Law and Property Rights
What is a will?
A will is a written document which directs how your property is to be distributed upon your death. A will allows you to name an executor and perhaps a trustee to handle the distribution of your estate. It also allows you to designate whom you want to serve as guardian for your minor children.
What is joint tenancy?
Joint tenancy is a way by which two or more people hold title to property in equal and undivided interest. Joint tenancy is usually coupled with the phrase "with right of survivorship." When property is titled as joint tenants with the right of survivorship and one joint tenant dies, his/her share of the property passes automatically to the surviving joint tenant(s). When the last joint tenant dies, the property passes under the terms of that person's will, or, if there is no will, by the intestate laws to his/her heirs.
What if I die without a will?
If you die without having made a will and are a resident of Pennsylvania, then Pennsylvania, not you, has made provisions for the disposition of your property. After certain taxes, exemptions and costs have been paid, the estate of a person who dies without leaving a will is divided in this way: If you leave a spouse but no children or parents, your spouse will receive all of your property.
If you leave a spouse and parents but no children, your spouse receives the first $30,000 of your estate, plus one-half of the remaining property. Your parents receive the other half.
If you leave a spouse and children, and your spouse is the parent of all the children, your spouse receives the first $30,000 plus one-half of the remaining estate. Your children receive the other half in equal shares. (If your children are not of legal age, a guardian may be named by the court.)
If your spouse is not the parent of all of your children, your spouse receives half, and your children receive the other half in equal shares.
If you leave no spouse, your issue will receive your property. If you leave no spouse or issue or parents, your property is distributed to your brothers and sisters, or their issue, otherwise to your grandparents, or their issue.
The laws provide a rigid formula which does not include provisions for friends or charities, and which makes no distinction between family heirlooms and other types of property. Your failure to make a will not only prevents you from making these special bequests, it may benefit relatives you do not even know.
What does a will control?
Wills control only sole name property, commonly referred to as the "Probate Estate." It does not control insurance, IRAs, or joint tenant's WROS (With Rights Of Survivorship).
Is a will the same as an "estate plan"?
No. A will is perhaps the most important part of your estate plan, but it is by no means the only part. The purpose of an estate plan is to make the best use of your financial assets while you are living, avoid the payment of unnecessary taxes, and determine how your property will be distributed upon your death.
This can be accomplished with a will or life insurance policies, various types of trust arrangements, joint tenancy or other methods of property ownership, retirement plans, gifts, a life estate arrangement, partnerships, and other devices. Your attorney will work with you to determine how to tailor an estate plan to fit your particular situation and meet your goals.
Does joint tenancy property go through probate?
Property held in joint tenancy with right of survivorship does not go through probate proceedings. Upon the death of the joint tenant, the survivor becomes the sole owner of the property. However, a portion of the value of the property must be included in the estate for Pennsylvania inheritance tax purposes. Property owned jointly by a husband and wife is treated as though owned by them as joint tenants with the right of survivorship. No portion of the value of the property held jointly by a husband and wife, however, is subject to inheritance tax upon the death of the first joint tenant.