What Is Probate?
Probate is the legal process of distributing a recently deceased person’s assets and settling their debts, which is also referred to as administering an estate.
Often, someone close to the decedent will be called on to be the personal representative for an estate, which can feel overwhelming during an emotional time. Fortunately, with the assistance of an experienced estate administration attorney, the probate process in Pennsylvania is fairly straightforward and nothing to fear.
Estate Administration: Testate vs Intestate
There are two types of estate administration in Pennsylvania, testate and intestate. A testate estate is one in which the decedent had a valid Last Will and Testament. The Will determines who will be in charge of managing the estate—the executor, and who will benefit from the estate—the beneficiaries. An intestate estate is an estate in which the decedent did not have a Will, and which will be administered in accordance with Pennsylvania’s Intestate Succession Laws.
How To Start The Probate Process In PA
1. The probate process begins by opening the estate.
When there is a Will, the executor named in the Will files a Petition for Probate with the Register of Wills in the county in which the decedent resided. Once the Petition is filed, the Register will issue Letters Testamentary. When there is no Will, a family member or other qualified individual can file a Petition for Letters of Administration.
In either case, the Letters issued by the Register of Wills grant the executor or administrator the authority to act on behalf of the estate.
The only difference between Letters Testamentary and Letters of Administration is whether the decedent had a Will. Both the executor and administrator can be referred to as the personal representative of the estate. The Register will also issue Short Certificates for the personal representative to his or her authority to act on the estate’s behalf with various institutions regarding the administration of the estate.
2. Once the estate is open, the personal representative is responsible for carrying out the terms of the Will, or in the case of intestacy, the provisions of the statutes concerning intestate succession.
The personal representative must notify any beneficiaries of the Will or heirs of the decedent, as well as any creditors who may have a claim against the estate. Legal notices are often published in the local newspaper and the county legal journal.
3. Once the notices have been circulated to beneficiaries, heirs and creditors, the personal representative is responsible for gathering the assets of the estate.
The personal representative often will need to open an estate bank account to hold any cash or liquid assets the decedent had and to pay any bills for the estate. Depending on the terms of the Will, the personal representative may have to arrange for the sale or transfer of real estate and personal items.
4. Then, the Pennsylvania Inheritance Tax Return must be prepared and filed along with other required filings.
All of the probate assets of the estate as well as their value will need to be identified and listed on an “Inventory” that is filed with the Register along with a Pennsylvania Inheritance Tax Return.
5. The probate process ends with distribution of probate assets to the beneficiaries.
The amount of time it takes for an estate to make distribution to its beneficiaries can vary greatly depending on the types of probate assets and the detail of the instructions in the decedent’s will.
What Are Non-Probate Assets?
Not every asset that the decedent owned is considered a probate asset—some assets are considered “non-probate assets.” These assets will not pass through the probate estate but they may still be subject to the Pennsylvania Inheritance Tax.
Non-probate assets include:
- Life insurance policies
- Retirement benefits
- Jointly held assets like a home or a bank account
Is There A Federal Estate Tax?
Most families will not have to worry about paying any Federal Estate Tax; an estate is not subject to the tax if it is less than the exemption amount and in 2023 the exemption amount is $12.92 million for an individual and $25.84 million for a married couple. The Pennsylvania Inheritance Tax applies to all assets of an estate in Pennsylvania, although the tax rate varies based on the degree of relationship between the decedent and the beneficiary.
Surviving spouses in Pennsylvania are exempt from paying inheritance tax, as are charities. Children, grandchildren and parents who receive an inheritance are subject to a 4.5% tax, siblings of the decedent are taxed at a 12% rate, and anyone else who receives an inheritance is taxed at a 15% rate.
The personal representative is responsible for making sure any outstanding debts and final expenses of the decedent are paid out of the assets of the estate. The decedent’s creditors have one year from the publication of legal notice regarding the opening of the estate to make a claim against the estate. Once all of the decedent’s debts have been satisfied and fees and taxes have been paid, the remaining assets of the estate can be distributed either according to the decedent’s Will or the intestacy laws of Pennsylvania.
** This article is provided for informational purposes only and should not be construed as legal advice or as creating an attorney-client relationship where one does not already exist. This article was published on September 11, 2023. Please check back or contact us for the most up-to-date information.**