Common Misconceptions about Wills and Probate

Estate planning can be a delicate subject to broach. Most people do not want to think about or discuss what will happen after they are gone. Clearing up some common misconceptions about wills and probate is a good place to start on your path to knowledge and empowerment when it comes to estate planning. Having an attorney explain the probate process and how wills and trusts work can give you and your family peace of mind and let them know what to expect.

If You Die Without a Will, the State Gets Your Assets

This is simply not true in most cases. Even if you or a family member passes without a will, assets are distributed according to the intestate succession laws of your state. This means that your assets go to your closest relatives, usually your spouse or children. The administrator of your estate, who is appointed by the Probate court, will go down the line and search for relatives, including grandchildren cousins, aunts, uncles, grandparents, etc. If they cannot find any beneficiaries who are related to you, then your assets may go to the state. All of this can be avoided by taking the time to create an estate plan with knowledgeable wills and trusts lawyers. This ensures that your estate is distributed and arrangements are made according to your wishes.

Probate Is a Long, Drawn-Out Process

It can be, especially if a person with a complex estate dies without a will in place. However, most estates can typically be probated from start to finish in a few months, and the vast majority are settled within one year. The contesting of a will can also lengthen the probate process, which is another reason why proper estate planning is so important. An experienced attorney can help you create estate planning documents that make your intentions crystal clear, which can help your family avoid painful and often costly conflict own the road. An attorney can also help you create trusts that may allow the majority of your assets to avoid the probate process.

You Can Omit Your Spouse from Your Will

State laws vary, but most states do not allow you to completely exclude a spouse from inheriting some of your assets. Even if you do leave your spouse out of your will, they have the right to take or “elect” against it and may receive at least one-third of your assets. The reasons for leaving a spouse out of a will are often practical. For example, if it is a second marriage and your spouse is financially secure in their own right, you may wish to leave all of your assets to your children and grandchildren. If this is the case, a divorce attorney can create a waiver or pre-or post-nuptial agreement for you and your spouse to sign to ensure they cannot elect against your will after your death.

Ready to learn more about how estate planning can protect your family’s financial future? Our knowledgeable attorneys at Carosella & Associates can help.

This blog was originally posted at https://carosella.com/common-misconceptions-about-wills-and-probate/

Filing a Judgment Lien to Collect a Debt: Is it worth it?

When a plaintiff wins a judgment in civil cases the court typically orders payment from the defendant, but how can you collect a debt if the debtor refuses to pay up? If someone owes you money and you have already filed a successful lawsuit, one way to try and get payment is to file a judgment lien on their property, which allows you to collect a certain amount of money from the sale of the debtor’s property. There are strict procedures for filing a judgment lien and a number of factors can affect whether you will be able to collect on it at all. Seeking the counsel of experienced business attorneys who can advise you on the most effective course of action to collect a debt can help you save time, money and a lot of headaches.

How Does a Judgment Lien Work?

In Pennsylvania, a judgment lien can only be attached to real estate, which may include land, a home, condo or other real property. It is recorded with the clerk of the court of common pleas in the county where the property is located. Once it is recorded, it will appear on any title search of the property.  A judgment lien can remain attached to the debtor’s property for five years. Generally, the lien must be removed or released before property can be transferred to another person or entity. In rare cases a lien may be transferred with ownership if the buyer is willing to accept it.

Is a Judgment Lien Worth it?

It depends. There are a few factors that can affect a creditor’s ability to collect on a judgment lien. If the property is a debtor’s primary residence, they may be able to claim a homestead exemption, which limits the amount of money a creditor can collect (if any). If a debtor has other liens on their property or is facing foreclosure, that can make it even more difficult to collect. In addition, a bankruptcy lawyer may advise a debtor who is financially underwater to file Chapter 7 bankruptcy, which may wipe out the lien altogether and make it impossible to collect at all.  Each situation is different and depending on the amount of the debt, the time and money you spend on trying to collect on a judgment lien may not be worth the cost.

Other Types of Liens

If you work in the construction business as a contractor or subcontractor, filing a mechanic’s lien is a more effective option to collect payment for work that has been completed. A mechanics lien that is properly filed on a PA property will significantly increase the chances of a debt being paid in a timely manner, and you do not have to obtain a judgment from the court in order to file a mechanic’s lien. Experienced real property lawyers can assess your specific circumstance and advise you on whether a mechanic’s lien would work or if you would be better off filing a lawsuit against the debtor.

Do you need assistance with collecting a debt? The experienced business lawyers at our West Chester law firm can help.

This blog was originally posted at https://carosella.com/filing-a-judgment-lien-to-collect-a-debt-is-it-worth-it/

Dealing with Family Conflict: When a Will is Contested in Probate

The period following the death of a loved one is a difficult and emotional time. It can bring out the worst in even the closest families, especially when large sums of money are involved or someone feels slighted. An experienced probate attorney can help your family navigate the settlement of your loved one’s estate and provide a rational voice, which can help resolve conflict and get it settled in a timely manner.

Ways to Contest a Will

When a will is first submitted for probate in Pennsylvania, it goes to the Register of Wills in the county where the deceased person resided at the time of their death. A person who is contesting the will must submit a caveat, or written objection that includes legal reasons for contesting the will to the Register of Wills. If the Register of Wills has already recognized the validity of the will and has opened the estate, a contester can appeal this decision within a year of the date the will was filed with the Register of Wills. This can keep an estate tied up in probate for years, so it is important to seek the counsel of an attorney as soon as anyone contests a will.

There are several assertions that are commonly made by those challenging a will, including:

• Undue influence
• Incapacity
• Fraud
• Forgery
• Procedural errors

What an Executor can do to Prevent Conflict

These common issues can often be avoided if an executor communicates with the family openly and often. These tips can help them understand the motivations behind the way the estate is set up and how the probate and estate settlement process works.

Have a family meeting. Let family members and other beneficiaries know that there are some decisions that will require collaboration, like dividing items with sentimental value such as family photos and other keepsakes. Listen to their input and try to look at things from their perspective, but make it clear that there are also decisions you will have to make on your own as an executor.

Bring in an objective third party. If you know from the beginning that family dynamics could cause problems in probate, consider bringing in a third party such as an estate law attorney to mediate, provide information about the process and help resolve issues with patience and detachment before any formal legal objections are made.

Proper Estate Planning Can Help Prevent Conflict

Consult your family wills and trusts attorney about including a no contest clause in your will. If you are intentionally omitting one or more heirs make sure it is clearly documented. Adding an informal memo along with your will that explains why you have set up your estate in a particular way can also help make things crystal clear. Once your estate plan is in place, having a family meeting to discuss these issues will also give your heirs an understanding of your intentions well before you’re gone.

Whether you are looking to create a solid estate plan or need assistance with a will that is being contested, our experienced attorneys At Carosella & Associates can help you resolve any legal issues you may encounter.

This blog was originally posted at https://carosella.com/dealing-with-family-conflict-when-a-will-is-contested-in-probate/