Probate

What Is probate?

The probate process takes place when someone dies owning assets in his or her name alone. The decedent's assets are effectively frozen upon their death until somebody obtains the legal authority to handle those assets. An estate must be opened by a personal representative to handle the decedent’s assets and settle his or her affairs. The personal representative is called an “executor” if appointed in the decedent’s will. If the decedent has not designated an executor in a will, the court appoints an “administrator,” which can be an individual or corporation such as a bank or trust company. The executor or administrator is the only person or entity legally authorized to deal with the assets of the estate and handle matters of estate administration.

Personal representatives are sworn in at the Register of Wills office at the courthouse and are personally answerable to the Orphans' Court Division of the Court of Common Pleas. These are old English and colonial names that are still used in Pennsylvania.

Why Is there a probate process?

Probate is a process required by state law. The Romans, from Julius Caesar to ordinary citizens, had wills and a probate process; many of the terms and concepts have been passed down to us. The probate process in Pennsylvania is an efficient way to protect beneficiaries and creditors and to assure proper distribution of estate assets. Assets held in a trust are governed by the terms of the trust rather than the decedent’s Will and pass outside the probate process. Even if assets are not subject to probate, they may still be subject to all of the same death taxes as probate assets.

Pennsylvania's probate process is far less cumbersome than in many states, but there are strict rules that must be followed. If the personal representative doesn't know the law or makes a mistake, they may have to pay out of their own pocket. 

Why have an attorney? Can't I do it myself?

Probate is a legal process. It's complex and involves taxes, financial accounting, and real estate law. The personal representative must follow the law and is answerable to the court for failure to do so, whether intentionally or negligently. Beneficiaries and family members have the right to sue the personal representative if there are mistakes. A smart personal representative will hire a lawyer who knows the Probate, Estates & Fiduciaries Code and the Internal Revenue Code.

The attorney represents and advises the personal representative, not the estate or the beneficiaries. The attorney is paid, however, from the assets of the estate.

What are the costs of probate?

In Pennsylvania, the costs of probate include filing fees for opening the estate, advertising the estate, maintaining real estate and other assets, paying bills, filing an inventory of estate assets and other papers to complete the administration process. Legal fees are paid to the attorney who represents the personal representative because this is a legal process. It may include preparation of various death and income tax returns. Obtaining appropriate legal advice about the administration of the estate can help contain costs and taxes. The personal representative is personally liable for following the law, so having an experienced estate attorney involved is a smart move.

Is probate a lengthy process?

In Pennsylvania, probate need not and normally does not take long in comparison with other states. Personal representatives are accorded broad powers to accomplish the administration of estates without court involvement. They are empowered to handle most details without seeking court approval for each and every transaction, such as the liquidation of assets and the paying of debts and expenses.

A typical estate can take 12-15 months to complete. Sometimes, if there are no problems and all the creditors are properly paid, the executor may make early, "at-risk" distributions before the expiration of one year. Pennsylvania inheritance tax returns are due nine months from the date of the decedent's death and it takes the government several months to examine the returns. The IRS is also involved in terms of the decedent's and the estate's income.