Year: 2020

How Do I Probate A Will In West Chester Pa?

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How Do I Probate A Will In West Chester Pa? – Intro

The Pa Probate process, itself, is a very simple process. However, it is merely the beginning of the Pa Estate Administration (also known as the Pa Estate Settlement) process, which involves settling a decedent’s affairs, and can (and does) involve many, many other steps, depending on many, many other things.

How Do I Probate A Will In West Chester Pa? – Definitions

In United States law and terminology, “probate” refers to proving that a will is valid.

In many U.S. states, a person would petition the court for probate, and then add the will that is to be considered to their petition.

Once probate is approved by the court, the petitioner officially becomes the Executor and then has full legal rights to be able to deal with the deceased individual’s estate.

How Do I Probate A Will In West Chester Pa? – Misunderstandings

Although some states do have onerous Probate procedures (where “avoiding probate” may be a prudent strategy), Pennsylvania is not one of those states, In fact, Pennsylvania is very “Probate-Friendly.”

The most common misconception that surrounds a Pa Last Will is the process called “Probate” and the seemingly universal theme that it should be avoided at all costs.

Again, and virtually to the contrary, the word “Probate” is merely based on the Latin infinitive verb that means “to prove.” Nothing more!

How Do I Probate A Will In West Chester Pa? – Documents

You will need the following documents to probate a Pa Last Will in Wayne PA.

  1. Original Will
  2. Original Death Certificate
  3. Petition For Probate
  4. Estate Information Sheet
  5. Check for the Probate Fee

How Do I Probate A Will In West Chester Pa? – Register of Wills

At the Register of Wills Office, the PA Executor will take an oath and be sworn in as the Executor to the estate. Furthermore, the executor will pay probate fees. These fees depend on the size of the PA Estate.

How Do I Probate A Will In West Chester Pa? – Short Certificates

A Short Certificate is a legal document that shows the decedent’s name and date of death. It will also show the name of the Executor/Executrix who has been named to handle the affairs of the estate.

  • Letters Testamentary (if the decedent had a Pa Last Will; or
  • Letters of Administration (if the decedent did not have a Pa Last Will

Having a Short Certificate indicates that one has been appointed by the Register of Wills and has been issued.

How Do I Probate A Will In West Chester Pa? – Register of Wills Office

The Information below is to assist you in locating the Chester County Register of Wills in order to begin the Probate Process:

  1. Register of Wills
  2. Chester County Justice Center
  3. 201 W. Market Street
  4. West Chester, PA 19380
  5. Monday thru Friday 8:30 am to 4:00 pm.
  6. 610-344-6335

How Do I Probate A Will In West Chester Pa? – Executor Duties

To complete the process of settling an estate, I guide individuals throughout Pennsylvania through the Probate and Estate Administration with confidence and efficiency.

  1. Getting court approval as executor/estate administrator and
  2. Posting bond (if required)
  3. Filing the Last Will with the appropriate probate court
  4. Locating beneficiaries
  5. Finding and assembling assets
  6. Transferring assets from the deceased to the estate
  7. Hiring valuation, genealogy or other experts, when appropriate
  8. Paying creditors and claimants
  9. Collecting amounts owed to the estate
  10. Paying current and delinquent taxes as well as estate taxes
  11. Distributing property to beneficiaries

Executors can easily make mistakes due to inexperience, stress and hasty decisions. This can be costly, as executors can be held personally liable for beneficiaries’ losses. I guide Pa Executors through every step of the probate process, with reliable, detailed advice, so you can settle the testator’s estate as efficiently, quickly and easily as possible.

How Do I Probate A Will In West Chester Pa? – Conclusion

I provide reliable guidance for Pa Testators and Pa Executors. My experience in the probate court, resolving issues related to the validity of wills, enables me to provide practical advice for testators from all walks of life. Similarly, my work in the formation of wills gives us keen insight into how executors should interpret various aspects of a will that may initially seem unclear. Whether you are a testator formulating an estate plan or an executor implementing a decedent’s wishes, John B. Whalen, Jr. Esq. can simplify many complex aspects of the tasks before you. I offer pertinent and personal legal advice to obtain the results you need in a timely manner with the least stress possible.

West Chester Pa Probate Guide

The West Chester Pa Attorneys Guide is the core of this website. It consists of the best, most important articles, posts, and pages on this website. Their focus is to provide the best and most complete information on a particular topic, rather than to sell my services.

John B. Whalen, Jr., JD., LL.M., is an AV Peer Review Rated Preeminent 5.0 and Avvo Rated 10.0 Superb (obtaining over 95 client reviews and peer endorsements) premier and prestigious Attorney and Counselor at Law. He is located at 8 Longwood Drive, Wayne, PA. 19087. He serves all surrounding counties, on all 7 days, from 9:00 AM to 10:00 PM, and on evenings, weekends, and holidays. He provides free initial consults all seven days, provides home visits, and provides flat fee structures. He can be reached by email at [email protected], and by telephone at 1-484-417-6244. He has amassed over 60 prestigious and premier professional awards and over 5000 client reviews and endorsements. Mr. Whalen has achieved the AV Peer Review Rated Preeminent award from Martindale, AV Peer Judicial Preeminent award, the Avvo Rated Superb 10.00 award, the Avvo Rated Top Lawyer award, the Clients’ Choice Award, and the Top One Percent (1%) award. He is the recipient of the Legum Magister Post-Doctorate Degree (LL.M.) in Taxation (from the Villanova University School of Law), a recipient of the American Jurisprudence Award in Wills, Trusts, and Estates (from the Widener University School of Law), and a recipient of the ABA-BNA Law Award for Academic Excellence (from the Widener University School of Law).

December 28, 2020 / / 0 Comments

West Chester Pa Payments Family Funerals

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West Chester Pa Payments Family Funerals

There are alternatives for settling small estates instead of the traditional Probate process. Payments to Family and Funeral Directors is one of them. The profession of law, in general, and the focus of Estate Law, in particular, is a constant balancing act between science and art. Our true hallmark as professionals is when our knowledge of the intricacies of the science is solid enough to lend itself easily to the art of the various situations with which we are presented. Most of the time, our estates do – and rightfully should – follow the traditional, time-tested route of the Probate and Estate Administration process.  Although this line of thinking is in no way wrong, it may be short sighted in certain circumstances where the formal procedures may be neither desired nor required. The essence of our dilemma lies in being able to readily identify and handle those situations where a streamlined approach would be better suited.  Being creatures of habit, however, this is easier said than done.

