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Stepmama Drama: How a will ensures that all of your loved ones are protected

Not less than once a week, I hear a client say something to the effect of, “my wife wouldn’t do that!” or “My kids are really good…They won’t fight when I die.” There’s also the infamous, “They all get along – they won’t fight over the few bucks I have.”

Though I may not know your spouse/partner/girlfriend or children, one thing I do know is that death and money make people do funny things. At Conti Law, we receive numerous phone calls requesting advice about what to do when a loved one dies. It’s not necessarily the process behind the settlement that’s the problem. Rather, it’s oftentimes a party who is refusing to act or to follow the will or trust instrument. This person may have taken the role as the personal representative as a power trip or is refusing any open dialogue with the beneficiaries.

All too often, clients have told me that, after the person who held the family together passed, the family structure as they knew it fractured. Without the appropriate planning, your spouse/partner/ child/loved one who you intended to receive something at the time of your death may not. Unfortunately, your intention alone holds no weight in the court of law. Without strict proof, like an executed will or trust agreement, you may be setting your family up for failure.

One of the hardest conversations I’ve had is with a surviving spouse whose name was not recorded on a deed prior to their spouse’s passing. I have to explain to them that unless there is a will and it explicitly states that they are to receive the house or their spouse’s asset, then the distribution is based on the Pennsylvania intestacy law. The Pennsylvania intestacy law dictates who, based on their relationship with the decedent, receives what percentage of the decedent’s assets. Just because you were married at the time of your death does not mean that your spouse inherits all of your stuff. In Pennsylvania, you cannot disinherit a spouse, but you can limit what they get by failing to either create a will or add them to your will.

What makes it worse is that if your spouse and your children – whether they are from a previous relationship or a result of your marriage – do not get along, then the interested parties may be looking forward to a trial.

Recently, I had a spouse tell me that it wasn’t fair that she had six months to get out of the residence that she had lived in for the last three decades. Unfortunately, her name was not on the deed instrument and, therefore, when her husband passed away, the children wanted their share of the proceeds from the house. Another unknown is that if the party residing at the house chooses to stay longer than six months, fair market rent must be paid to the estate.

You may not think that your family would ever stoop so low as to kick your elderly spouse out of the residence that they have called their own but, believe me when I tell you, it happens every day. Where will they go? How are they to afford rent? How will they determine what assets inside of the house are theirs and what belong to the estate? These are all questions for the court to decide, but you may not like the answer.

I implore you to make sure that your estate plan, no matter how basic you may believe it to be, is established before you pass. Otherwise, you may be creating a powder keg that your loved ones won’t experience unscathed.