What Is Probate (And Do I Have To Do It)?
February 27, 2015
By Sharon L. Steingard
Probate is the procedure by which an estate is opened when a person passes away. In Pennsylvania, when a person passes away, it is necessary for the executor or next of kin to analyze the assets that were owned by the decedent in order to determine whether it is necessary to probate and open an estate.
It is not always necessary to open an estate. The mere fact that a person has a will does not necessarily mean that the will must be probated and an estate opened.
In analyzing the assets owned by the decedent as of the date of their death, the important thing is to see how the assets were titled. If the assets were titled jointly with another person, then the assets will automatically become the property of the co-owner without the necessity of probate. If the assets named a beneficiary, such as a life insurance policy or a retirement account, then the assets would pass automatically to the named beneficiary, again, without the need of probate.
In Pennsylvania, it is only necessary to probate if the decedent owned assets, whether financial or real estate holdings, solely in their name which did not already have a beneficiary designated. Such assets are called probate assets, and in order to convey ownership of them it is necessary to probate.
If the decedent had a will, then the person responsible for the probate is the executor named within the will. If, on the other hand, the decedent died without a will, then the probate is handled by the next of kin. This would be the surviving spouse, if any. If there is no surviving spouse, then the responsibility for probate would pass to the children. The children can agree among themselves as to which of them will bear the responsibility for probating the estate.
Probate, or the opening of the estate, is done at the Office of the Register of Wills in the county where the decedent lived at the time of his/her death. If the decedent has left a will, the executor named in the will must present the original will and death certificate to the Probate Clerk in the Office of the Register of Wills. They also will be required to present a list of the assets owned by the decedent solely in their name without a designated beneficiary. With this information in hand, the clerk in the Office of the Register of Wills will help the executor complete the paperwork and open the estate. There is a similar procedure to be followed by the next of kin when a person dies without a will.
Once the estate has been opened, the executor has the legal responsibility to gather the assets of the decedent, pay the debts of the decedent, pay the inheritance tax and distribute the remaining assets in accordance with the terms of the will. When the decedent passes without a will, the administrator of the estate has the same responsibilities. The only difference is that because there is no will to follow with regard to the distribution of assets, the administrator must follow the law in Pennsylvania with regard to the distribution of assets. This law is called Intestate Succession. The law on Intestate Succession sets forth the order in which persons would inherit from someone who passes away without a will.
It is always wise to consult with an attorney to ascertain whether it is necessary to probate. When probate is necessary, there are numerous papers to be completed by the executor or administrator, and it is often wise to retain the services of an attorney to handle these legal matters.
The Wills, Trusts & Estates attorneys at Willig, Williams & Davidson are available to answer your questions with regard to whether it is necessary to probate, and to represent you in your capacity as the executor or administrator of the estate. If you have any questions, please call us at (215) 656-3600.