Wills - Estates - Elder Law

1. What is probate?

In Pennsylvania, probate is, at its simplest, the process of (1) locating and valuing the assets owned in the individual name of the decedent, (2) paying the final bills of the decedent (including taxes), and (3) distributing the remainder to the decedent’s heirs.

2. How does probate begin?

The probate process begins with the death on an individual thatown assets in his or her name alone. When this happens, a personal representative must create the estate to handle the decedent’s assets and take care of settling its affairs. When the personal representative is appointed in the decedent’s will, he or she is called the Executor. Otherwise, the personal representative is known as the Administrator. The personal representative is often a close family member or friend, but it need not be. In fact, a corporation, such as a bank or trust company, sometimes serves as a personal representative, frequently as a backup.

3. What happens during probate?

During probate, the personal representative is responsible for winding up all of the decedent’s affairs. He or she does this by notifying beneficiaries, gather assets, paying the decedent’s debts and taxes, accounting for the transactions of the estate, and finally by properly distributing the estate to the beneficiaries. Only the personal representative is legally authorized to deal with and handle the assets and affairs of the estate.

4. How long does probate take?

In Pennsylvania, the probate process does not take as long as in comparison with other states. Generally, the length of time to probate any given estate will depend on the size of the estate, and whether there are any obstacles or complications that could cause delays, such as will contests, difficulty in appraising assets, or tax issues. Typically, personal representatives are granted broad powers to accomplish the administration of the estate expeditiously and are able to liquidate assets and pay debts without court approval for each and every transaction.

5. How much does probate cost?

The costs associated with probate vary depending upon the county in which the will was probated. Costs for probating the estate include filing fees, advertising the estate, filing an inventory of the estate’s assets and various other papers. Attorney’s fees and a commission charged by the personal representative may also be taken out of the estate. Like the length of time for probate, the cost for any given estate will depend on the size and complexity of the estate.

6. What if there is no will?

If there is not a valid will left by the decedent, or if the will fails to appoint an executor, the probate court will name a personal representative (known as the Administrator) for the estate. This Administrator will settle the affairs of the decedent’s estate, and then distribute the remaining assets according to the Rules of Intestacy.

7. Who can contest a will?

Under Pennsylvania statutes and case law, numerous avenues exist in order to give someone standing to challenge a will. Those that may contest a will include: the intestate heirs, beneficiaries under a previous will, or any person whose share in the estate would be larger depending on whether probate is granted.

8. On what grounds can the will be contested?

There are several grounds on which a will can be challenged. The most well-known grounds tend to be a “lack of testamentary capacity” where the testator basically lacked the mental capacity to make the will, as well as undue influence and fraud. Challenges can also be made that the will in question is a forgery or that the will was not properly executed.

9. Do all assets pass through probate?

No. Some assets, such as those held in joint ownership between spouses are not subject to probate. Additionally, property held with others with a right of survivorship pass outside of probate, as do bank accounts held in joint ownership. Further, assets with designated beneficiaries such as life insurance policies, IRAs, and various retirement plans are usually not subject to probate.

10. How does probate end?

The probate process ends with the receipt by the beneficiaries of their share of the estate assets, after all other debts and expenses have been paid. After this, the personal representative is released from further responsibility for the administration of the estate.