Legal Questions

While it is not necessary to get a lawyer, it is strongly recommended particularly in cases involving wills, large estates and/or large families. The time following a death of a loved one is extremely emotional, it is a good idea to let a lawyer help draft a legally binding document that clearly defines the wishes of the deceased and prevent unnecessary stress or conflict.

Before getting in touch with a lawyer there are several important documents that you need to gather. Those include:

• Wills
• Deeds
• Bank Statements
• Insurance Policies
• Vehicle and Boat titles
• Tax Documents

Disclaimer: The following materials are intended to be informational and not for the purpose of providing legal counsel. Please consult your attorney for advice and guidance regarding legal matters.

Bank Accounts

What is to be done with bank accounts after a death varies regionally. In some regions, bank accounts are automatically frozen after a death. To avoid any complications, the bank should be notified immediately and you should find out the procedures for releasing these funds, and how to set up a new account for funds received after the death. It’s recommended that a joint account stay open for at least six months to allow you to deposit any checks that are made out to the deceased. To take a name off a joint bank account, banks require a Certified Copy of a Death Certificate. If the deceased had a safety deposit box in a bank, the contents can be sealed after death and a Certified Copy of a Death Certificate will be required to gain access to the contents.

Death Certificates

Certified copies of a death certificate are a legal document verified and certified by a state registrar. This documentation allows the state to keep accurate and permanent death records for each state. Certified copies can be obtained through your funeral home via the state registrar. It is a good idea to obtain multiple copies of the death certificate as each of the specific controlling agencies will require a certified copy of the death certificate- a simple photocopy of will not be acceptable. Currently the Commonwealth of Pennsylvania charges a fee of $20.00 a copy if filed within 90 days of the date of death and $20.00 each after 90 days. The certified certificates must be issued by the registrar of the state where the death occurred, whether the decedent resided there or not. Death certificate fees do vary from state to state. To order more Death Certificates, click on the “Order Death Certificates” link below the Questions link on our home page. 

Death Certificates for Veterans

United States Veteran's and their spouses are entitled to free certified death certificate copies through the Department of Veterans Affairs, in honor of their service. As long as you are able to provide proper documentation (DD-214) and they parted way with the military in good standing, these copies are free. However, they do take more time to receive (up to 90 days or more) compared to state issued copies which are usually available within one week from the date of death. We typically recommend getting a small number of paid copies to help keep things moving along until the free veteran copies are completed and received.

Wills

Everyone knows they should have a will, but the vast majority – about 70% of us – do not. Writing a Will is easy and inexpensive and once you are done you can rest easy knowing your hard earned money and property will be distributed according to your wishes. As well, if you have children, you can leave instructions on who will be left in charge of them if you pass, leaving that decision out of the courts hands. Making a Will is easy, you just need to be at least 18 years of age and must be of sound mind when the Will is written. 

To make a Will legal it must:

• Expressly state that it is your Will
• Be computer generated or typewritten
• Be signed and dated
• Be signed by 2-3 witnesses, these witnesses must be people who don’t stand to inherit anything in the will

Although you do not need a lawyer to complete a Will, it is recommended to do one with a lawyer, as it should avoid any legal headaches after your passing. Once your will is complete, it’s recommended that it is kept somewhere safe and secure outside of your home. If you do your Will through a lawyer, most law firms will store it for you free of charge. Many people keep their Wills in a safety deposit box at a bank, but this is not recommended as the contents could be sealed at the time of death. Since the Will is needed to establish the executor, and only the executor can access a safety deposit box, the Will would be unattainable and therefore ineffective. The executor of your Will should be aware of its location. In order for the executor to direct the method of disposition -the Will must be executed.

Probate

Probate is the legal process that transfers the legal title of property from the estate of the deceased to their beneficiaries. During the probate process, the executor of the Will goes before the courts and identifies and catalogs all the property owned, appraises the property, pays all debts and taxes, proves that the Will is valid and legal, and distributes the property according to the instructions of the Will.

