inconsistent when a person collects Unemployment Compensation, reporting to Pennsylvania’s Department of Labor and Industry that they can work, while the same person tells a federal agency that he or she is entitled to benefits because a disability prevents work. However, the issue is not as simple – or inconsistent – as this would seem.

Disability, according to the definition of the Social Security Administration, does not mean that someone is not capable of doing any work. Basically, what disability means when an individual in terms of a claim for benefits filed with the SSA is that the person cannot perform work activities on a full-time basis, which is termed “substantial gainful activity.” This does not mean that this person is unable to do any work at all.

As for Unemployment Compensation in Pennsylvania and many other states, when a person is able and available for work, this includes part-time work and not necessarily a full-time job. In this situation, there are two definitions of work being used, and neither definition actually rules out the other one.

The memorandum does advise Administrative Law Judges that Unemployment Compensation and the work being sought to qualify of this benefit should be considered in determining whether a person is disabled, but it is only one of many factors. In part, the Chief Administrative Law Judge acknowledged the reality that disability determinations by the Social Security Administration generally involve a lengthy process that can force an individual to make the decision to apply for both benefits just to survive the financial hardships that can occur while awaiting a final decision regarding a disability claim.

In fact, one of the SSA’s own regulations directs individuals who apply for Supplemental Security Income (SSI) to apply for all benefits, which includes Unemployment Compensation, for which they could be eligible. To force a person to apply for this and then automatically deny the disability claim because the individual did what was required would lack logic, at the very least.

A final note for the moment involves how receiving Unemployment Compensation affects someone who is receiving SSI, which is a needs-based program (akin to federal welfare), versus someone who gets Social Security Disability (SSD), which is based on a person’s work record. The person who receives SSI and has received Unemployment Compensation will lose some of the SSI payments that would have been received because there is a deduction from the federal payment when there is additional income, such as Unemployment Compensation, available to the individual because this means that there is less need for the SSI, which is based on need.

However, SSD benefits are not tested against a person’s additional income or resources when determining monthly payments. Therefore, the level of Social Security Disability paid to the disabled individual will not be adjusted due to the receipt of Unemployment Compensation. Also, certain other types of income – for example, Worker’s Compensation – cause an offset that is deducted from SSD benefits because Pennsylvania that would require repayment of Worker’s Compensation benefits in this instance if the recipient later is found to have been disabled by the Social Security Administration during the period that the other income was received. Since eligibility for Unemployment Compensation is not based on injury or illness, it does not trigger an offset involving disability benefits.

As always, if there are questions or any need for clarification regarding what can seem to be a complicated system of rules and regulations, you can contact me about these issues.

Diligent Preparation Is Essential When Filing for Bankruptcy

Alberts Law, Debt Relief & Bankruptcy, ,

Preparation is necessary in any area of law, but even the simplest of bankruptcy cases involves a tremendous amount of collaborative preparation between clients and attorneys. A client must provide detailed and extensive information that the attorney must review thoroughly in order to discuss the client’s options, including non-bankruptcy debt relief. Without this, the attorney cannot understand a person’s financial situation and give advice on the range of options to be considered prior to any work in preparation of a bankruptcy filing, if this action would be the best way to achieve a client’s reasonable objectives.

When bankruptcy appears to be the best choice after a thorough assessment of all possibilities, even more preparation and collaboration is required to successfully navigate this process. At its most basic level, bankruptcy involves the interplay among a person’s debts, assets, and budget. A bankruptcy should not be filed unless there is sufficient debt that can be handled through one of the various types of bankruptcy. This amount of debt is somewhat relative as it would depend on your financial situation viewed as a whole because, for example, the less income that you receive in an average month, the fewer non-bankruptcy options that will be available at any level of debt.

Meanwhile, your necessary monthly expenses (such as shelter, utilities, and food) also must be examined closely because, if these expenses generally are larger than income on average during the prior six months or more, then you need to address this problem prior to pursuing a bankruptcy. Again, this means preparation by you to provide all of the information about these financial matters so that the attorney can prepare an accurate analysis of what benefits and problems are likely if you file for bankruptcy.

