Probate is the legal process of formally recognizing a will after a person dies, naming or validating an executor to administer the estate, and distributing assets to intended beneficiaries. It also requires paying the decedent’s outstanding debts and federal and state taxes.
The probate process in Pennsylvania varies based upon whether an individual dies having a Last Will and Testament or does not have such a document. If someone dies having executed a valid Will that was in existence at the time of their death, they are said to have died “testate.” The probate estate is distributed according to the Will. On the other hand, if someone dies without a Will, they are said to have died “intestate.” The probate estate is distributed to the heirs according to Pennsylvania’s intestacy laws. Additionally, not all estates require probate. Whether an estate needs to be probated depends on the assets that the decedent owned at the time of death and how they are titled.
Within the first month of a death, the first step in the probate process is the preparation and filing of the probate petition with the local register of wills in the county where the individual last resided. The petition requests Letters Testamentary be issued, if the individual had a Will, and that an Executor be appointed. Where the individual did not have a Will, the petition requests that Letters of Administration be issued and an Administrator appointed. If the decedent had a Will, the original Will must be submitted at the time the petition is filed. If the decedent did not have a Will, the petition must contain information identifying the heirs of the decedent (next-of-kin). Unlike some states, Pennsylvania does not require a formal court hearing before a judge to probate a Will.
Once the petition for probate is filed, and the Register of Wills has issued Letters Testamentary or Letters of Administration, the personal representative has many duties to fulfill. For the next three months of the administration, the duties of the personal representative include, but are not limited to the following: (1) Gather the assets; (2) Advertise the estate; (3) Give notice to beneficiaries or the heirs; (4) Obtain an EIN for the estate; (5) Open estate checking account; (6) Confirm and pay the debts of the decedent; (7) Liquidate and transfer the estate assets; and (8) Prepayment of Pennsylvania inheritance tax.
After the initial probate duties are fulfilled, typically around six to nine months from death, the personal representative will need to file tax returns, including the Pennsylvania Inheritance Tax Return. Once the estate assets are liquidated and the Pennsylvania inheritance tax return filed, the personal representative must then work on the First and Final Account which should be provided either informally to all of the beneficiaries of the estate or filed with the local court. Once the accounting is agreed upon or all objections have been decided on, then the personal representative must distribute the estate in accordance with decedent’s Will or if no will, in accordance with the intestacy law of Pennsylvania.
The typical estate administration process in Pennsylvania takes on average one year from start to finish. However, each estate is different and complexities that arise can add significant delay to the settling of an estate.
The legal advice in this column is general in nature, consult your attorney for advice to fit your particular situation.
Rebecca A. Hobbs, Esquire is licensed to practice in the Commonwealth of Pennsylvania and is certified as an Elder Law Attorney by the National Elder Law Foundation as authorized by the Pennsylvania Supreme Court. She is a principal of the law firm of O’Donnell, Weiss & Mattei, P.C., 41 High Street, Pottstown, and 347 Bridge Street, Phoenixville,610-323-2800, www. owmlaw.com. You can reach Ms. Hobbs at rhobbs@owmlaw.com
