Estate Law

The following is intended to provide helpful information about estate law. The discussion is general, and exceptions apply. It is meant only to give a sense of this legal area, not to be exhaustive. Consult an attorney for details pertaining to your situation. Do not rely on this information alone, as your situation is unique from any other. This firm waives any liability resulting from your relying on the information provided. Again, simply consult an attorney for a proper handling of your case.

After a friend or family member deceases, he or she usually leaves behind both property and debt. What now?

The law requires that procedures must be taken through the courts after someone passes away, whether that person had a will or not, in almost all cases. If you dodge this procedure and simply divide property yourself, the tax owed continues to increase. And if the property is divided wrongly, you may find yourself in a real bind. (Suppose, for instance, you received $20,000 as an inheritance, but the will is later determined invalid and the money is someone else’s. You might need to cough up $20,000, which you already spent.) Avoid such problems and tax penalties by following the legally required procedure.

An estate will need opened with the Register of Wills in the relevant county. Particular documents are required: in Allegheny Co., a certified copy of the death certificate is required. The estate will need advertised in certain newspapers and, sometimes, in legal journals. A tax frequently must be paid to the Commonwealth (sometimes more than one tax). A document itemizing the assets will need filed with the Register of Wills. These are only some of the required steps. If you do not fully understand the procedure for handling an estate, you should hire an attorney, so that the procedure is done properly. In addition, the estate will probably be processed more quickly, than you trying to figure it out.

Is the will valid?

In Pennsylvania, a will must be written (vs. oral). It can be typed, or conveyed in ink, pencil, or even crayon. It must be signed though. A will might not be valid if the testator signed in the margin or on the back of the will. (A "testator" is someone making and signing a will.) Any part of a will preceding the testator’s signature is valid.

In Pennsylvania, a will does not need any witnesses, if the will was signed by the testator. If the testator uses a mark rather than a signature, two witnesses are required. If someone signs on behalf of the testator, two witnesses are required. You should see a lawyer for other rules determining whether a will is valid.

How are deeds, life insurance policies, and bank accounts handled?

If a deed is in the names of a husband and wife (tenancy by the entirety), and one spouse dies, the property immediately shifts to the living spouse. An estate does not need opened to transfer title to the living spouse.

When someone with a life insurance policy deceases, the money simply goes to the beneficiary immediately. For the beneficiary to receive the money, an estate does not need opened.

Some people have bank accounts with a designation "P.O.D." meaning payable on death. He or she had exclusive use of the account while alive, but placed a beneficiary on the account. At death, the money was intended to go automatically to the beneficiary. Such accounts will probably not escape being part of the probate process.

Sometimes the deceased has a bank account with a second person’s name on it. If the account says "with right of survivorship," then the second person gets the money, without an estate being opened. This wording is vital, however. Without such language, some or all of the monies in the account will likely be subject to probate. Particular trusts also escape the probate process. See an attorney for more information.

Is someone challenging the will, or is the will suspicious?

Sometimes a will comes out of the woodwork after someone deceases, and something seems wrong about it. You sense this. A will might be invalid, if the testator lacked mental capacity when drafting and signing it. (It usually does not matter what the testator’s state of mind was at death.) Testators may lack mental capacity if they cannot recognize: 1) the kind of property or the amount of it; 2) the people to whom they are giving the property; or 3) that they are transferring property to people once they pass away. An insane person is not necessarily mentally incapacitated.

Moreover, a will may be invalid, if someone exerted undue influence on the testator. Such may have happened if influence existed, which overpowered the testator’s mind, and that will would not have resulted without the influence. Undue influence more likely occurred if the beneficiary had an active role in finding the drafter of the will, supervising the work done, and not allowing others to examine the will afterwards.

An attorney can explain these and other grounds for contesting a will, such as fraud. Deadlines for contesting a will can also be provided.

What happens if someone dies without a will?

Where does the property go? The property is divided according to a Pennsylvania statute. The property first goes to a surviving spouse. The portion differs based on what other relatives are alive. For example, if the deceased has no living lineal descendants nor living parents, then the surviving spouse takes all the property. But if a parent lives and the deceased has no living lineal descendants, then the surviving spouse receives the first $30,000 plus one-half of any excess above the $30,000. An attorney can assist you with divisions in other circumstances.

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