By Rick Dandes
SUNBURY -- In an economic crisis in which personal finances matter more than ever, the smart money is on drawing up a will rather than creating a living trust, said a Lewisburg attorney who handles probate issues.
"What most people don't realize," Graham C. Showalter said, "is that there is nothing you can state in a trust that a lawyer can't also provide in a will, and for much less money."
A typical will in Pennsylvania costs a few hundred dollars. Even with hiring counsel to establish the authenticity of a will, it adds up to less than the $1,500 average needed to create a living trust.
What's most important is that you do one or the other.
Which is what most Americans haven't done, according to a June survey published on the findlaw.com Web site.
Nearly 60 percent of Americans don't have a will, FindLaw.com reported. Fifty-eight percent of American adults have not written a will, giving them little control or input into issues such as what will happen to their assets and any minor children after they die.
"Have a plan," Showalter said. "Both can save you money in the long run, plus keep you in control of the estate."
Without a will or trust, the state takes over and makes decisions on your house, your possessions and your investments.
Two years ago, Cindy Spinello, of Lewisburg, learned first hand that having an estate plan alleviates stress, as well as saving money after the death of a loved one.
"That's important in these economic times," she said. "In my mother's case, she had a living trust drawn up before she died. It gave me peace of mind at a very difficult time in my life, when it was often hard to think straight. Without a trust, a will, or some kind of legal document, I might not have been able to carry out her last wishes in a timely manner. And without a doubt, our legal fees would have added up."
Legal fees vary from lawyer to lawyer. In high-profile cases, such as ones involving estates worth more than $1 million, fees can be as high as 5 percent of the estate's value. Spinello would not say what she was charged, but she added that she paid a "flat fee" for creating the trust document, plus additional attorney fees while her mother's instructions were being carried out.
As it was, it took a year to complete the necessary paperwork.
"I was surprised how long it took," Spinello said. "There were other relatives involved. Paperwork and court forms to comply with. Tax forms to fill out. I don't know how long this would have taken if my mother, as sick as she was in the last few years of her life, hadn't planned for this well ahead of time."
Spinello's mother was wise enough to have a living trust.
Don Snyder, of Mazeppa, didn't quite know what he was in for when he agreed to be a co-executor of a will drawn by longtime friends in Lewisburg.
The estate was worth more than $1.5 million and it took more than a year to move through the courts before all the paperwork in the will could be duly processed.
The couple, whom Snyder declined to identify, had no children. The wife died before the husband. After he died, it was up to Snyder to carry out his wishes.
Showalter handled the probate.
"I admit I didn't fully understand the complexities of the will and going through probate," Snyder said.
In most cases, if you have a will and a designated executor, he might face probate, the often tedious process of proving the validity of a deceased person's will in court.
Only when a court has determined that the will is valid will it be admitted to probate and the person designated as executor is given the authority to deal with the affairs of the estate.
"I do know that the will designated beneficiaries and there was an incredible number of details that had to be adhered to," Snyder said. "My part in all of this was minimal. Showalter did all the work. I just had to sign papers. I guess going through probate worked, but it sure took longer than I expected. I feel good that I was able to carry out what was in the will."
That's a key benefit to having a will or a trust, said Matthew J. Parker, an attorney with the elder law and estate planning firm of Marshall, Parker & Associates, based in Williamsport. Parker's firm has gone to probate "thousands of times" in its history.
"Wills are a blueprint," Parker said. "They also tend to cut down on the disputes between family members. If you want your child who has been living with you for most of your lifetime to have the right to live in your house for the rest of that child's lifetime, you need to put that in a will.
"Otherwise, without a will, it is very likely that the house will be put up for sale and the proceeds divided equally amongst your children and that child would then have to leave the house.
"Of all the estates that lawyers take on, very few of them end in litigation," Parker said. "Probate litigation is infrequent. It is rare that you'll see a contest involving a will, although they do go occur. We have disputes amongst family members that are behind the scenes about the distribution of personal items. Disputes like, who is going to buy the house or not buy the house. These things are usually worked out through negotiation."
Without estate planning, the state of Pennsylvania will take over, distributing assets according to a pre-set formula, beginning with a spouse and children.
If there is neither a spouse nor children, grandchildren or parents will get the property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins and spousal relatives.
Once the court exhausts this list to find that there are no living relatives by blood or marriage, the state wins.
It will take all the assets, including property, sell them and keep the funds.
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