The Uniform Probate Code (or UPC for short) is a set of model laws drafted and reviewed by the Uniform Law Commission, a group of national experts. The purpose of creating the UPC was to streamline the probate code across state lines, and make things simpler nationwide. When the original UPC was finally released in 1969, only sixteen states adopted it in its entirety.
To date, most states have not adopted the UPC, although many states are using portions of it for their own probate processes. Pennsylvania has not enacted the UPC in its entirety exactly as it was originally drafted.
However, Pennsylvania’s “Probate, Estates, and Fiduciaries Code,” as the statute is named, has portions that are substantially similar to the UPC. This particular set of laws also includes extensive provisions that deal with powers of attorney and appointment of guardians for disabled or incapacitated people, in addition to probate procedure.
What Does Pennsylvania’s Probate Process Look Like?
The probate process has a few different paths depending on the circumstances of the situation. If a person dies without having a valid will in place, their property will pass through intestacy. The intestacy laws have detailed rules about the distribution of property and the family members who receive property.
If a person dies with a valid will in place, however, then the probate process will be determined based on the value of the estate. Small estates have a simplified probate process, while larger estates are required to pass through the full probate system.
If the value of the estate is more than $50,000, formal probate is necessary to administer and distribute the estate. The full formal probate process involves several steps and some considerable paperwork, with certain steps having to adhere to a particular timeline:
- To initiate probate, the executor (the “personal representative”) files the original will with the Register of Wills office in the county where the decedent lived. The personal representative has up to 21 years from the date of death to open an estate file without obtaining a court order.
- The personal representative also files a petition for probate and estate information sheet with the local probate court (called “Orphan’s Court”) to open a probate case. Courts in many Pennsylvania counties make the required forms conveniently available online. While many counties use standardized forms, you may want to check with your local clerk of court to ensure there are no additional local or county-specific forms that are required.
- There is also a filing fee due at the time of filing, which is based on the value of the estate.
- The court will issue Letters Testamentary to the personal representative, which gives them the authority to act on behalf of the estate.
- The personal representative must also provide notice to the decedent’s creditors, heirs, and beneficiaries that probate has been filed. This is usually accomplished by publishing a notice in two local newspapers in the county where the decedent lived. Creditors have one year after the date of publication to make a claim on the estate.
- The personal representative’s job involves gathering together and creating an inventory of the decedent’s assets, as well as paying the decedent’s debts and taxes. Generally, the final inventory of assets should be filed with the court within 9 months of the appointment of the executor. During the course of probate, the personal representative must periodically file status reports with the court.
- After creditors and taxes have been paid, the personal representative must then file a petition to close the probate case with the Orphan’s Court. The personal representative must also file a final accounting with the court, showing what assets the estate owned, how the assets have been managed, what has been paid out of the estate, and the plan for distributing the remaining property to the beneficiaries.
- At the end of probate, the court will issue an order detailing how the remaining property in the estate is to be distributed to the beneficiaries.
Example: Michael dies in his Scranton condominium. Dwight, Michael’s friend and co-worker, was named in Michael’s will as executor of the estate. Heirs named in the will include Michael’s wife Holly and his friends Pam and Ryan.
The value of Michael’s estate, including magic trick supplies, a plasma screen TV, and his Sebring convertible, totals over $50,000. Since Michael lived in Lackawanna County, Dwight must file the will with the Lackawanna County Register of Wills office in order to initiate probate.
Dwight will also need to file a Petition for Probate and estate information sheet with the Lackawanna County Orphan’s Court. (Lackawanna County requires a typed petition and estate information sheet–handwritten petitions are generally not accepted.) County-specific probate forms for Lackawanna County are available online.
Once the Orphan’s Court issues Letters Testamentary, granting Dwight authority to act on behalf of Michael’s estate, Dwight can do an inventory of everything Michael owned–bank accounts, real estate, furniture, personal property (including multiple reams of paper and several small trophies). During the time that Dwight is gathering all of the assets and creating his inventory, he will be required to check in periodically with the court to give a status report on his work.
Dwight also must give public notice that probate has begun on Michael’s estate, so he publishes a notice in at least two local Scranton papers (probably the Times-Tribune and the Times Leader). Any creditors that Michael owed money to before he died now have one year to make their claims.