West Chester Pa Payments Family Funerals – The Statute

The Pennsylvania statute, 20 Pa.C.S.A.  § 3101, Payments to Family and Funeral Directors (Section 3101), contains a few alternatives for use in the settlement of small estates.  Simply stated, it allows for the payment of a decedent’s assets in certain situations with no court documents or no court supervision.  However, despite Section 3101’s simplicity, a stand-off can, and often does, exist between the statute’s theoretical ease and the world’s practical complexity.

On the one hand, the holder of a decedent’s assets does require that certain items (i.e., Short Certificate, Letters Testamentary, Small Estate Decree, etc.) be provided for release of the assets.  As they have the duties to both safeguard the decedent’s assets and release them only to the proper payee, they are certainly allowed to ensure that the one (payment of the assets) will work to cancel out the other (possible future liability).  In light of these responsibilities, any organization which has custody of a decedent’s assets (i.e., banks, brokerage firms, transfer agents, etc.) is often hesitant to release the decedent’s assets without any court documents or to anyone other than the estate’s personal representative.

On the other hand, Section 3101 does not require that any paperwork be provided to the holder of a decedent’s assets.  Reluctance may appear from those unfamiliar with this statute insofar as they don’t understand what to do when they are not provided with their traditionally required items.  As a practical matter, providing the holder of the asset with a copy of Section 3101 could be helpful, because it shows them that they can properly pay the asset and be released from liability.

Section 3101 contains five subsections.  Each subsection handles a particular situation where a decedent’s assets may be paid in the absence of any court documents.  Each subsection contains differences.

They each address different types of assets that can be paid, different organizations by whom they can be paid, different people to whom they can be paid, and different requirements for them to be paid.  More importantly, each subsection contains similarities.

The similarities lay in the fact that they each share five parallel traits which virtually overshadow their differences.  Accordingly, as Section 3101 addresses five scenarios, all of which contain strikingly similar attributes, it may be appropriate to view these parallel characteristics as the five traits.  Further, as the five scenarios, in essence, are exclusions to the dictates of its sister statute, Section 3102, and can be exclusions from the probate process itself independent of Section 3102, it may be convenient to refer to these five scenarios as the five exclusions.  With an understanding of the five traits and the five exclusions, the implementation of any of Section 3101’s situations can occur with relative ease.

West Chester Pa Payments Family Funerals – The Five Traits

Section 3101’s five scenarios share similarities which virtually overshadow their differences, and they are referred to herein as the five traits.  These traits are the asset of the payment, the amount of the payment, the recipient of the payment, the protection of the payor of the payment, and the liability of the recipient of the payment.

Asset

The first trait (of the five traits of Section 3101) describes the asset that can be paid.  These assets include wages, salary, and employee benefits; deposit accounts; patient care accounts; insurance and annuities; and unclaimed property.

Amount

The second trait (of the five traits of Section 3101) describes the amount up to which an asset can be paid. The amounts are $10,000.00 and $11,000.00.

Prior to the statute’s update, these various dollar amounts comprised the sums of $5,000.00 (of wages, salary, and employee benefits); $3,500.00 (of deposit accounts); $3,500.00 and an additional $500.00, for a $4,000.00 total (of patient care accounts); $11,000.00 (of insurance or annuity proceeds); and $11,000.00 (of unclaimed property).

Recipient

The third trait (of the five traits of Section 3101) describes the recipient to whom the asset can be paid.  These recipients include the decedent’s spouse, children, parents, and siblings, in that order of preference (referred to herein as the family hierarchy), and, in one case, a funeral director.  With the lone exception of a funeral director under Section 3010(c), it should be noted that only family members may take advantage of the five exclusions.  The wording of the statute implies that the exclusions are unavailable to agents, guardians, or other fiduciaries.

The fourth trait (of the five traits of Section 3101) describes the protection accorded to the payor of the asset.  This protection releases the payor to the same extent as if the payment was made to a duly appointed personal representative, and covers employers, banks, care facilities, insurance companies, and the State Treasurer.

The fifth trait (of the five traits of Section 3101) describes the liability attached to the payee of the asset.  This liability follows any person to whom payment is made (i.e., the family hierarchy and the funeral director), and holds the recipient answerable to anyone prejudiced by an improper distribution.

West Chester Pa Payments Family Funerals – The Five Exclusions

Section 3101’s five scenarios are, in essence, exceptions to the dictates of its sister statute, Section 3102, as well as the probate process itself, and they are referred to herein as the five exclusions.  These exclusions speak to employers, banking houses, patient facilities, insurance companies, and the State Treasurer.

(a) Wages, salary or employee benefits

The first exclusion (of the five exclusions of Section 3101) speaks to employers.  An employer is permitted to pay the decedent’s wages, salary, or other benefits in an amount up to $10,000.00 to the family hierarchy.

Upon payment, the employer is released and the recipient is liable.  There are no further requirements for payment under the first exclusion, Section 3101(a).

(b) Deposit account

The second exclusion (of the five exclusions of Section 3101) speaks to banking houses.  A banking house (i.e., bank, savings association, savings and loan association, credit union or other savings association) is permitted to pay the decedent’s deposit account in an amount up to $10,000.00 to the family hierarchy.

Upon payment, the banking house is released and the recipient is liable.

There is a further requirement for payment under the second exclusion, Section 3101(b).  The recipient of the item must provide written evidence that the funeral services have been paid (either by a receipt or an affidavit from the funeral home).  Seemingly, not included in the definition of banking house is whether a brokerage firm would fall within the statute’s grip of other savings association.  Presumably, a brokerage account with only a money market account would be included, but a brokerage account containing any other type of investment (i.e., stocks, bonds, and mutual funds) would not be included.

(c) Patient’s care account

The third exclusion (of the five exclusions of Section 3101) speaks to patient facilities, and is a two-step process.  A patient facility is permitted to pay the decedent’s patient care account in an amount up to $10,000.00 to a funeral home for the decedent’s burial expenses.  It is then permitted to pay the balance of the account to the family hierarchy.  The total payment by the patient facility can be in an amount up to $10,000.00.  Upon payment, the patient facility is released and the recipient is liable.

