WILL YOUR WILL BE CLEAR

A Will informs other people of your intentions regarding distribution of your assets upon death. A poorly drafted Will may not accomplish your goals because others may not understand your intent. This may lead other, especially disgruntled heirs (usually family members) to challenge your Will. A court may need to decide the case. Remember, in a court proceeding, other persons, not you, would be testifying about your intentions and their self-interest may not be the same as your interest.

Your intention is determined by the language used in your Will, your scheme of distribution and the surrounding fact and circumstances. A court cannot substitute its thinking to decide what you meant to say.

Also, your intention is determined as of the date you signed the Will. This is a reason why you need to periodically review your Will and make necessary changes when they occur. IF your intentions have changed since you signed the Will, but you do not change your Will, a court would look at your intentions as of the date you signed it and enforce it as written.

A properly drafted Will preserved the decedent’s intent in a recent February 2019 appeals court case. In re Estate of Tscherneff, 2019 PA Super 25, 886 MDA 2018.

Mr. Tscherneff signed his Will in May 1999. As a result of his wife’s death, his Will left his estate equally to his4 children. He also appointed his one son, Dimiter, as his agent under a power of attorney. During Mr. Tscherneff’s life, Dimiter used the power of attorney and transferred many assets to himself and his two sisters in recognition of the care they provided to their father. The case is not clear on this point but Peter, his other son, apparently did not provide care to his father and he did not receive any distribution from Dimiter.

Mr. Tscherneff died in 2016. His estate only had one remaining asset: a TD Ameritrade account valued at $143,238.01. Peter filed a request to remove Dimiter as executor claiming he mismanaged estate funds and inappropriately gave money to himself and his sisters during Mr. Tscherneff’s life. Peter argued his 25% share would have been worth more if not for the distributions Dimiter made during their father’s life. Peter’s share was 25% of $143,238.01 instead of 25% of a larger number, which is why Peter challenged Dimiter’s actions.

The Superior Court held Mr. Tscherneff’s Will was clear and his intent in May 1999 was to divide his estate equally among the four children. Mr. Tscherneff did not change his Will and he knew Dimiter made distributions during his life to himself and his sisters. Consequently, the Court held Dimiter’s distributions were not improper and they were not advances under Mr. Tscherneff’s Will. Each child would receive 25% of the TD Ameritrade account.

Peter lost his challenge, but more importantly, Mr. Tscherneff’s wishes were fulfilled. This case emphasizes the importance of writing Wills which can be understood by others and are clear in their meaning. If you have a Will or are thinking about creating one, you should ensure your goals are in a properly written Will. It may enable a court to uphold your Will and your desires.

Hoffmeyer & Semmelman LLC is a law office in York PA. Contact us today to schedule an appointment to review your legal documents.

Written By Robert L. Buzzendore, Esquire

As Reviewed By William F. Hoffmeyer, Esquire

© Copyright by Hoffmeyer & Semmelman LLC, March 2019

ESTATE ADMINISTRATION: DOCUMENTATION, DOCUMENTATION, DOCUMENTATION!

ESTATE ADMINISTRATION: What You Need to Know About Documentation

Estate Administration is an emotional roller coaster and, quite honestly, it entails a lot of time, energy, patience and flexibility.  It doesn’t give you very much time to grieve either; however, that is why we are here to help assist you with the process. Deadlines will quickly approach.  That is why it is very important you schedule a consultation as soon as possible after your loved one passes away. Things will be thoroughly discussed during that consultation; however, we recognize that your emotions are at an all-time high, your head may be spinning, and you may feel sick to your stomach. Don’t worry, we are here to help you. All of this information will be spelled out in a letter for you, which you can continuously refer through-out the entire process. This is important documentation you should keep in a safe but easily accessible place.

DOCUMENTATION.  Do you really need that?  Yes, it is required by the Department of Revenue when the final Inheritance Tax Return has to be submitted for their review.  You have to attach documentation along with the final Inheritance Tax Return. Think of it as the same process as when you pay your bills.  You either receive an invoice via mail or via online and you either write a check or schedule that amount online to be withdrawn from your bank account.  Either way, there is some sort of paper trail for your own finances. The same applies when you are handling the Estate Administration. Easy, right? It is also the same as your personal Income Taxes.  It is recommended you keep them for at least seven (7) years. Well, the same pertains to Estate Administration paperwork/documentation. As long as the Estate is open, you need to keep all documentation in a safe place.  Keep records of ALL receipts, invoices, bills, correspondence, etc. You never know when the Department of Revenue will inquire for more information and you certainly don’t want to give them a reason for such an inquiry.

Since every penny going in and out of the Estate account must be accounted for, it is highly suggested the Personal Representative, Executor or Administrator of the Estate maintain scrupulous record keeping of all monies within that Estate Account.  This record keeping includes copies of invoices, checks, check registers, and monthly copies of the Estate bank statements. These documents will be requested by the Attorney handling the Estate for the preparation of the Inheritance Tax Return. Without documentation (proof), you are risking the final Inheritance Tax Return being rejected or additional information required before the Return will be accepted.

With that being said, less documentation translates to a longer and more difficult Estate Administration process. This also means a longer wait time for the heirs to receive their final distributions to which they are entitled, along with possible accruing interest from the Department of Revenue if the payment of Inheritance Tax is not timely.

For those in need of an Attorney in York Pa for Estate Administration, we are sorry for your loss.  We invite you to call us at 717-846-8846 or 717-235-6133 for a consultation so that we can compassionately and professionally assist you in the process.

Written By:  Nicole Tapias, Support Professional  

As Reviewed By:  William F. Hoffmeyer, Esquire

© Copyright by Hoffmeyer & Semmelman LLC,  February 2019

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