Klenk Law

The following FAQs are specific to Pennsylvania estate laws and procedures.

What are the Legal Requirements for a valid will in Pennsylvania?

In Pennsylvania, you must be at least 18 years of age and sound mind to make a will. Your will must be in writing and signed at the end by the testator. If the testator is unable to sign his or her will, someone else may sign the will for the testator so long as this is done in the testator’s presence and at his or her direction.

In Pennsylvania it is not necessary for the signing of your will to be witnessed by anyone; however, it is customary to have at least two people witness the signing of your will.

Pennsylvania does accept self-proved wills. Such a will includes a separate page which is notarized and signed by the testator and witnesses. The purpose is to ensure that upon the death of the testator, the will be accepted as signed and the witnesses to the will do not need to be found.

You can read more about Wills HERE

What is a Pennsylvania Codicil?

A codicil is an amendment or addition to a will that you have already executed. A codicil may be as simple as changing or adding a name or a number, or it can be as complex as rewriting or adding whole new sections to your existing will. A codicil to your will becomes part of your will and will be read together with your will to figure out what you want to be done with your assets after your death.

A codicil must be executed in the same manner as required by your states as for a will. This means that that you will need two witnesses and perhaps a notary to have your codicil be accepted.

Can I Revive my Old Pennsylvania Will by Destroying my Current Will?

In Pennsylvania, you can revive an old will by revoking your new will in writing and stating in writing that you intend to revive your old will. You will not revive our old will simply by destroying your new one.

What Happens if I Marry, Divorce, or have Children after I sign my Pennsylvania Will?

In Pennsylvania, if you marry after you execute your will, your new spouse will be entitled to whatever they would have been entitled to if you were to have died without a will (See: “What if I die without a Will in Pennsylvania?”). This is true unless your will provides your new spouse with a greater share of your estate, or it appears clear that you executed your will knowing you were getting married and you intentionally omitted your new spouse.

If you divorce after you have executed your will all portions of your will that make mention of or give anything to your ex-spouse are revoked automatically.

If you have or adopt a child after you execute your will that new child will take the portion of your estate, after your surviving spouse, that they would have been entitled to if you had died without a will.

Learn more about the essential legal documents for life’s big transitions HERE

Can I make a Handwritten Will?

Yes, in Pennsylvania a handwritten will, otherwise known as a “holographic will” is recognized as a valid will. However, such a will should still be signed and witnessed in the same manner as any other will as explained above.

Do I have to file my will with a Court or in Public Records?

In Pennsylvania, until your death, there is no system where you can file your will.

Can I Disinherit Someone in Pennsylvania?

Depending on who it is you wish to disinherit, the answer will vary. In Pennsylvania, as in other states, there is no requirement that you have to leave anything to your children. You may disinherit any or all of your children as you desire. However, In Pennsylvania, unless you have a valid post or prenuptial agreement, your spouse will have a right to a portion of your estate even if you have intentionally excluded them from your will. In Pennsylvania, your spouse will be entitled to elect against your estate and collect an elective share of 1/3 of your total estate regardless of whether or not you have a valid existing will.

What Should I Do With My Will After I sign it?

After you sign your will, you should keep it in a safe place that is easily accessible. Out clients will often store their original documents in our fireproof files where they cannot be easily destroyed or stolen. Be sure that the person you have appointed as your personal representative knows where you have placed your will. If you store your documents in our fireproof files, your personal representative need only prove that you have died for the documents to be released to them.

Many people keep their wills and other important documents in their safe deposit boxes. Though these documents may be safe from fire and theft in a safe deposit box, your personal representative may have a difficult time accessing these documents when they are needed. Because of the delays and complications that can arise with the use of safe deposit boxes for this purpose, it is not recommended that these be used for the safekeeping of documents such as these.

Where Can I Get My Will Notarized?

Your bank is an excellent place to locate not only a notary but also witnesses for your documents.

Do I need a Lawyer to Make a Will?

As long as a Will has satisfied all the requirements set forth by the state in which your live or the state in which you sign the Will, the Will is valid, no state has made having a lawyer draft the document be a requirement of a valid Will. The problem, of course, is that unless you are an Estate Planning Attorney, you likely do not know what is required to make a valid Will or Trust. A lawyer that focuses exclusively on Wills and Trusts can help make sure your wishes are followed after your death.

Do Jointly Held or “In Trust For” Assets Pass Under the Terms of My Will?

No. Jointly held assets pass to the other joint owner at your death and “In Trust For” assets will pass to whomever you have designated as the beneficiary. It is a common, erroneous, mistake to believe that if you draft a Will that its terms cover an IRA, Life Insurance Policy or a Bank Account that names a beneficiary. Your Lawyer should work with you to review all your accounts, deeds and IRAs to make sure your assets pass to the correct person at your death.

Can I Use My Will to Care for a Special Needs Person, So They Still Qualify for Their Government Programs?

Yes, if done properly. This is a rather complex area of the law, and the terms in your Will must be exact. But, if done properly, a Special Needs Trust can be created to care for a special needs person while keeping the Person on their existing government programs.