There is a further requirement for payment under the third exclusion, Section 3101(c).  The decedent must have been a qualified recipient of medical assistance from the Pennsylvania Department of Welfare.  Although the wording of the statute implies that this exclusion is unavailable to private-pay patient care accounts, perchance it may not be so restricted in practice.

(d) Life insurance payable to estate

The fourth exclusion (of the five exclusions of Section 3101) speaks to insurance companies.  An insurance company is permitted to pay life, endowment, accident, or health insurance proceeds or annuity proceeds, otherwise payable to the decedent’s estate, in an amount up to $11,000.00 to the family hierarchy.  Upon payment, the insurance company is released and the recipient is liable.

There are two further requirements for payment under the fourth exclusion, Section 3101(d).

The first requirement is that the insurance company must wait sixty (60) days before making payment of the proceeds.

The first requirement and, at the time that the insurance company makes payment of the proceeds, the insurance company must not have received written claim for those proceeds by the decedent’s personal representative.  Presumably, if the insurance company has received written claim for the proceeds by the personal representative, they are duty bound to release those proceeds to the personal representative, and the matter should be investigated further.

(e) Unclaimed property

The fifth exclusion (of the five exclusions of Section 3101), and the newest addition to Section 3101, speaks to the State Treasurer.

The State Treasurer is permitted to pay the decedent’s unclaimed or abandoned property in an amount of up to $11,000.00 to the family hierarchy.

Upon payment, the State Treasurer is released and the recipient is liable.  There are further requirements for payment under the fifth exclusion, Section 3101(e).

The recipient must provide a death certificate, a sworn affidavit containing various averments about the status of a personal representative, and any other information determined by the State Treasurer to be necessary in order to distribute property or pay funds under this section to the proper person.

West Chester Pa Payments Family Funerals – The Conclusion

A review of Section 3101 shows the five traits permeate its allowable payments.  These traits are asset, amount, recipient, protection, and liability.  Keeping these traits in mind, Section 3101 becomes easier to conceptualize.

A review of Section 3101 shows that the five exclusions speak to the various entities that may allow you to circumvent a small estate petition, as well as the probate process.  These exclusions speak to employers, banking houses, patient facilities, insurance companies, and the State Treasurer.

Keeping these exclusions in mind, Section 3101 becomes easier to utilize.  Being creatures of habit, perhaps, this may now be easier done than said.

West Chester Pa Probate Guide

The West Chester Pa Attorneys Guide is the core of this website. It consists of the best, most important articles, posts, and pages on this website. Their focus is to provide the best and most complete information on a particular topic, rather than to sell my services.

John B. Whalen, Jr., JD., LL.M., is an AV Peer Review Rated Preeminent 5.0 and Avvo Rated 10.0 Superb (obtaining over 95 client reviews and peer endorsements) premier and prestigious Attorney and Counselor at Law. He is located at 8 Longwood Drive, Wayne, PA. 19087. He serves all surrounding counties, on all 7 days, from 9:00 AM to 10:00 PM, and on evenings, weekends, and holidays. He provides free initial consults all seven days, provides home visits, and provides flat fee structures. He can be reached by email at [email protected], and by telephone at 1-484-417-6244. He has amassed over 60 prestigious and premier professional awards and over 5000 client reviews and endorsements. Mr. Whalen has achieved the AV Peer Review Rated Preeminent award from Martindale, AV Peer Judicial Preeminent award, the Avvo Rated Superb 10.00 award, the Avvo Rated Top Lawyer award, the Clients’ Choice Award, and the Top One Percent (1%) award. He is the recipient of the Legum Magister Post-Doctorate Degree (LL.M.) in Taxation (from the Villanova University School of Law), a recipient of the American Jurisprudence Award in Wills, Trusts, and Estates (from the Widener University School of Law), and a recipient of the ABA-BNA Law Award for Academic Excellence (from the Widener University School of Law).

November 1, 2020 / / 0 Comments

West Chester Pa USA PATRIOT Act Privacy Rules

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Media Pa USA PATRIOT Act Privacy Rules

Less than two months after September 11th, President Bush signed the USA PATRIOT Act. The USA PATRIOT (Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (the “U.S.A. P.A.T.R.I.O.T.” Act), announced a wide range of new tools to strengthen the U.S. economic system from, in addition to many other things, money laundering, terrorist financing, identity theft, and fraud. Among the tools of the USA PATRIOT Act was Section 326, which virtually overhauled the account-opening process at financial institutions.  Section 326 required that the Treasury Department establish minimum standards with which financial institutions must strictly comply in order to open new accounts.  This note will outline a brief history and a few aspects of Section 326 with which we are all now faced.

Media Pa USA PATRIOT Act Privacy Rules – The History

On July 23, 2002, the Treasury Department issued the Proposed Rules for Section 326, which received overwhelming criticism from all interests.  The criticism ranged from one side advocating for a rule containing an entirely risk-based approach without any minimum identification and verification requirements, to the opposing side desiring a rule with more specific requirements [because a completely] risk-based approach would leave too much room for interpretation.  The overwhelming sentiment from all sides, however, was that the Treasury Department had underestimated the compliance burden that would be imposed on financial institutions.

On April 30, 2003, the Treasury Department adopted the Joint Final Rule for Section 326, which attempted to both increase the verification effectiveness for new accounts and decrease the needless drain on financial institutions.  Changes from the Proposed Rules to the Joint Final Rule included a narrowed definition of customer (i.e., by excluding signatories on accounts) and redefined record-keeping requirements (i.e., by requiring only notations from, not copies of, identity-verifying documents such as driver’s licenses).  Most notably, the Joint Final Rule implemented the Customer Identity Program (C.I.P.) rules.

On October 1, 2003, the C.I.P. rules became mandatory, which dictated that [a]ll financial institutions, regardless of size, have a CIP that contains customer identification and verification procedures.

Media Pa USA PATRIOT Act Privacy Rules – The Purpose

The purpose of a C.I.P. is to ensure that financial institutions know the true identity of those opening accounts.  Each institution’s C.I.P should be risk-based, and should be an integrated part of its Bank Secrecy Act and Anti-Money Laundering programs.