Executor

An executor is the personal representative of your estate. They are the person in charge of taking control of your assets, paying off any debts, and distributing assets to your beneficiaries per the terms and conditions of your Will. You can choose anyone to be the executor of your Will, but it is a good idea to choose someone who is both competent and trustworthy. The person you choose to be executor should be clearly outlined in your Will. Someone you appoint to be the executor of your Will has the right to refuse, so you should have a conversation with the person you choose or have a backup executor in place just in case.

What is Power of Attorney?

It is a common belief that a Power Of Attorney (POA) agent can act on the behalf of the principle/loved one that has passed away. The Power of Attorney allows the agent to act on the behalf of the principle while they are alive, once the principle has passed away, the Power Of Attorney expires.

There are two ways in the state of Pennsylvania to designate an agent to direct the method of disposition: One is to write your disposition directive into your Will. The other is to elect an agent with a "Designation of Agent for Body Disposition" document. In order for the Will to be used to direct disposition, the Will must be executed. The Designation of Agent for Body Disposition becomes a legal document once it is completed, signed, notarized, and witnessed by two individuals. See below for descriptions of the different types of Power of Attorney, POA Expiration, and the Designation of Agent for Body Disposition document.

General Power of Attorney

A general power of attorney gives broad powers to a person (agent) to act on your behalf. These powers can include handling personal/ business finances and transactions, buying life insurance, settling claims, operating business, making gifts, and employing professional help on your behalf. General power of attorney is a valuable tool if you will be out of the country and need someone to handle certain matters, or when you are physically or mentally incapable of managing your affairs.

 Special Power of Attorney

You can specify exactly what powers an agent has by signing a special power of attorney. This is often used when one cannot handle certain affairs due to other commitments or health reasons. Selling property (personal and real), managing real estate, collecting debts, and handling business transactions are some of the common reasons a special power of attorney document is created.

Health Care Power of Attorney

A health care power of attorney grants the agent authority to make medical decisions for you if you are unconscious, mentally incompetent, or otherwise unable to make decisions on your own. While not the same thing as a living will, many states allow you to include your preference about being kept on life support.

Durable Power of Attorney

A Durable Power of Attorney keeps the POA in effect even if you should become mentally incompetent due to illness or accident. This is simply a general, special, or health care POA that has a durability provision to keep the current Power of Attorney in effect. Specify that the Power of Attorney cannot go into effect until a licensed, practicing doctor certifies you as mentally incompetent. You may want to name a specific doctor who you trust to determine your competency, or require that two licensed physicians agree on your mental state.

Power of Attorney Expiration

By the laws of all states, a power of attorney expires on the death of the principal. More specifically, when an agent learns of the death of a POA principle, he may no longer act as an agent in the principal's place.

Designation of Agent for Body Disposition

There are laws permitting you to name a particular person to control your funeral and the method of disposition of your body. While this may seem unnecessary to most people, there are a number of situations where it is a wise decision to create an Agent for Body Disposition. 

If you are:

• separated but not divorced
• not married to your significant other or in a same sex relationship where state laws do not allow legal recognition of the union.
• estranged from next-of-kin
• aware that there is a possibility that your next of kin won’t agree with your wishes or with each other

Pennsylvania Statute, (Title 20, Chapter 3, Section 305 the Right to dispose of a decedent’s remains), gives you the right to make a Designation of Agent for Body Disposition or a "statement of contrary intent." This names a person to control the method of disposition that will override the next-of-kin's usual authority.

Without this documentation, the right to control the method of disposition shall be in the following hierarchy: 1) spouse, 2) children, 3) parents, 4) siblings, 5) nieces and nephews, 6) grandparents, 7) uncles, aunts and their children, and grandchildren. 

As long as the Designation is properly completed, signed, witnessed and notarized, it is a legally binding document and will override typical Next of Kin hierarchy and authority.