Frequently Asked Questions
About Pennsylvania Estates and Trusts

By Daniel B. Evans
Copyright © 2001-2006. All rights reserved. Not legal advice.

[Last updated: 6/18/2006]

Table of Contents

• Estate Planning

  • Can I write my own will?

  • How can I tell whether I should have a revocable trust or a will?

  • How can I appoint guardians for my children? How can I make sure that my ex-husband or ex-wife does not get custody of my children?

• Estate and Trust Administration

  • Can I get a copy of someone else's will who has died?

  • How difficult is it to probate a will, and do I need a lawyer?

  • If the debts of an estate are more than the assets, what happens? Does the surviving spouse have to pay the debts of the deceased spouse, or do children have to pay the debts of the deceased parent?

  • Does Pennsylvania have any special, simplified probate procedures for small estates?

  • How is an estate distributed if there is no will?

  • Who administers an estate when there is no will (or the executor named in the will is unable or unwilling to serve)?

  • If I'm the beneficiary of an estate, how do I figure out how much inheritance tax I will have to pay?

  • Do I have to pay Pennsylvania inheritance tax on what I receive from an estate outside Pennsylvania?

  • If my father (or mother) was the beneficiary under a will, but died before the person who wrote the will, do I have any interest under the will?

  • How can I find the assets of the decedent?

• Other Questions

  • How long can a man and woman live together before it is considered to be a "common law marriage" in Pennsylvania?

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  Frequently Asked Questions

  Estate Planning

  Can I write my own will?
  Yes. Will it be valid and do what you want? I have no idea.
  Asking me (or anyone else) if you can write your own will is kind of like asking if you can repair your own car. It would depend on what kind of car you have, what's wrong with it, and whether you're any good with tools and mechanical problems. Similarly, whether you can effectively write your own will depends on your circumstances, what you want to accomplish, and whether you have good writing skills.
  For more information on wills, including an example of a simple will, see my article "Why Have a Will?".
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  How can I tell whether I should have a revocable trust or a will?
  First, you should understand that a revocable trust does not save any taxes.
  The major purpose of a revocable trust is administrative convenience, such as the avoidance of probate proceedings (for states in which probate proceedings can be expensive or time-consuming), simplification of the transfer of assets upon death, or for continuity of management during lifetime and after death.
  Pennsylvania probate proceedings are both quick and inexpensive, and so I rarely recommend a revocable trust except in the following circumstances:
  • The client is elderly or infirm, and needs help managing assets during lifetime.
  • There are life insurance proceeds, retirement benefits, or other contractual benefits that need to be held in trust after death, and the creation of a lifetime trust will simplify the beneficiary designations and the collection of the proceeds after death.
  • The client already has assets in a custodian account with a bank or trust company and wishes for that institution to serve as executor and trustee after death.
  Therefore, whether a revocable trust is appropriate to your circumstances can only be determined by consulting with a knowledgeable lawyer (and paying him or her for her advice).
  For more information on revocable trusts, see my article "Myths about 'Living Trusts.'"
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  How can I appoint guardians for my children? How can I make sure that my ex-husband or ex-wife does not get custody of my children?
  A Pennsylvania statute (20 Pa.C.S.   2519) allows the "sole surviving parent" to appoint a "guardian of the person" by will for any minor children. The guardian appointed by the parent in his or her will does not need to be approved by any court, and would be difficult for any other relatives to challenge.
  Because the statute refers to the "sole surviving parent," it is really not possible for a parent to appoint a guardian if the other parent is still living. However, the Pennsylvania Supreme Court recently ruled that a court could grant custody of a minor child to the child's step-father, instead of the child's father, if the court found that it was "in the child's best interests." For that reason, it might still be beneficial to name a guardian for minor children even if the other parent is living, because the recommendation of the deceased parent might help a court decide to grant custody to the guardian named by the deceased parent.
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  Estate and Trust Administration