In establishing a C.I.P., Section 326 dictates minimum, not maximum, standards.  Therefore, the measures taken by each financial institution will vary based on many factors.  With respect to the account, aspects will include the account type, the method by which it is opened (i.e., in person or electronically), and the identity verification information provided by the customer.  With respect to the institution, considerations will include its size, location, and customer base.

In activating a C.I.P., Section 326 dictates that it will occur anytime a new customer opens a new account.  However, it may also occur in varying degrees with existing customers and existing accounts.  The essence of the meaning of an account lies in ongoing relationships, not infrequent interactions.  It is defined as a formal relationship to provide or engage in services, dealings or other financial transactions.  The gist of the meaning of customer speaks to both individuals and entities, including estates and trusts.  It is defined as a person opening a new account and an individual who opens a new account for one who lacks legal capacity (i.e., a minor) or an entity that is not a legal person (i.e., a civic group).  Taken together, all of these factors and definitions should allow an institution to conclude that it has a reasonable belief as to a customer’s true identity.

Media Pa USA PATRIOT Act Privacy Rules – The Requirements

The hallmark of a C.I.P. should be flexibility.  Accordingly, the Joint Final Rule begins with the minimum steps for a C.I.P., and then allows each financial institution to develop its own C.I.P., which must be written and approved by the institution’s Board of Directors, by building upon those steps.  The four minimum steps to a CIP are verifying identities, keeping records, comparing lists, and notifying customers.

The 1st Step – Verifying Identities

The first element of a C.I.P is verifying identities.  This step is a two-pronged procedure – the customer provides identifying items and the financial institution validates those identifying items.

To satisfy the first prong, the customer (whether an individual or an entity) must provide three essential pieces of identifying items – name, address, and identification number (with a fourth requirement, date of birth, also required of individuals).

To satisfy the second prong, a financial institution’s C.I.P should specify by what methods (whether documentary proof and/or non-documentary confirmation) it will use to validate the customer’s identifying information.  Worthy of mention is the aspect that, although the Joint Final Rule specifically includes driver’s licenses and passports, it does not preclude other forms of identification.  Presently, however, some institutions only accept these two forms of identification.  Also of note is that the exact requirement of an identification number appears to be somewhat unsettled at this point.  Granted, with respect to estates and trusts, an Employer Identification Number is obligatory, but presently some institutions also require the individual fiduciary’s Social Security Number (as well as address and date of birth).  As a word of caution, the initial information provided to a financial institution for an estate or trust should be closely monitored to ensure that it is coded properly with the Employer Identification Number of the entity, and not the Social Security Number of the individual fiduciary.  Again, as the Joint Final Rule specifies only minimum requirements, it appears that these practices, which may be initially perceived as overreaching, are, in fact, not out of bounds.  The theme to keep in mind is that the financial institution is allowed to form a reasonable belief that it knows the true identity of the customer.

The 2nd Step – Keeping Records

The second element of a C.I.P is keeping records.  In other words, what measures must the financial institution take to document that the first step – verifying identities – was in fact performed.  The C.I.P rules contain a bifurcated record-keeping system.  The identifying information (i.e., name, address, and identification number, and, with individuals, date of birth) must be kept for five years after the account is closed, and all other information must be kept for five years after the record is made.

The 3rd Step – Comparing Lists

The third element of a C.I.P is comparing lists.  The C.I.P must include procedures for determining whether a customer appears on any list of known or suspected terrorist organizations issued by the federal government.  Although this requirement seems quite onerous upon first blush, financial institutions are not required to actively seek out any and all government lists.  Although no “Section 326 Government List” currently exists, it has been stated that the Department of the Treasury will create and provide a “Section 326 List” for the industry to use for this specific purpose.

The 4th Step – Notifying Customers

The fourth element of a C.I.P is notifying customers.  Every institution must provide customers with adequate notice that they are requesting information to verify their identities.  This notice can be either given to the customers on an individual basis, such as a handout, or on a collective basis, such as a placard displayed in the bank.  The statute also has sample language in the regulation that may be used.

Media Pa USA PATRIOT Act Privacy Rules – The Conclusion

The USA PATRIOT Act is a massive tome, with the commentary on it alone capable of filing a small warehouse.  I hope this note offers a little foothold to it.

Media Pa Probate Attorneys Guide

The Media Pa Probate Attorneys Guide is the core of this website. It consists of the best, most important articles, posts, and pages on this website. Their focus is to provide the best and most complete information on a particular topic, rather than to sell my services.

John B. Whalen, Jr., JD., LL.M., is an AV Peer Review Rated Preeminent 5.0 and Avvo Rated 10.0 Superb (obtaining over 95 client reviews and peer endorsements) premier and prestigious Attorney and Counselor at Law. He is located at 8 Longwood Drive, Wayne, PA. 19087. He serves all surrounding counties, on all 7 days, from 9:00 AM to 10:00 PM, and on evenings, weekends, and holidays. He provides free initial consults all seven days, provides home visits, and provides flat fee structures. He can be reached by email at [email protected], and by telephone at 1-484-417-6244. He has amassed over 60 prestigious and premier professional awards and over 5000 client reviews and endorsements. Mr. Whalen has achieved the AV Peer Review Rated Preeminent award from Martindale, AV Peer Judicial Preeminent award, the Avvo Rated Superb 10.00 award, the Avvo Rated Top Lawyer award, the Clients’ Choice Award, and the Top One Percent (1%) award. He is the recipient of the Legum Magister Post-Doctorate Degree (LL.M.) in Taxation (from the Villanova University School of Law), a recipient of the American Jurisprudence Award in Wills, Trusts, and Estates (from the Widener University School of Law), and a recipient of the ABA-BNA Law Award for Academic Excellence (from the Widener University School of Law).

August 10, 2020 / / 0 Comments

West Chester Pa Common Law Marriage

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West Chester Pa Common Law Marriage – Abolished

(Note = This paper was presented on October 20, 2003. Since that time, the Pennsylvania Legislature, did in fact, render common law marriage proactively invalid after January 1, 2005, by statute (23 § 1103), stating that “[n]o common-law marriage contracted after January 1, 2005, shall be valid. Nothing in this part shall be deemed or taken to render any common-law marriage otherwise lawful and contracted on or before January 1, 2005, invalid.” (Nov. 23, 2004, P.L.954, No.144, eff. 60 days)).