Can I Put My Funeral Arrangements in my Pennsylvania Will?

Yes, but be careful, as your family will likely not contact your Estate Planning Lawyer or look at your Will until after your funeral. Make sure that your plans are in your Will and are known to key people who will be contacted at your death.

How Often Should I Review My Will?

Will reviews are situational, but as a general rule, you should review your Will’s terms annually. At our firm, we send you a summary of your Will’s terms at least twice a year and do not charge for an in-person Will review if there are no changes.

Can a Will help Reduce Pennsylvania Death Taxes?

The terms of your Will and the Estate Planning techniques used can certainly reduce or even avoid Estate and Inheritance Taxes. This is a very complex area of the law, and you should work closely with your Estate Planning Lawyer.

What If I Die Without a Will in Pennsylvania?

If you die without a Will, you are “Intestate” and your assets pass by rules set up by the Commonwealth. A common misunderstanding is that if you die without a Will, your assets may end up passing to the Commonwealth. This is possible, but only if you have no living relatives. The Commonwealth has set up rules to divide the assets of intestate estates, but often these rules do not give assets to the people that the deceased person would have had they put his or her wishes in a Will. For more details, read our Article about Pennsylvania Intestacy.

What is Probate?

Probate in Pennsylvania refers to the process where the Commonwealth of Pennsylvania recognizes the executor or administrator as the estate’s official representative. When someone dies, ownership of all assets in that person’s name will now pass to someone else. The Probate Process provides the rules and oversight of that process. For a Pennsylvania estate, the initial step is to have the will recognized as valid by the Register of Wills of the county where the deceased was a resident. For example, if the deceased was a resident of Philadelphia County, the will is filed with the Philadelphia County Register of Wills. If there is no will, then the process begins with the selection of the person who will serve as the Administrator of the estate. If the Register of Wills accepts the petition for probate, then the paperwork is given to the executor or administrator authorizing them to represent the estate. Probate has begun.

Where do I Probate the Pennsylvania Will?

The will is registered with the Register of Wills of the county that the deceased was a resident. For example, if the deceased died a Philadelphia resident the will is probated with the Philadelphia Register of Wills.

To review a list of Pennsylvania Registers of Wills, Click Here.

What if I am an Executor, but I don’t Live in Pennsylvania?

Our experienced Probate teams can make arrangements for you to be sworn in as executor outside of Pennsylvania. In most cases, we can make arrangements so that you will never have to come to Pennsylvania at all. Because we focus our practice on Probate matters, we can help make the probate process as easy for you as possible.

To learn more about Probate Click Here.

How Long Does Probate Take?

There is no set time limit for an estate’s probate. As explained below, I often tell executors to tell the heirs that the estate will be open for at least a year, but we can often close the estate earlier (making the executor look good). The actual time the estate will be open will depend upon the estate’s assets and the taxes that need be paid. Pennsylvania’s Probate system is efficient, but there are certain steps over which you have no control. For example, certain tax returns need be filed, and the forms might not even be available until the year following the death. The estate might contain hard to sell assets, such as an art collection or real estate, so the estate will have to stay open until the assets are sold. For a more detailed estimate, feel free to contact us with the details of your estate.

Here are a few common examples of tasks that will force an estate to stay open longer than others:

The deceased’s final income tax return. If the deceased lived even one day into the year, you might have to file his or her final income tax return. In Pennsylvania, this will mean at a minimum filing a final 1040 to the IRS, a final PA40 to the Pennsylvania Department of Revenue, and perhaps other returns to local taxing authorities, such as the Philadelphia School Tax. You may not be able to file these returns until the year following the death.

Pennsylvania Inheritance Tax Return: This return is due nine months after the date of death, and it can easily take that long to gather together the necessary information to complete the return. Once filed, it can take four months to get a response from the Pennsylvania Department of Revenue.

Inventory to the Register of Wills: Every executor and administrator must file an inventory to the Register of Wills within nine months from the date the will is filed.

The Estate’s Income Tax Return: If the estate creates income, then the estate must file a Form 1041 Return with the IRS and a PA41 with the Pennsylvania Department of Revenue. Once filed, it can take months to determine if the return has been accepted as filed.

Sale of Real Estate: If the estate has real estate, preparing the property for sale, marketing the property and then closing the sale can take well over six months. Specialized property, such as commercial property or a farm can take even longer.

Creditor Claims: Creditors of a Pennsylvania estate can bring their claims for one year following the estate’s advertising. If the executor releases the estate’s funds to beneficiaries, and a legitimate creditor is discovered, the executor might be personally liable to the creditor if the estate funds cannot be recovered from the beneficiaries. Most executors find it wise to hold the estate assets until the date for creditor claims has passed.

To learn more about Probate Click Here.

What if the Decedent Left No Will?

If a Pennsylvania resident dies without a will, the estate then passes through the intestacy laws. The Probate Lawyer will then file a different petition with the Register of Wills to have an Administrator named, rather than an executor. The rules that cover who can serve as Administrator are rather complex, so if you have a relative who died without a will in Pennsylvania, feel free to contact us to help explain the process.

