20 Pennsylvania Probate & Estate Administration Q&As
Below are 20 of the most common questions on probate and estate administration that we hear from clients on a day-to-day basis. The following questions and answers are for general information only and are not intended to be relied upon as legal advice. After reading these probate and estate administration Q&As, please get in touch with us to discuss your specific circumstances and learn more about our probate and estate administration practice.
What is Probate and Estate Administration?
Probate in Pennsylvania is the legal process that administers the distribution of a deceased person’s assets. When a person dies in Pennsylvania owning any assets in their name, an estate will need to be probated, whether or not there is a will. The intention of probate is to ensure the proper collection of estate assets, settlement of any debts, payment of any taxes due, and that any remaining property is distributed to the decedent’s beneficiaries or heirs. If the decedent had a will, the assets will be distributed according to the terms of the will. If the decedent did not have a will, the estate assets will be distributed according to Pennsylvania intestacy laws. The process begins with having an Executor or Administrator appointed to administer the estate by the Register of Wills in the county where the decedent resided.
What are the state laws and rules that govern probate and estate matters?
The laws governing probate and estate matters are state specific. Estate proceedings in Pennsylvania are governed by the following laws and rules:
- Probate, Estates and Fiduciaries Code (PEF Code) (20 Pa.C.S. §§ 101 to 8815)
- Inheritance and Estate Tax Act (72 P.S. §§ 9101 to 9196)
- Pennsylvania Supreme Court Orphans’ Court Rules (Pa.O.C. Rules 1.1 to 16.12)
In addition to the above laws and rules, each county may adopt its own local rules regulating the practice and procedure within that county (see, for example, Lackawanna County Orphans’ Court Rules). Each probate matter presents its own unique issues and potential pitfalls; thus, the Executor or Administrator must follow these laws and rules to avoid personal liability.
What is the difference between an Executor and an Administrator?
In a practical sense, there is no significant difference between an Executor and an Administrator. Executors and Administrators serve the same role in the Pennsylvania probate and estate administration process. They manage a decedent’s assets and ensure the proper distribution of those assets. The difference between the two is merely how they are appointed. An Executor is a person named in someone’s will to carry out the terms of that will. If the decedent did not leave a will, the Register of Wills is tasked with selecting someone to serve as Administrator. Executors and Administrators are both commonly referred to as the “personal representative” of the estate.
What are the responsibilities of a Pennsylvania Executor or Administrator?
First and foremost, Executors or Administrators of estates in Pennsylvania are fiduciaries. This means that Executors and Administrators have a legal obligation to make sure that the estate is administered properly. If the estate is not handled properly, the Executor or Administrator may be held personally liable for any issues that arise during their tenure. While their specific responsibilities may vary from case to case, generally, Executors and Administrators are responsible for collecting estate assets, settling any debts, paying any taxes due, and distributing all remaining proceeds or property, if any, to the decedent’s beneficiaries or heirs. That seems simple enough, right?
What if I am an Executor but do not live in Pennsylvania?
Each state has its own rules regarding who can be appointed the Executor of an estate. The good news is that Pennsylvania only has two basic requirements when it comes to who is eligible to serve as the Executor of an estate: 1) an Executor must be at least 18 years old and 2) an Executor must be of sound mind (i.e., not adjudicated incapacitated by a court). Yes, Pennsylvania does allow out-of-state residents to serve as Executors. Most Register of Wills offices now have virtual procedures in place to swear in Executors in lieu of requiring them to show up in person, which has made the appointment of out-of-state Executors much more practical.
Do I have to have the original will to probate or can I just use a copy?
It is always best to have the original will to probate. Unfortunately, sometimes all we have is a copy. Under Pennsylvania law, when attempting to probate a copy of a will, a legal presumption exists that the original will was intentionally destroyed or revoked. To overcome this presumption, one must prove that 1) an original will was actually executed, 2) the contents of the original are substantially the same as the copy, and 3) the testator had not revoked or destroyed the original prior to death. Someone trying to probate a copy of a will in Pennsylvania must provide at least two competent witnesses that will testify to both the execution and content requirements. This two-witness requirement is often a major hurdle when attempting to probate a copy of a will.
Who can petition to be appointed Administrator if there is no will?