West Chester Pa Common Law Marriage – Intro

Common law marriage in Pennsylvania was recognized by the Pennsylvania Supreme Court over one hundred and thirty (130) years ago. Common law marriage in Pennsylvania was questioned by the Pennsylvania Supreme Court five years ago. Common law marriage in Pennsylvania was abolished by the Pennsylvania Commonwealth Court one month ago?

As a caution, however, it is very important to keep in mind that the Commonwealth Court may not be the final word here. Decisions from this court are always subject to being appealed to – and overruled by – the Pennsylvania Supreme Court, and decisions from this court control only a limited scope of lower courts and administrative agencies (i.e., workers compensation, unemployment compensation, certain taxation issues, etc.).

West Chester Pa Common Law Marriage – The Facts

The petitioner filed a fatal claim petition alleging that he was the common law husband of the decedent who had died during the course of her employment.  Because the couple had not been married ceremonially, the facts and circumstances surrounding the nature of their relationship, and the creation – or lack thereof – of their marriage, was the subject of extensive hearings before the Workers Compensation Judge.

Holding that the evidence had proved a valid common law marriage, the Workers Compensation Judge concluded that the petitioner was the common law husband of the decedent. Upon appeal, the Workers Compensation Appeal Board affirmed the Decision of the Judge. Upon further appeal, the Commonwealth Court affirmed the Order of the Appeal Board.

Most notably, and despite a finding of a valid common law marriage in this situation, the Pennsylvania Commonwealth Court abolished common law marriage in Pennsylvania from this point forward.

In a fascinatingly historical and extensively detailed majority opinion, (both factually and legally), as well as an equally well presented, yet briefer, minority opinion, the Commonwealth Court analyzed and reviewed the scenarios and reasons long ago forgotten that gave rise to a doctrine no longer needed.

West Chester Pa Common Law Marriage – The Standard

A common law marriage in Pennsylvania can be proven by two different methods. The first, and primary, test is applied when both of the parties are available to testify. This test requires proof of the exchange of words in the present tense – referred to as “verba in praesenti” – which are to be spoken with the specific purpose of creating the legal relationship of husband and wife. The second, and alternative, test is applied when either of the parties is unavailable to testify. This test then allows the creation of a rebuttable presumption in favor of a common law marriage where there is sufficient proof of cohabitation and reputation of marriage in the community.

As is somewhat evident from these tests, and “[b]ecause claims for the existence of a marriage in the absence of a certified ceremonial marriage present a `fruitful source of perjury and fraud’,” Pennsylvania courts have long viewed such claims [of common law marriage] with hostility.

West Chester Pa Common Law Marriage – The History

The origins of common law marriage are as varied as the misconceptions held regarding what actually creates one.

Their beginnings have been attributed to the informal marriages prevalent throughout European culture during the pre-Reformation. From there, they have been traced through England, brought to the American colonies during its settlement by the English immigrants, and then followed across the United States during its development, where they continued their existence out of necessity due to the lack of access to clergy.

Waves to abolish common law marriage began in the late 19th and early 20th centuries.

Some of the many and varied reasons cited in support of its abolishment included the growing emphasis on protecting both the institution of marriage as well as the protection of the increased wealth of the average citizen.

These trends continued throughout the 20th century, rising again amidst the creation of the many new governmental benefit programs in the latter part of the 20th century. New Jersey abolished common law marriage by statute in 1955, and, in support of its abolition, the New Jersey Supreme Court stated that “[i]t was not without reason that our statute and similar statutes in other states have been popularly referred to as `Heart Balm Acts.” The many abuses arising from common law marriages, with their effect on public morality, private property rights and the legitimacy of children, called for correction. Our Legislature dealt with such mischief in this act in sweeping and emphatic language, permitting no exception or evasion.  “Despite its judicial acceptance in many states, the doctrine of common law marriage is generally frowned on in this country, even in some of the states that have accepted it.” Accordingly, such a status is the product of an antiquated law and inattention to whether there is a need for change.

West Chester Pa Common Law Marriage – The Criticism

However, despite these waves of change, Pennsylvania remains in the minority, being only one of twelve states that still recognizes common law marriage.  Because of this, disapproval of the doctrine has grown harsher and more prevalent, with one of the major areas of concern being that of estate law. It has been opined that “[common law marriage] puts in doubt the certainty of the rights of inheritance,” “opens the door to the imposition on estates of suppositious heirs,” and “allow[s] unprincipled claimants to convert illicit relationships into honest marriages, to their advantage, on spurious claims … against the estate of a decedent.”

In 1998, the Pennsylvania Supreme Court, in the case of Staudenmayer v. Staudenmayer, implied that it was time to abolish common law marriages in this Commonwealth. The Court noted that Pennsylvania courts have long viewed such claims with hostility, warned that the “continued viability [of common law marriages in Pennsylvania] is seriously in question,” but stopped short of abolishing them, concluding that “[w]hile we do not today abolish common law marriages in Pennsylvania, we affirm that claims for this type of marriage are disfavored.”

However, and unlike Staudenmayer, where the issue to abolish common law marriage was not raised on appeal, the issue was properly raised in PNC Bank Corp. In light of this distinction, the PNC Bank Corp. Court noted that “the parties have preserved and fully argued the issue, so it is squarely presented for our consideration, “and stated that “[m]any sound reasons exist to abandon a system that allows the determination of important rights to rest on evidence fraught with inconsistencies, ambiguities, and vagaries. The circumstances creating a need for the doctrine are not present in today’s society.”

The Court cited many reasons in support of its holding to abolish common law marriages in Pennsylvania. These reasons included the fact that “the marital status of parents no longer determines the inheritance rights of their children,” and “the right of a single parent to obtain child support is no longer dependent upon his or her marital status.”

The PNC Bank Corp Court prefaced its holding by stating that “[a]lthough our Supreme Court, while declining to reach the issue [in Staudenmayer], “has raised the overruling axe so high that its falling is just about as certain as the changing of the seasons,” concluded its holding by stating that “[a]ccordingly henceforth, this court will recognize as valid only those Pennsylvania marriages entered into pursuant to the Marriage Law procedures.”