What are an Executor’s Duties and Responsibilities?

Once a probate petition is accepted, the executor’s or administrator’s job is to gather all the assets, pay creditors, satisfy all income/inheritance/estate taxes, and then distribute the remaining assets as the Will directs. Each estate is different, and the amount of work and responsibility may vary. The estate’s location will also affect the personal representative’s responsibility. A Philadelphia estate must make certain reports to the Philadelphia Register of Wills, which differs from the reporting for a Palm Beach County FL estate’s reports to the Palm Beach County FL Surrogate. Strangely, even within a state, the various reporting standards may differ.

A Probate Attorney versed in the rules of Pennsylvania probate can advise the executor on these reports. In the end, before distributing any funds, the executor should submit a report of what has been done to the beneficiaries and obtain a complete release of liability. Without this release, the executor can be forced to return to court years later and account.

As Pennsylvania Probate Attorneys, we regularly represent executors, administrators, and personal representatives and guide them through the probate process. We work with you to analyze your particular estate and advise you of what options exist to bring the estate to a close.

Am I Entitled to Compensation for Acting as a Pennsylvania Executor?

An Executor or Executrix or Personal Representative is entitled to compensation based on several factors. For more details, read our Article on Executor Fees in Pennsylvania.

What is an Executor’s Accounting?

An executor’s accounting is the report of the executor’s financial actions from the date the executor began serving until the end. It shows what was collected, what happened to those assets, any gain or losses on those assets and, in the Schedule of Distributions, how the executor plans to distribute the assets to the beneficiaries. In Pennsylvania, these accountings can either be informal or formal accountings filed in the Orphans’ Court.

Why Should the Executor Prepare an Accounting?

The executor should always obtain a release of liability from the heirs. The heirs, though, will often not wish to release the executor unless the executor can “account” for all the assets of the estate and explain all the expense incurred. To satisfy the heirs, the executor will need to provide an “accounting” of the assets and expenses. In Pennsylvania, the rules that cover accountings are created by the Pennsylvania Supreme Court and can be further narrowed by each count’s Orphans’ Court. For example, in Philadelphia, there are many more detailed rules found in the Philadelphia Orphans Court Rules than in other counties, such as the Pike County Orphans’ Court Rules. If the heirs are satisfied with the accounting, then they will sign the releases freeing the executor from liability.

Can the Beneficiaries Force the Executor to Prepare an Accounting?

In Pennsylvania, the heirs can force the executor to account by filing a Petition for Accounting with the Orphan’s Court. If they satisfy the judge, an order to account is issued.

[expanding title=”What if the Executor Cannot Explain Where Assets Went, or Why Expenses Were Incurred?”]If the numbers do not add up, the executor may be found personally responsible for any shortfall. The court can “surcharge” the executor for the difference.[/expand]

[expanding title=”I am an Executor, How Can a Pennsylvania Probate Attorney Help me with an Accounting?”]When filing an accounting, the Orphans’ Court requires the account to follow a specific format. The accounting must also be submitted with a specific petition. Further, accountings and the accompanying petitions may vary from County to County within Pennsylvania. An experienced Probate Attorney who focuses in accountings is familiar with these differences. It is better to provide the Orphans’ Court a Petition in the correct format, rather than having the judge find it incomplete and order the Petition refilled.

To learn more about Probate Click Here.[/expand]

I am a Beneficiary, How Can a Pennsylvania Probate Attorney Help me with an Accounting?

At times an executor may refuse to provide a beneficiary with an acceptable accounting. The Orphans’ Court has created a system that allows a beneficiary to force the executor to provide an accounting. Our firm has been forcing executors to file Accountings for over 20 years and, once the accounting is obtained, our background in estate planning and tax allows us to help you interpret the accounting and search out discrepancies for your objections.

What Tax Returns Does a Philadelphia Executor File?

It is important that all tax returns are filed correctly and in a timely fashion. The Executor or Administrator is Personally Liable for errors that harm the beneficiaries. Filing a late tax return means interest and penalties for which the executor may be personally liable. When an executor hires a Probate Attorney, it is that Lawyer’s primary job is to advise and protect the executor. Probate Lawyers are well versed in preparing all estate related tax returns and can help make sure all returns are filed correctly and timely. In Pennsylvania an executor may have to file the following returns:

  • The Deceased’s final Form 1040 (Income tax)
  • The Deceased’s final Form PA40 (Income tax)
  • The Form 1500 (Inheritance Tax)
  • The Form 706 (Estate Tax)
  • The Form 1041 (Estate’s income tax)
  • The Form PA41 (Estate’s PA income tax)
  • The Form 709 (Gift Tax)
  • School Tax (Income Tax)
  • Payroll Taxes
  • The Deceased’s Net Profits Tax
  • The Deceased’s Business Privilege Tax
  • Specialized Taxes that the Deceased’s business might owe.

Do I Need to Come to Pennsylvania to Probate the Will?

If you have the original will and an original death certificate, our firm can set up a process where you are sworn in as executor in your home county. There is no “reading of the will” required, so for most estates our clients never have to come to Pennsylvania.

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