Wills - Estates - Elder Law

A reoccurring area of confusion surrounds what happens when someone passes without leaving a will. There are generally two common misconceptions that persist. The first misconception is that all of the property will be taken by the Commonwealth. While a possibility, it is the ultimate fallback for the very rare situations discussed further below. The second misconception is that the surviving family members – children, grandchildren, siblings, parents, etc. – determine either amongst themselves or as dictated by the oldest or closest to the individual that passed, what happens to the property. This is not the case.

Under the law of Pennsylvania, if you are to die having made a valid Will, you are said to have died ‘testate”. In those situations, your assets are disposed of in accordance with the terms of the Will. If you die without a valid Will you are said to have died “intestate”. What happens when someone dies intestate? The Commonwealth of Pennsylvania has developed a series of rules that control what happens to the property of an individual who dies intestate, or if their valid Will does not address all of their property, known as the rules of “Intestate Succession”. These rules seek to protect and provide for those closest to the “decedent” (the individual who passed) along the lines of what it is presumed the average person would want.

The Intestate Succession rules are as follows:

If you are married…

...and you have no surviving descendants or parents, your spouse gets the entire estate.

...and have no surviving descendants, but have one or more surviving parents, your spouse receives the first $30,000 and ½ of the remaining balance.

...and have surviving descendants, all of whom are descendants of your spouse, your spouse receives the first $30,000 and ½ of the remaining balance.

...and have surviving descendants, at least one of whom is not a descendant of your spouse, your spouse receives ½ of your estate.

Then, the remainig balance of your estate (or entire estate if no spouse) is distributed...

...to your descendants (i.e. children, then grandchildren), if you have surviving descendants. If not…

...to your parents, if you have surviving parents. If not…

...to your brothers, sisters, or their descendants, if you have surviving brothers, sisters, or their descendants. If not…

...to your grandparents, and their children and grandchildren, if you have surviving grandparents, their children or grandchildren. If not…

...to your aunts, uncles, and their children and grandchildren, if you have surviving aunts, uncles, and their children and grandchildren. If not…

...then to the Commonwealth.

These rules can become rather complicated. For clarification, refer to the chart with examples or graph below.

Distribution of Estate

Once it is determine who shall receive from the estate, the law provides for two methods of distribution. Which method to be used depends upon the relationship between the decedent and the recipient of the property. Distributions can be made per capita when all of the recipients are in an equal degree of relation, or per stirpes when there is not an equal degree of relation. As you can see, the intestate succession rules can become rather confusion and great peace of mind can be provided by having a Will.

Children and Intestacy

The relationship between the decedent and a child or children are effected by numerous laws, some of which are discussed below.

1. Children that are legally adopted by the decedent will receive an equal share to biological children. Foster children or stepchildren that are not legally adopted will not automatically receive a share.

2. Children placed for adoption by the decedent and that are legally adopted by another family will not receive a share (with the exception of your children being adopted by your spouse).

3. If another family member (such as a grandchild) is legally adopted by another family can still receive a share if you have “maintained a family relationship”.

4. Posthumous children (children that are conceived by you prior to your death but are born after you pass) will receive a share.

5. Children born within a marriage are assumed to be the children of the husband and will receive a share. Children born outside of marriage will receive a share if (1) the father and mother later marry, (2) the father acknowledges his paternity, or (3) the father’s paternity is otherwise proven under Pennsylvania law.

Additional Rules & Intestacy

Beyond these rules, Pennsylvania has additional intestate succession rules that are relevant and are outlined below.

1. In order to inherit under Pennsylvania law, a person must outlive the decedent by five days, known as a “survivorship period”.

2. Half-relatives are treated the same as “whole” relatives.

3. Persons can be entitled to an inheritance regardless of their citizenship status or legal presence within the United States.

4. Under the “Slayer Rule” someone who willfully and unlawfully kills you cannot receive a share of your estate.