  Can I get a copy of someone else's will who has died?
  Yes. Once someone has died and the will has been filed for probate, the will is a public record.
  Wills are almost always filed with an official in the county in which the decedent was "domiciled" (i.e., maintained his or her principal residence) at death. In Pennsylvania, the official is the "Register of Wills," and I have compiled a list of the addresses and telephone numbers of the Registers of each county.
  To get a copy of a will, you will need to get in touch with the Register of the right county and tell them the name of the decedent and the year of death. They will be able to tell you if there is a will or estate administration, and the cost of getting a copy.
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  How difficult is it to probate a will, and do I need a lawyer?
  Probating a will in Pennsylvania is usually not difficult, and you are not required to have a lawyer. (In fact, some counties will now fill out the petition for probate for you if you go in and have all of the information you need.
  For more information on how to probate a will in Pennsylvania, including copies of the most often needed forms, see my article "How to Probate a Will in Pennsylvania."
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  If the debts of an estate are more than the assets, what happens? Does the surviving spouse have to pay the debts of the deceased spouse, or do children have to pay the debts of the deceased parent?
  One of the duties of the executor or administrator of an estate is to make sure that the debts of the decedent have been paid.
  If the assets of the estate are not sufficient to pay all of the debts, a Pennsylvania statute provides for the following priority of payment:
  • The costs of administration (i.e., filing fees, legal fees, accounting fees, and the compensation of the executor or administrator).
  • The family exemption (a payment to the surviving spouse, or children or parents of the decedent residing in the same household with the decedent, of cash or property with a value of $3,500).
  • The costs of funeral and burial, and for medicines and medical care within six months of death, and for services by any employees within six months of death.
  • The cost of a gravemarker.
  • Rent owed for the decedent's residence for the last six months before death.
  • All other debts and claims.
  Claims of the federal government for taxes owed may have priority over other debts because of liens created by federal law.
  If all of the costs and debts having priority have been paid, and there is not enough money to pay the remaining debts (the last category), then the debts are paid proportionately from the remaining funds, each creditor getting the same percentage of the debt (e.g., the remaining debts might be paid 15 cents for each dollar of debt).
  The executor or administrator is not responsible for the payment of any costs or debts of the estate unless the executor or administrator makes a mistake. For example, if an executor were to distribute money to a beneficiary and then discover that there were more debts to pay, the executor might have to pay the debt out of the executor's own pocket (unless the executor can recover the money from the beneficiary).
  Because an executor or administrator can be personally liable for mistakes, they will often not pay debts from an insolvent estate without court approval (which protects them from personal liability). Distributions to beneficiaries without court approval are called "at risk" distributions, because the executor or administrator is making the distributions with the risk of liability if there are more debts. An executor or administrator will usually ask a beneficiary for a "refunding agreement" or "indemnification agreement" so that the beneficiary can be required to repay the money to the estate if it turns out to be needed to pay other debts or other beneficiaries.
  The creditors of a decedent can usually reach only the assets of the decedent, and there are certain types of assets that are exempt from the claims of creditors or are not considered to be part of the estate:
  • Life insurance proceeds payable to a named beneficiary (and not the estate) are exempt from the claims of creditors under Pennsylvania law, even though the decedent owned the policy and the policy had cash value before death.
  • Pension, profit-sharing, and other qualified retirement plans payable to beneficiaries (and not the estate) are exempt from the claims of creditors under federal law.
  • Property jointly owned by a husband and wife (known as "tenants by the entireties") automatically becomes the property of the surviving spouse, and is not liable for any debts of the deceased spouse under Pennsylvania law (but is still subject to the mortgages and liens placed on the property during lifetime).
  Individual retirement accounts, property owned jointly with non-spouses, and other kinds of property payable on death to a named beneficiary might or might not be subject to the debts of the deceased owner, even though not considered to be part of the "probate estate" under the control of the executor or administrator. (There is some confusion in the law on this subject.)
  Generally speaking, a husband or wife is not responsible for debts of a deceased spouse, and children are not responsible for the debts of a deceased parent. However, there are some exceptions:
  • Anyone who co-signs or guarantees a debt remains liable even after the death of the other debtor. So, for example, if both spouses sign a note, both remain liable for the debt even though the proceeds of the note benefitted only one of the spouses. A spouse or child may also be responsible for hospital or nursing home care of a deceased spouse or parent because of contracts signed by the surviving spouse or child when the decedent was admitted.
  • A person who uses a credit card may be liable for those charges on the card even though the person's name was not on the card or the account.