If a decedent dies without a will (i.e., intestate), the Register of Wills will select someone to serve as Administrator of the estate. Each state has laws that outline who may serve as Administrator of an intestate estate. Pennsylvania law (known as the PEF Code) allows the following individuals in the following order to be appointed Administrator of an estate: 1) the decedent’s surviving spouse; 2) the decedent’s issue (e.g., children and grandchildren); 3) the decedent’s parents; 4) the decedent’s siblings; 5) the decedent’s grandparents; and 6) other interested parties such as the decedent’s creditors. Keep in mind that when multiple people have an equal right to serve as Administrator that those who do not wish to serve can execute a renunciation in support of someone else being appointed Administrator. If necessary, the Register of Wills may conduct hearings to determine who should be appointed.
What should I bring to the initial consultation with a probate attorney?
To get the most out of your first meeting with a probate attorney, you should start getting organized and gathering as many of the following documents as you can locate to bring to your consultation: original will (if one exists), death certificates, real estate deeds, copies of financial account statements, and copies of outstanding bills and invoices – including bills for funeral and medical expenses. While you will likely be gathering documents throughout the estate administration process, your early efforts to assemble as many of these documents as you can will ensure the estate can be handled as efficiently as possible.
How can I obtain a death certificate in Pennsylvania?
There are several ways to obtain a Pennsylvania death certificate. The easiest way is to request a death certificate through the funeral home, assuming you are using a funeral home. You may also request a Pennsylvania death certificate online through Pennsylvania’s only authorized vendor. Additionally, you may request death certificates by visiting one of Pennsylvania’s six Vital Records offices throughout the commonwealth or by mailing an Application for a Death Certificate to the Division of Vital Records, Death Certificate Processing Unit, PO Box 1528, New Castle, PA 16103. The fee for each death certificate is $20, which is waived if the decedent or the decedent’s spouse is a military veteran.
Who gets notified when an estate is opened in Pennsylvania?
Under Pennsylvania law, the Executor or Administrator of an estate is required to mail Notice of Estate Administration to specific individuals within three months of the grant of letters. Those required to be sent this notice include anyone named in the decedent’s will, the spouse and children of the decedent (whether or not named in the will), and all individuals entitled to receive property under the laws of intestacy when there is no will. Depending on the specific circumstances, other individuals may also need to be sent notice. Additionally, the personal representative of the estate must advertise that letters have been granted in a newspaper of general circulation near the decedent’s residence and in the legal journal designated by local rule. These advertisement notices must run once a week for three consecutive weeks. The purpose of advertising the estate is to give notice to potential estate creditors.
Who is responsible for paying a decedent’s debts in Pennsylvania?
When someone dies, their outstanding debts do not die as well. In simple terms, the decedent’s estate now becomes responsible for any debt. If the estate has sufficient assets to pay all debts, the estate’s Executor or Administrator may pay all creditor claims as they come and ultimately distribute any remaining property to the decedent’s beneficiaries or heirs. Things get a bit more complicated when the estate is insolvent, which is when a decedent’s debts are greater than their assets. In those cases, the personal representative for the estate will use all of the money from a decedent’s assets to pay off the debts. In Pennsylvania, the payment of debts follows a very specific order of priority, which is outlined in the PEF Code. If any debt remains unpaid after all of the assets have been exhausted, the decedent’s family members will not be responsible for the remainder.
How long does the typical probate take in Pennsylvania?
The estate administration process in Pennsylvania typically takes between one and two years. Many factors will affect the exact amount of time it takes to complete the process. Settling an uncontested estate, where there is no need for litigation, will generally take less time than estates that have fighting beneficiaries. In the most complicated cases, the probate process can take several years. Of course, the vast majority of complex estate administration cases are a consequence of lousy estate planning or no estate planning at all.
Do all of the deceased’s assets pass through probate?
Not all of a decedent’s property in Pennsylvania will pass through probate. When a person dies in Pennsylvania, all of their property is divided into two categories. Only assets that the deceased owned in their name alone or in some circumstances jointly with someone else but without rights of survivorship (also known as Tenants in Common) will pass through probate. These assets are commonly called “probate assets.” Other assets such as those held jointly with rights of survivorship and assets with designated beneficiaries will pass directly to another person by operation of law. These assets are commonly called “non-probate assets.”
Can an Executor or Administrator sell a decedent’s real estate?