As for assets, most people want to protect what they have. The attorney needs full disclosure in order to determine what might be lost if you seek the protection under a particular bankruptcy chapter. For example, a basic objective of a Chapter 7 bankruptcy is to discharge debt while protecting property through the use of exemptions. The other common type of bankruptcy for individuals involves Chapter 13 of the Bankruptcy Code. You may have fallen behind on payments of a debt for which specific property of yours acts as collateral, essentially. This could be mortgage debt that is secured by your home. What can you do? It depends on the facts of your situation. Your preparation of these facts for the attorney’s review must be thoroughly for the attorney to be able to present the realistic options that are available to you.

There is a reason that detailed preparation by both you and the attorney is emphasized here. At the beginning of any discussion of a person’s financial problems, the attorney has to see various documents to have solid foundation for developing the set of possible actions that you need to consider. Meanwhile, the attorney has to help you with this preparation by requesting the necessary information. Billing statements, loan documentation, tax returns, paystubs, bank statements, and credit reports are some of the pieces that are required to understand the situation. You and your attorney must work together to put all of the necessary pieces together.

The attorney must take the time to be sure that you are aware of the need for full and accurate disclosure. Debts owed to friends and family are debts that have to be included in a bankruptcy. The inventory of assets has to be complete so that your property can be protected to the greatest degree possible, and the attorney needs to explain how you should go about the process of placing value on all of these items, including clothing and worn-out furniture. Here, the preparation begins with the attorney and ends with you in order to get a complete picture before various schedules and forms that are included in a bankruptcy filing can be drafted. Accuracy and attention to detail are crucial during this collaborative process. Your property may be exempted, allowing you to protect it in a Chapter 7 bankruptcy. However, the attorney has to emphasize the importance of including everything that you own because anything that is not listed generally is not exempted, which means that you may lose it if you decide to file. The attorney has to be observant that things that might be overlooked are included here. Again, preparation is responsibility that falls to both you and your attorney.

In addition to information supplied by the client, the attorney has to look at outside sources, such as public records, to verify and supplement as much as possible. Also, while reviewing the provided information, the attorney must be able to spot inconsistencies in order to know what questions to ask to clarify this situation. For the attorney, preparation goes beyond filling out the forms – finding information, obtaining additional information, and explaining why this is so important are responsibilities that the attorney owes to you as the client as well as to the court. It takes a collaborative effort for end result to be successful.

The Self-Proving Affidavit: A Valuable Addition to Your Will

Alberts Law, Estate Planning, Probate & Estate Administration, , , ,

Most people are aware of the benefits of having a Last Will and Testament. It can make the flow of your property to your chosen beneficiaries proceed much more smoothly as well as allowing you to decide who you want in charge of the process. There are other potential benefits from having this estate planning tool in place when the time comes for the administration of your estate, but the process involved in the preparation of your Last Will holds a key to getting the probate of a Will started smoothly. This involves the inclusion of a self-proving affidavit. 

Once your attorney has finished drafting your Will, you need to sign it at the end of the last page. After doing so, you have a valid legal document that will set forth your estate plan. The absence of witnesses does not affect this because Pennsylvania law does not require anyone to be present when you sign to show that you are the testator and that the document is your Last Will and Testament. However, there have to be two people who can verify that your signature appears at the bottom of the Will when the probate process is being started. The person named as executor in your Will would have to find two people to do this if you did not have witnesses at the time that you signed the Will. If there were witnesses, the executor needs to attempt to find them and, if not possible, would have file an affidavit of diligent search and look for a substitute for each missing witness to take the oath verifying your signature when your Will is to be submitted for probate. If no one who can make the identification can be found, then proof of the signatures of the original witnesses will be satisfactory. A self-proving affidavit makes these possible problems disappear.

This reduces the stress and difficulties at some future time and is easily accomplished if your witnesses are ready to sign after they watch you add your signature at the end of your Will. A self-proving affidavit simply involves the witnesses acknowledging that they saw you do this. In general, the witnesses then sign the self-proving affidavit in front of an officer authorized to administer oaths in Pennsylvania – usually, this person will be a notary public. However, if the testator’s signature and this self-proving affidavit signed by two witnesses are undertaken with only an attorney present, then the attorney must prepare a certification of attorney to be included as part of your Will. In either situation, no one will need to hunt for witnesses in the future.

This is main benefit of having a self-proving affidavit attached to a Will. Your executor can take the Will for probate at the appropriate time without any need to try to find witnesses at a time that may be many years after you first was executed this document, when it can be difficult to find these people for any number of reasons. This makes the executor’s job – w犀利士
hich may be quite involved and could require years to complete – a little easier at the beginning, at least.