West Chester Pa Common Law Marriage – The Conclusion

As its existence in Pennsylvania grows increasingly precarious, it does appear that the door to the church of common law marriage in Pennsylvania may be closing forever.  In light of this decision, when our clients say that they are married, do we still take their word for it?

West Chester Pa Probate Guide

The West Chester Pa Attorneys Guide is the core of this website. It consists of the best, most important articles, posts, and pages on this website. Their focus is to provide the best and most complete information on a particular topic, rather than to sell my services.

John B. Whalen, Jr., JD., LL.M., is an AV Peer Review Rated Preeminent 5.0 and Avvo Rated 10.0 Superb (obtaining over 95 client reviews and peer endorsements) premier and prestigious Attorney and Counselor at Law. He is located at 8 Longwood Drive, Wayne, PA. 19087. He serves all surrounding counties, on all 7 days, from 9:00 AM to 10:00 PM, and on evenings, weekends, and holidays. He provides free initial consults all seven days, provides home visits, and provides flat fee structures. He can be reached by email at [email protected], and by telephone at 1-484-417-6244. He has amassed over 60 prestigious and premier professional awards and over 5000 client reviews and endorsements. Mr. Whalen has achieved the AV Peer Review Rated Preeminent award from Martindale, AV Peer Judicial Preeminent award, the Avvo Rated Superb 10.00 award, the Avvo Rated Top Lawyer award, the Clients’ Choice Award, and the Top One Percent (1%) award. He is the recipient of the Legum Magister Post-Doctorate Degree (LL.M.) in Taxation (from the Villanova University School of Law), a recipient of the American Jurisprudence Award in Wills, Trusts, and Estates (from the Widener University School of Law), and a recipient of the ABA-BNA Law Award for Academic Excellence (from the Widener University School of Law).

July 2, 2020 / / 0 Comments

West Chester Pa HIPAA Powers of Attorney

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HIPAA is vast

Congress enacted The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) on August 21, 1996. The Health Insurance Portability and Accountability Act of 1996 (HIPAA) is enormous and complex.

Critical Concerns

One of its critical concerns was protecting the privacy of the average American citizen. Prior to HIPAA’s enactment, medical records had become increasingly accessible as a result of technological advances that contributed widespread information sharing. HIPAA targeted the potential for fraudulent or improper disclosure and transmission of medical records. In doing so HIPAA has created a challenge for lawyers in Pennsylvania who seek to protect the rights of clients who need to exercise Powers of Attorney for their loved ones within the HIPAA environment.

The Privacy Rules

One of HIPAA’s requirements was the establishment of the Privacy Rules.

Prior to the HIPAA Privacy Rules (which were enacted in their current form on August 14, 2002), there was a confusing mélange of federal and state laws to govern the transmission of, and access to, health information.

Under these pre-existing laws, an individual’s health information could be shared freely between doctors, hospitals, insurers, and third party payers, without either notice to, or authorization from, the individual.

Consequently, the HIPAA Privacy Rules set federal minimum standards for the disclosure of an individual’s private health information.  The rules attempt to strike a balance between the necessary disclosures of health care information and the privacy interests of those who seek medical care.

Given that the health care marketplace is diverse, the rules are designed to be flexible and comprehensive to cover the variety of uses and disclosures that need to be addressed.

Powers of Attorney

A Pa Power of Attorney is a document that convey legal authority (to the Pa Principal) to act in the name of another person (Pa Agent) for his or her health and welfare.

Historically, health care providers have accepted Powers of Attorney readily, without questioning their validity.

In the post-HIPAA world, however, one can expect a higher level of scrutiny. In fact, the HIPAA Privacy Rules can potentially create a conflict with respect to the traditional language of Powers of Attorney. Thus, to be effective, Powers of Attorney should be drafted to comply with the requirements of the Privacy Rules.

The Privacy Rules protect all individually identifiable health information (defined as Protected Health Information or PHI) of an individual held or transmitted by covered entities (defined as health care providers who transmit any health information in electronic form).  Although the Privacy Rules allow certain uses and disclosures of such information without the consent of the Individual or that Individual’s Personal Representative (defined as a person who has the present authority to make health care decisions for that Individual), the HIPAA Privacy Rules, with few exceptions, proscribe the disclosure of PHI unless the Individual or the Personal Representative authorizes it in writing.

The Granting of Authority

Pa Powers of Attorney are designed to allow an individual the ability to grant authority to another in order to allow the Pa Agent to act on behalf of the Principal.

They can be drafted to be effective now (current powers) or effective in the future occurrence of a specific event (springing powers).

Pennsylvania law (20 Pa.C.S. § 5602(h) and (i)) allows the Principal under the Power of Attorney to grant the Agent the power to authorize “my admission to a medical, nursing, residential or similar facility and to enter into agreements for my care and the power to authorize medical and surgical procedures.”

While Powers of Attorney can be drafted to provide for a wide variety of situations, this article is limited to the impact that the Privacy Rules have on General Durable Powers of Attorney that are presently effective.

If a Power of Attorney grants the Agent the present ability to make health care decisions on behalf of the Principal, the Agent qualifies as the Personal Representative under the HIPAA Privacy Rules.

However, if a Power of Attorney does not grant the Agent the present ability to make health care decisions on behalf of the Principal to the Agent, the Agent is not considered the Personal Representative under the HIPAA Privacy Rules, regardless of the scope of the health and medical authority otherwise granted to the Agent.

In order to be effective under HIPAA, the specific authority granted to the Personal Representative (Agent) under the state defined Power of Attorney rules thus must be consistent with the definition of Personal Representative under the federally defined HIPAA Privacy Rules.

Under the Privacy Rules, a Power of Attorney that is intended to allow the Personal Representative (Pa Agent) the power to access medical records, to authorize information disclosures, and to participate in medical decisions on behalf of the Principal, but not drafted to allow the Personal Representative (Agent) the presently effective power to make health care decisions on behalf of the Principal, may be technically deficient.

Consequently, the Pa Agent may lack the critical necessary powers to act on behalf of the Principal in time of need.

Although some health care professionals may rely upon a Power of Attorney that is not drafted to comply with the Privacy Rules, they do so at their own peril.