Once Dwight has paid Michael’s creditors and final taxes from the assets of the estate, he can file a final accounting with the court and petition to close the probate file. The court files an order closing the estate, and final distributions of Michael’s estate assets are made.
Pam and Ryan must pay inheritance taxes on their inheritances from Michael’s estate if Dwight did not do so in his role as personal representative. Michael’s spouse, Holly, is exempt from paying inheritance taxes.
What is the Process for Small Estates in Pennsylvania?
Pennsylvania offers a simplified process for small estates, defined as estates that have no more than $50,000 in assets. This total does not include real estate assets or amounts used to pay funeral expenses.
To begin the small estate process, the executor must file a written request with the local court. After review, the court may permit the executor to distribute the assets of the estate without having to go through the entire probate process.
Does Everything Have to Pass Through Probate in Pennsylvania?
Not necessarily, but it depends on the type of asset. Certain assets may be able to skip the probate process entirely:
- Joint Tenants With Right of Survivorship/Tenancy by the Entirety: Assets owned jointly with another person as “joint tenants with right of survivorship” will pass directly to the surviving owner, without the intervention of Orphan’s Court.
- Likewise, property held by spouses as “Tenants by the Entirety” will pass directly to the surviving spouse without the intervention of probate.
- POD Accounts: Bank or brokerage accounts that specifically name beneficiaries are known as “payable on death” or “transfer on death” accounts.
- The named beneficiary can assume ownership or control of the assets in the account immediately without the assets having to pass through probate.
- Life Insurance Proceeds/Retirement Accounts: Retirement accounts like 401(k)s or IRAs usually name specific beneficiaries and do not pass through the probate process. Life insurance policies in the decedent’s name should also name specific beneficiaries, and will pass directly to the named beneficiaries.
- It is generally a good idea to name secondary beneficiaries on these types of accounts in case the primary beneficiary dies and is unable to assume ownership of these assets.
- Living Trusts: Living trusts are popular tools for avoiding probate. Assets are technically held in the name of the trust, and therefore can pass to beneficiaries of the trust without having to go through the probate process.
Keep in mind that if the estate qualifies for the small estate process, the formal probate process can be avoided altogether–meaning that the estate can be administered without the close supervision of the court.
Does Pennsylvania Have an Inheritance Tax?
Pennsylvania is one of a handful of states that imposes an inheritance tax when anyone other than the surviving spouse or a charity inherits property from the decedent. These taxes are calculated as a percentage of the value of the heir’s share of the estate.
The decedent’s surviving spouse is exempt from inheritance tax. The tax is generally not due until nine months after the decedent’s death, but some personal representatives will pay early in order to take advantage of a discount on the tax bill.
Why Should I Hire a Wills, Trusts, and Estates Attorney in Pennsylvania?
If you are facing a legal issue when it comes to assets or probate, whether you have a family member who has died or you want to get started on your own estate planning, it is extremely helpful to consult a wills, trusts, and estates lawyer near you.
While it may be tempting to reach out to those who advertise on interstate billboards or have offices across the northeast, there are actually many benefits to choosing someone who lives and works in your town.
Not only will working with someone close by allow for easier access if you need to make office visits, but a local attorney will also be familiar with any local rules or practices that may influence your case.
An attorney local to you also has established connections when it comes to navigating the legal system, has earned the respect of their local colleagues and court officials, and is more likely to be familiar with the staff at your county Register of Wills and Orphan’s Court. All of this can work to your advantage when you are trying to figure out next steps for your case or situation.
Do I Need a Wills, Trusts, and Estates Lawyer for Probate Court in Pennsylvania?
Estate and probate issues can become very complicated in a short period of time, especially when there are several people involved or there is a contest to the will. While it may be intimidating at first, you never have to face Orphan’s Court alone–it is actually in your best interests to talk to an experienced Pennsylvania lawyer who works regularly with estate planning issues.
The right lawyer can help you sort out the paperwork involved with probate, represent you in Orphan’s Court, help with the final accounting of the estate, and provide sound advice on any issues you run into.