  • A husband or wife may be liable for the "necessities of life" provided to the deceased spouse, such as emergency medical care immediately before death, even though provided without the knowledge or consent of the surviving spouse.
  • If the decedent was receiving public assistance before death, a surviving spouse or child might be liable to the Commonwealth of Pennsylvania for reimbursement of that public assistance. (This is a statute that is rarely enforced, if ever.)
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  Does Pennsylvania have any special, simplified probate procedures for small estates?
  There is a special, one-step probate procedure for estates with a gross value of less than $25,000. (See 20 Pa.C.S. § 3102.) However, very few people use this procedure because it is more time-consuming and troublesome than the regular probate procedure.
  There are also special procedures so that unpaid wages of not more than $5,000 may be paid directly to the family, bank accounts of not more than $3,500 may be used to pay funeral bills, and life insurance of not more than $11,000 that is payable to the estate may be paid directly to the family (life insurance payable to a named beneficiary other than the estate is not part of the estate and requires no special provisions), and it is possible that those provisions could be used to avoid any probate proceedings in a very small estate. (See 20 Pa.C.S. § 3101.)
  The reason that you don't see many ways to avoid probate in Pennsylvania is that the procedure is very simple, does not require any court hearing, and usually takes no more than 15-20 minutes in the office of the Register of Wills. See my article "How to Probate a Will in Pennsylvania" for details.
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  How is an estate distributed if there is no will?
  If someone dies without a will, that person is said to be "intestate" and the estate is distributed according to the laws of "intestacy."
  Most states have intestacy laws that determine how an estate is distributed if there is no will (or there is a will but the will fails to direct how the entire estate is distributed).
  In Pennsylvania, an estate not disposed of by will is distributed as follows:
  • If there is a surviving husband or wife (the statute uses the gender-neutral word "spouse") but there are no surviving issue (i.e., children, grandchildren, or other descendants) of the decedent, and no surviving parent or parents of the decedent, then the surviving spouse receives the entire estate.
  • If there is a surviving spouse and no surviving issue but one or both of the decedent's parents survive the decedent, then the surviving spouse receives the first $30,000 plus half of the balance of the estate and the rest of the estate (if any) is distributed to the surviving parent or parents.
  • If there is a surviving spouse and surviving issue of the decedent and all of the issue are also issue of the surviving spouse (e.g., there are no children by another marriage), then the surviving spouse receives the first $30,000 plus half of the balance of the estate and the rest of the estate (if any) is distributed to the children (or their issue).
  • If there is a surviving spouse and surviving issue of the decedent and one or more of them are not issue of the surviving spouse (e.g., there are children by another marriage), then the surviving spouse receives half of the estate and the other half is distributed to the children (or their issue).
  • If there is no surviving spouse, then the estate is distributed as follows:
    1. To the children of the decedent (or their issue).
    2. If there are no children or other issue of the decedent, then to the parent or parents of the decedent.
    3. If there are no issue and no parent surviving the decedent, then to the brothers and sisters of the decedent (or their issue).
    4. If there are no surviving issue of the decedent, no surviving parent, and no surviving issue of either parent of the decedent, but at least one grandparent surviving the decedent, then half to the paternal grandparents of the decedent and half to the maternal grandparents of the decedent. The shares of the decedeased grandparents are distributed to their issue or, if there is no issue, to the grandparents (or their issue) on the other side of the decedent's family.
    5. If there are no surviving issue, no surviving parent, no surviving issue of either parent, and no surviving grandparent, then to the uncles and aunts of the decedent (or their issue).
    6. If there are no surviving issue, no surviving parent, no surviving issue of either parent, no surviving grandparent, and no surviving issue of any grandparent, then to the Commonwealth of Pennsylvania.
  The word "issue" means children, grandchildren, or other descendants, and the parenthetical phrase "(or their issue)" has been used to show that the share of a deceased heir is distributed to the issue of that heir. So, for example, the share of a deceased child is distributed to his or her children (if any). Similarly, if a grandchild, brother, sister, aunt, or uncle would have been entitled to a share of the estate but that person has predeceased the decedent, his or her share is distributed to his or her children (if any).
  Also, the words "surviving" and "predeceased" are not used literally, because a person must survive the decedent by five days in order to inherit.
  The share of a surviving spouse can be forfeited if spouse had deserted the decedent, or had failed to support the decedent, for one year before death. Similarly, the share of a parent of a decedent under the age of 18 can be forfeited if the parent had deserted the minor, or had failed to support the decedent, for one year before death.
  An adopted person is considered to be the child of the adopting parents and not the natural parents. A child born out of wedlock is considered to be the child of the mother and is considered to be the child of the father only if the mother and father have married, the father "openly holds the child out to be his" and receives the child into his home or provides support for the child, or there is other "clear and convincing evidence" of paternity.
