Probate is typically required in the following situations:
- Assets Held in the Deceased Person's Name: If the deceased person owned assets solely in their name, such as real estate, bank accounts, or vehicles, probate is usually necessary to transfer ownership to the intended beneficiaries or heirs.
- No Beneficiary Designations: If the deceased person did not designate beneficiaries on certain assets, such as life insurance policies or retirement accounts, probate may be required to determine the rightful recipients.
- Disputed Wills or No Will: When there is a dispute regarding the validity of a will or if the deceased person did not have a will (intestate), probate is necessary to resolve the issues and distribute the assets according to Pennsylvania's intestacy laws.
- Creditor Claims: Probate allows for the identification and settlement of the deceased person's outstanding debts and claims. The court oversees the process to ensure that creditors have an opportunity to make a claim against the estate.
It's important to note that certain assets may be exempt from the probate process, such as assets held in joint tenancy with rights of survivorship or assets with designated beneficiaries. These assets can pass directly to the surviving joint owner or designated beneficiary without going through probate.
The Probate Process in Pennsylvania
When a Pennsylvania resident dies owning assets in their individual name, their estate must go through the probate process. This applies even if the deceased person had a will.
Probate is the formal legal proceeding where the executor named in the will files the following with the Register of Wills:
- The original will
- A death certificate
- A petition to be appointed executor
- An estate information sheet
The Register of Wills then issues what are known as Short Certificates. These serve as an executor's proof to all third parties of their legal authority to act as executor.
Because probate is a formal legal process, there are several steps that the executor must take:
- First, the executor must give notice of the estate administration to all beneficiaries and family members of the deceased. They must then certify to the court that the required notice to beneficiaries has been sent.
- In many estates, the executor will also need to notify any potential creditors of the estate. This is done by means of a classified notice in two newspapers.
- Once the executor files the Pennsylvania Inheritance tax return, they must file an Inventory with the court, listing all estate assets.
- If estate administration cannot be completed informally, the executor must file an Account and Proposed Schedule of Distribution with the court.
- Finally, the executor must file a Status Report with the court indicating that the estate administration has been completed.
In the usual case, it can take anywhere from 12-18 months to go through all of the steps. In addition, probate can be an expensive process. The costs of a probate administration can often total 10% of the value of the estate.
Finally, probate is a public proceeding. Anyone can go to the Register of Wills office and look up what the decedent owned. They may also look up the beneficiaries of the estate.
Can Probate Be Avoided in Pennsylvania?
Many people wonder if they can avoid the complex probate process for an estate. Importantly, not all assets go through probate. Generally, any assets that can transfer to another without court intervention can avoid the probate process.
Assets that can avoid the probate process in the state of Pennsylvania include:
- Revocable trusts
- Joint accounts
- Life insurance accounts
- Many retirement accounts
- Bank accounts with Payable-on-Death designations
- Assets with Transfer-on-Death registrations or deeds
Any assets owned through joint ownership with a "right of survivorship" also bypasses probate. Such assets automatically transfer ownership to the surviving owner.
Pennsylvania recognizes the following forms of joint ownership:
- Joint tenancy - Available to both married and non-married couples, where each joint tenant owns an equal share in the assets
- Tenancy by the entirety - Similar to joint tenancy, but only available to married couples
Simplified Probate in Pennsylvania
Some estates may qualify for a simplified probate procedure. In Pennsylvania, small estates are defined as those valued at $50,000 or less. This amount excludes real estate, some vehicles, funeral costs, and specific payments.
To start simplified probate procedures, the executor files their request with the local probate court. Courts can permit such proceedings without requiring notice to creditors.
Have Questions? Call A Probate Lawyer Serving Berks County.
If you have questions about whether probate is required in a specific situation or need additional information about probate in Pennsylvania, it is advisable to consult with an experienced probate attorney at Dorko Wealth & Estate Planning. We can assess the details of your situation and provide guidance based on Pennsylvania probate laws. Contact us today to schedule an appointment.
For assistance with Probate in Pennsylvania, contact our Berks County lawyers online or by calling (610) 957-0018 today!
HOW TO PROTECT ASSETS DURING PROBATE
Many people learn about how stressful and time-consuming probate is and look for options to avoid probate. There are methods to establish beneficiary designations for assets outside of probate.
Many types of assets will avoid probate in Pennsylvania, including:
- Real estate with joint tenancy with a right of survivorship or tenancy by the entirety: If you jointly owned real estate with your spouse, the property should transfer directly to the surviving spouse and skip probate.
- Payable on death accounts: Bank accounts can be assigned a “payable on death” provision that transfers funds to a named beneficiary.
- Life insurance policies and retirement accounts: If these types of accounts pay out to named beneficiaries, the funds should transfer without going through probate
- Additional money from bank accounts: A surviving spouse or another immediate relative can often procure up to $10,000 from the deceased’s bank account while avoiding probate, so long as they provide a valid death certificate.
In the appropriate case, these can be effective options for establishing non-probate assets.
Revocable Living Trusts and Probate Protection
Another popular option for avoiding probate is a revocable living trust.
In most cases, the client will name themselves as the initial trustee and beneficiary of the trust. In the case of a married couple, both parties will usually be named as the trustee and beneficiary. The client will then transfer assets such as real estate, bank account, and brokerage accounts to the trust.
Because of the terms of the trust, the client will have complete control over all the assets transferred into the trust. Upon the client’s death, the trust will have the same sort of dispositive provisions usually found in a will. The trust will provide for a successor trustee. This trustee will then be able to distribute the assets in the trust without having to go through probate.
This saves the family the delays and costs of probate. In addition, trust administration is a private process. The only people who will know what the deceased owned are the trustee and the beneficiaries.
THE BENEFITS OF HIRING A PROBATE ATTORNEY
Our Berks County probate lawyer, attorney Jeff Dorko, can advise executors and personal representatives as they administer the estate.
Jeff is very familiar with all aspects of probate in Pennsylvania and understands how to handle each stage of the process. He can work with you to avoid common mistakes that can prolong probate. We can help you take proactive steps that can protect the estate from incurring unnecessary fees.
We are fully aware of the hardship inherent to any probate scenario. Our estate attorneys will strive to give your case the compassionate and individualized attention it deserves.
LET US BE YOUR GUIDE THROUGH THE PROBATE PROCESS. CALL (610) 957-0018 OR CONTACT US ONLINE TO GET STARTED.
