Wills - Estates - Elder Law

1. Using the Wrong Documents to Probate the Estate

One of the first responsibilities of an Executor is to make sure he or she has the taken the right documents to probate. When the Executor takes the Will to probate, it means he or she takes the Will to the Register of Wills in the appropriate county, where someone will verify that the Will is authentic and that the person appearing as the Executor in in fact the Executor. Then the Executor will take an oath promising to protect and distribute the assets of the decedent’s estate. This is a fairly simple process, but it all depends upon the Executor having the right documents with him/her. The Executor needs to make sure the Will brought to probate is the most recent document, so a search of desk drawers, house safes, or safety deposit boxes are in order, as well as a visit to the lawyer that drafted the will.

2. Failing to Adhere to Probate Requirements

Unlike other states, the probate requirements in Pennsylvania are not very strict. That being said, there are a few requirements that must be done. In order to ensure that everyone who has a claim or interest in the decedent’s estate is aware that there is an estate, the law requires notice to be given to interested parties. The Executor must give notice to everyone named in the will, as well as to anyone that has been disinherited under the will, or anyone that has a right to challenge the will. Upon providing this notice, the Executor must inform the court by filing a certificate. Additionally, upon the naming of the executor and the creation of the estate, it must be advertised once a week for three weeks in a paper of general circulation and in the legal newspapers. This is to provide notice to creditors that might not otherwise receive notice of the estate. Advertising the estate cuts off claims of creditors after one year.

3. Making Distributions Too Early

The Executor is personally liable for the estate and the distributions. Thus, if the executor makes distributions from the estate before everything else is done (such as paying creditors), the Executor is personally at risk. Such distributions are known as “at risk distributions” and it is worthwhile to avoid these. While the Executor may make these distributions, a miscalculation or unexpected claim puts the Executor at risk unless he or she is able to get the money back.

4. Tax Mistakes

The tax forms for the Commonwealth of Pennsylvania and the Federal estate returns often look simple enough, but optimal strategies and techniques can make them more complicated. However, the bigger (or at least easier to avoid) mistake frequently made by Executors is not timely filing these documents. Missing deadlines can get you into trouble and can cost the estate money. Pennsylvania requires its inheritance tax return to be filed within 9 months or else they become subject to penalties and interests. Additionally, Pennsylvania offers a discount for paying part or all of the inheritance tax within 3 months and is a deadline that should be met if possible or practical.

5. Not Concluding the Estate

An Executor should not just distribute the assets of the estate once they reach the end of the estate administration. It is important that the estate is properly closed in order to protect the Executor’s liability. Generally there are two ways to close an estate. There is the more formal (and usually expensive) court approval process where the court approves the distribution of the assets. The alternative and less formal method is a family settlement. This option is available if all of the family is in agreement. The family settlement provides everyone with a record of the administration so they are aware of all the costs and allows them to agree to give money back in case a later debt appears.