The Effective Clause

To address this issue of presently effective powers, I use the following clause in clients’ Durable General Powers of Attorney, as well as in Advance Directives for Health Care:

“to have and utilize the presently effective power and authority to act in accordance with and pursuant to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), its attendant Privacy Rules, 45 CFR Part 164, and/or other federal and state legislation, by having the presently effective power and authority to make any and all health care decisions on my behalf; to give informed consent for any and all health care decisions on my behalf; to be deemed to be my Personal Representative; to act in any and all matters as my Personal Representative; to obtain any and all of my Protected Health Information; to consent to the disclosure and use of any and all of my Protected Health Information; and to have the presently effective power and authority to effectuate any and all of the above.”

As stated previously, this article is limited to the impact that the HIPAA Privacy Rules have on General Durable Powers of Attorney that are presently effective.

In light of the fact that the determination of capacity is central to the effectiveness of a Power of Attorney (as well as to many other legal documents), the HIPAA Privacy Rules should not create problems for health care purposes if the Agent possesses the presently effective ability to make health care decisions on behalf of a Principal.  With a properly drafted Power of Attorney, if the Principal becomes incapacitated, the authority of the Agent is not interrupted.

Conversely, the authority of the Agent will be interrupted if the Power of Attorney is not presently effective and a determination of capacity is required to be made.  This situation exists, for example, when an Agent is to act under a Springing Power of Attorney or when a Successor Trustee is to act under a Trust Agreement.

As these scenarios are outside the realm of this article, I would suggest referring to the article, HIPAA-POA: The Effect on Healthcare Power of Attorney by Stephen H. Frishberg, Esquire. This article is contained in the PBI Publication No. 2004-3355, 11th Annual Estate Law Institute.

Stay ahead of the HIPAA Privacy Rules.

Knowledge of the precise meanings of Protected Health Information, Personal Representative, and other HIPAA terms, and how they impact our practice are fundamental to our role as counselors.

A Power of Attorney is a highly effective document when drafted correctly.  Only with the proper wording in light of HIPAA, the Privacy Rules, and the changing practice of today’s health care profession, will the Power of Attorney remain the powerful tool it is mean to be.

West Chester Pa Probate Guide

The West Chester Pa Attorneys Guide is the core of this website. It consists of the best, most important articles, posts, and pages on this website. Their focus is to provide the best and most complete information on a particular topic, rather than to sell my services.

John B. Whalen, Jr., JD., LL.M., is an AV Peer Review Rated Preeminent 5.0 and Avvo Rated 10.0 Superb (obtaining over 95 client reviews and peer endorsements) premier and prestigious Attorney and Counselor at Law.

He is featured on Avvo, Justia, Lawyers, LinkedIn, Martindale, Nolo, Quora, and Thumbtack. He is located at 696 Pont Reading Road, Ardmore, Pa, 19003. He serves all surrounding counties, on all 7 days, from 9:00 AM to 10:00 PM, and on evenings, weekends, and holidays. He provides free initial consults all seven days, provides home visits, and provides flat fee structures. He can be reached by email at [email protected], and by telephone at 1-610-999-2157.

Mr. Whalen has achieved the AV Peer Review Rated Preeminent award from Martindale, AV Peer Judicial Preeminent award, the Avvo Rated Superb 10.00 award, the Avvo Rated Top Lawyer award, the Clients’ Choice Award, and the Top One Percent (1%) award. He is the recipient of the Legum Magister Post-Doctorate Degree (LL.M.) in Taxation (from the Villanova University School of Law), a recipient of the American Jurisprudence Award in Wills, Trusts, and Estates (from the Widener University School of Law), and a recipient of the ABA-BNA Law Award for Academic Excellence (from the Widener University School of Law).

June 30, 2020 / / 0 Comments

West Chester Pa Trusts Lawyers

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West Chester Pa Trusts Lawyers

A living trust allows you to place assets under the care of a trustee who then distributes them to your beneficiaries in accordance with your wishes. A living trust, in contrast with a testamentary trust, comes into existence while you are still alive. Pennsylvania’s trust law is based on the Pennsylvania Uniform Trust Act.

Pa Trust Parties

Three parties are required to create a living trust: The settlor, or trustor, is the party who creates the trust, sets its terms and deposits assets into it. The trustee is the person that administers the trust in accordance with the terms you, as the settlor, have set. You may appoint yourself as the trustee. Beneficiaries are the persons or organizations you appoint to receive the trust assets. A trust may include other parties as well; for example, you may name either a successor trustee or a trust protector whose sole function is to hire and fire trustees.

Pa Trust Creation

A living trust is created when you draft and sign a Declaration of Trust. The Declaration of Trust identifies the parties to the trust, specifies whether it is revocable or irrevocable, and tells the trustee how to distribute trust assets. The Declaration of Trust may give the trustee specific instructions on how to distribute the trust’s assets or allow the trustee broad discretionary authority. For example, the trustee may be permitted to invest the trust assets and distribute only capital gains to the beneficiaries. If the trust is revocable, as most are, you may modify or terminate it at any time. Pennsylvania, unlike many other states, allows you to modify or terminate a living trust, even an irrevocable one, if you can secure the unanimous consent of the beneficiaries.

Pa Probate

The assets of a Pa Living Trust are not subject to the Pennsylvania Probate process. The Pa Trustee may immediately distribute trust assets to beneficiaries to the extent expressed in the trust document grants him the authority to do so. Assets may be distributed without seeking approval from the estate executor or probate court.

West Chester Pa Practice Areas

John provides a full range of services for Pa Wills: drafting, review, amendment, revocation, execution and probate. He provides reliable guidance for testators and executors.

His experience in the probate court, resolving issues related to the validity of wills, enables him to provide practical advice for testators from all walks of life. Similarly, his work in the formation of wills gives us keen insight into how executors should interpret various aspects of a will that may initially seem unclear.

Whether you are a testator formulating an estate plan or an executor implementing a decedent’s wishes, John B. Whalen, Jr. Esq. can simplify many complex aspects of the tasks before you.

He offers pertinent and personal legal advice to obtain the results you need in a timely manner with the least stress possible. Once executed, your will remains your final statement of your intentions until you amend or revoke it.

He recommends reviewing your will every three to five years and updating it to reflect your current wishes.