Yes. The personal representative of an estate can sell the decedent’s real property. Pennsylvania law even permits the Executor or Administrator to sell a decedent’s real estate without getting all of the beneficiaries to approve unless prohibited by the decedent’s will. However, some situations do require approval of the beneficiaries, and in some cases court approval, such as any sale of real property to an interested party (e.g., a personal representative or a beneficiary).
What is the Pennsylvania Inheritance Tax? When must it be paid?
Pennsylvania is one of seventeen states that has a death tax, which is known as the Pennsylvania Inheritance Tax. An inheritance tax is imposed on the beneficiaries of an estate for the right to inherit property; however, a will often provides that the estate should pick up this tab as well. In Pennsylvania, the inheritance tax rate depends on the value of a decedent’s assets and the beneficiary’s relationship to the decedent. Pennsylvania Inheritance Tax is assessed on almost all assets owned by the decedent alone or with others. Payment is due nine months after a decedent’s date of death, after which the tax due accrues interest and penalties.
What other tax returns can a Pennsylvania decedent’s estate be required to pay?
Other than the Pennsylvania Inheritance Tax return, the Executor or Administrator of an estate may need to file other tax returns. In most cases, the estate’s personal representative will need to file the decedent’s final state and federal income tax returns. A much smaller amount of estates need to file a return for federal estate taxes, as well as state and federal income taxes for the estate in cases where the assets of the estate generate income as the estate is being administered.
Does Pennsylvania have a simplified small estate procedure?
Pennsylvania does offer a special process to administer estates without the need for formal probate where the decedent’s personal property does not exceed $50,000. However, using a “Small Estate Petition” in Pennsylvania does not eliminate the requirement to pay creditors and taxes. Also, if the decedent owned real property of any value, formal probate will be necessary. In addition to the “Small Estate Petition” procedure, Pennsylvania has other probate shortcuts that assist some families with transferring property more quickly and with less hassle. For example, Pennsylvania law permits financial institutions to release up to $10,000 to certain surviving family members without opening an estate as long as the funeral expenses have already been paid.
What is Ancillary Probate, and when is it used?
Sometimes, a decedent dies owning property in more than one state. If a nonresident decedent dies owning property in Pennsylvania, ancillary probate may be necessary to legally transfer those assets to the decedent’s beneficiaries or heirs. The process begins with obtaining an exemplified copy of the estate record from the state where the decedent was domiciled at death and filing it with the Register of Wills in the Pennsylvania county where the property is located. If a nonresident decedent owns property in more than one county in Pennsylvania, you may file the exemplified record in any county where the decedent had property. For those that are curious, an exemplified copy of a record is an official copy of public records made under seal that can only be made and attested by the body that originally issued the document – i.e., a fancy certified copy of a court record.
What court has jurisdiction over estate proceedings in Pennsylvania?
In Pennsylvania, the Orphans’ Court is the Division of the Court of Common Pleas that serves as the probate court with jurisdiction over estate proceedings. However, the Register of Wills office in each Pennsylvania county acts as a quasi-judicial body whose primary function is to determine whether a document offered for probate should be admitted to the official record. The Register of Wills alone has the authority to appoint personal representatives and grant letters. Prior to opening the official record, the Register of Wills can conduct evidentiary hearings, take testimony, and render decisions on disputed estate matters. Decisions by the Register of Wills may be appealed for specific reasons to the Orphans’ Court Division.
How does the probate process end in Pennsylvania?
There are essentially two ways to close an estate in Pennsylvania: informally and formally. Most Pennsylvania estates are closed informally, by release agreement, sometimes referred to as a Family Settlement Agreement. Release agreements allow the beneficiaries of a Pennsylvania estate to approve the administration of the estate and consent to the final distribution of the remaining estate assets. This agreement will usually include an informal account of the assets, liabilities, expenses, and proposed distribution, as well as important legal provisions for the protection of the Executor or Administrator. If all parties sign the release agreement, the estate may be closed without court action.
Alternatively, when a release agreement cannot be obtained, the Executor or Administrator must file a formal account for approval by the Orphans’ Court. Specific legal requirements must be followed when using this route. The Orphans’ Court will schedule hearings for all objections it receives from an interested party. After objections have been ruled on, the court will enter a final order, thus allowing the Executor or Administrator to close the estate.