West Chester Pa Beneficiary Lawyers

There are many factors that can affect the distribution of estate assets. In some cases, there may be a Pa Will that identifies you as a beneficiary; in other cases, there may not be a will at all. In still other cases, there may be a dispute involving the administration of the estate. For example, a beneficiary may disagree with how the executor or personal representative is distributing assets.

West Chester Pa Estate Administration Lawyers

Pa Estate Administration is the process of settling a decedent’s affairs. When a loved one passes away, it can be an emotional time. In addition to grieving their passing, those that survive them must tie up all the legal and financial loose ends related to their life and estate. This includes addressing their Pa Last Will and following its instructions.

West Chester Pa Estate Lawyers

Pa Estate law comprises many areas of law. However, all of these areas of law focus on taking care of one’s person and property. Estate law is all of the laws that impact how a person makes decisions and issues directives about their personal affairs. A Pa Estate is anything that makes up a person’s net worth. Very simply, an estate is what a person has in their own name alone.

West Chester Pa Estate Litigation Lawyers

Most estates, especially when there is a proper will in place, are easily settled. Yet there are times when other factors complicate the issue, creating a situation that requires more careful consideration. For example, a family business, an estate that is in bankruptcy or an estate that holds significant amounts of real estate may become complicated quite quickly. This is where estate litigation comes into play.

West Chester Pa Estate Planning Lawyers

An attorney who specializes in Pa Estate Planning can help you create a complete plan (including Pa Last Wills, Pa Powers of Attorney, and Pa Living Wills, etc.) to protect your spouse and children if you become unable to manage your financial affairs. Pa Estate Planning allows you to make decisions now so your wishes can be carried out if you die or become incapacitated.

West Chester Pa Powers of Attorney Lawyers

When you execute a legal document called a power of attorney, you are authorizing another individual to make certain decisions on your behalf. The person who signs the document is called the principal and the person who is authorized to make decisions is known as the agent or attorney-in-fact.

West Chester Pa Living Wills Lawyers

Living wills are also referred to as an advance directive or a health care directive. It is a legal document that communicates your desire in the treatment of serious medical problems in the event that you are unable to speak for yourself. They do not go into effect unless you are incapacitated and unable to express yourself. Having a living will can relieve your close relatives from the burden of having to make the decision about whether to remove you from life support.

West Chester Pa Trusts Lawyers

Trusts are legal documents that allow you to control how your assets will be allocated or managed. You are considered the grantor and the person that manages and distributes assets in the trust is known as the trustee. Individuals who receive money or other assets are the beneficiaries.

Property placed in a trust, unlike wills, is not subject to probate. You can also create a revocable trust which can be canceled or revoked at any time while you are alive. Trusts can be set up for a child’s education or to reduce estate taxes.

West Chester Pa Last Wills Lawyers

A Will is an important document to execute in order to avoid disputes about how your assets will be divided when you die. The executor who administers the distribution of assets from your estate will allocate your possessions as you specified. You should periodically review your Will to make sure it is still relevant and accurate. Life changing events, such as the birth of a child or a marriage, may require amendments to the original document.

West Chester Pa Last Wills Contests Lawyers

A loved one’s legacy can ease the pain of loss by reminding heirs of a departed family member’s enduring love. But when questions arise about the validity of a will or the management of estate assets, uncertainty can arouse animosity and prevent closure.

West Chester Pa Estate Litigation Lawyers

Most estates, especially when there is a proper will in place, are easily settled. Yet there are times when other factors complicate the issue, creating a situation that requires more careful consideration. For example, a family business, an estate that is in bankruptcy or an estate that holds significant amounts of real estate may become complicated quite quickly. This is where estate litigation comes into play.

West Chester Pa Estate Taxation Lawyers

When an individual acts in a fiduciary capacity such as a Pa Executor of a Pa Last Will or a Pa Trustee of the financial assets of another person or entity, they have the responsibility of keeping accurate financial records. Those records should show how money was spent, invested or distributed while under the fiduciary’s care and control. Proper accounting can bring to light the mismanagement or bad investment of funds should an issue arise with an interested party.

West Chester Pa Guardianships Lawyers

The Pa Guardianship process can be filled with emotions. Realizing that a loved one is no longer capable of caring for his or her self can be difficult to accept. For the past twenty-five (25) years, Attorney Whalen has built a reputation for providing compassionate legal care for his clients, putting their needs and interests first while navigating emotionally trying circumstances.

West Chester Pa Probate Law Lawyers

The Pa Probate process, itself, is a very simple process. However, it is merely the beginning of the Pa Estate Administration (also known as the Pa Estate Settlement) process, which involves settling a decedent’s affairs, and can (and does) involve many, many other steps, depending on many, many other things.

West Chester Pa Probate Attorneys Guide

The West Chester Pa Probate Attorneys Guide is the core of this website. It consists of the best, most important articles, posts, and pages on this website. Their focus is to provide the best and most complete information on a particular topic, rather than to sell my services.

John B. Whalen, Jr., JD., LL.M., is an AV Peer Review Rated Preeminent 5.0 and Avvo Rated 10.0 Superb (obtaining over 95 client reviews and peer endorsements) premier and prestigious Attorney and Counselor at Law. He is located at 8 Longwood Drive, Wayne, PA. 19087. He serves all surrounding counties, on all 7 days, from 9:00 AM to 10:00 PM, and on evenings, weekends, and holidays. He provides free initial consults all seven days, provides home visits, and provides flat fee structures. He can be reached by email at [email protected], and by telephone at 1-484-417-6244. He has amassed over 60 prestigious and premier professional awards and over 5000 client reviews and endorsements. Mr. Whalen has achieved the AV Peer Review Rated Preeminent award from Martindale, AV Peer Judicial Preeminent award, the Avvo Rated Superb 10.00 award, the Avvo Rated Top Lawyer award, the Clients’ Choice Award, and the Top One Percent (1%) award. Mr. Whalen is the recipient of the Legum Magister Post-Doctorate Degree (LL.M.) in Taxation (from the Villanova University School of Law), a recipient of the American Jurisprudence Award in Wills, Trusts, and Estates (from the Widener University School of Law), and a recipient of the ABA-BNA Law Award for Academic Excellence (from the Widener University School of Law).

March 14, 2020 /

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