  These and other rules relating to intestacy can be found in Chapter 21 of Title 20 of the Pennsylvania Consolidated Statutes, 20 Pa.C.S. §§ 2101 et seq.
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  Who administers an estate when there is no will (or the executor named in the will is unable or unwilling to serve)?
  If there is no will, or there is a will but the executor (or executors) named in the will is unable or unwilling to serve, the Register of Wills is required to issue "letters of administration" to the following persons (and with the following priority):
  • To those who are entitled to the residuary estate under the will (if there is a will).
  • To the surviving spouse.
  • To those intestate heirs that the Register believes will best administer the estate.
  • To the creditors of the estate.
  • To other fit persons.
  • To a nominee of any of the preceding persons who renounces his or her right to administer the estate.
  • To a guardianship support agency serving as guardian of an incapacitated decedent.
  For information on filing a petition for letters of administration (and a form of renunciation), see my article "How to Probate a Will in Pennsylvania."
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  If I'm the beneficiary of an estate, how do I figure out how much inheritance tax I will have to pay?
  Pennsylvania law requires that the executor or administrator of an estate pay the inheritance tax on the property in the estate before the estate is distributed, so it is not necessary for the beneficiary of an estate to worry about inheritance tax returns or how much tax to pay. The executor or administrator will pay the tax and then distribute the estate after payment of the tax.
  However, the inheritance tax applies not only to estates to pass by will or intestacy, but also to other kinds of transfers that occur at death (or shortly before death), and sometimes the beneficiaries of those kinds of transfers are required to file inheritance tax returns and pay tax.
  The following are examples of transfers at death that are subject to inheritance tax and are not part of the estate controlled by the executor or administrator (and not governed by the decedent's will):
  • Any bank account or other property that is jointly owned with right of survivorship;
  • Any bank account or securities that are registered "in trust for" or "pay on death" to a named beneficiary;
  • Pension plans, profit-sharing plans, individual retirement accounts, and other forms of retirement benefits;
  • Revocable trusts;
  • Some kinds of irrevocable trusts if the decedent created the trust and retained rights to the income or powers over the principal of the trust;
  • Gifts in excess of $3,000 made within one year before death; and
  • Trusts that were not created by the decedent but were created by an earlier decedent, if inheritance tax on the principal of the trust was not paid at the death of the earlier decedent.
  Many wills direct the executor to pay all of the inheritance tax that is due, even the inheritance tax on the transfers outside of the will. Similarly, many revocable trusts will direct the trustee to pay the inheritance tax both on the property in the revocable trust but also on all other transfers of the decedent resulting in inheritance tax. Even if the trust was irrevocable and results in inheritance tax, the trustee is the one who is required to file the inheritance tax and pay the tax before distributing the trust. Only if the will or revocable trust does not direct the executor or trustee to pay all of the inheritance tax, or there is no will or trust, or there is not enough money or property in the estate or trust to pay all of the inheritance tax, is the beneficiary of the taxable transfer required to pay inheritance tax or file a return.
  So, if you are a beneficiary under a will, a beneficiary of the estate of a decedent who died without a will, or a beneficiary of a trust, you don't need to worry about filing an inheritance return or paying the inheritance tax. However, if you are receiving money or property upon the death of the decedent in one of the other ways described above (as a surviving joint owner, for example), you should contact the executor or administrator of the decedent's estate to see if you are required to file an inheritance tax return or pay any inheritance tax.
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  Do I have to pay Pennsylvania inheritance tax on what I receive from an estate outside Pennsylvania?
  No. The Pennsylvania inheritance tax only applies to transfers by a decedent who was domiciled (i.e., permanently residing) in Pennsylvania, or to real property in Pennsylvania owned by a non-resident decedent. It does not apply to the estate of a nondomiciliary decedent with no real property in Pennsylvania regardless of whether the beneficiary is a resident of Pennsylvania.
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  If my father (or mother) was the beneficiary under a will, but died before the person who wrote the will, do I have any interest under the will?
  It would depend on (a) the wording of the will and (b) the relationship between the decedent and your parent.
  Very often, a will includes conditions or directions about what should happen if a beneficiary should die before the testator (the person who made the will). For example, the will might expressly condition on survival, saying something like "to A, if she survives me" or "to B, if he survives me by thirty days." Or a will might include a specific direction like "to A or, if A should fail to survive me by thirty days, to A's children."
  If the will does not include any survival conditions or directions, then the general rule is that the beneficiary must outlive the testator, so the gift to the beneficiary "lapses" (is void) if the beneficiary dies before the testator. However, there is a statute in Pennsylvania that creates an exception to that general rule, but only for gifts by the testator to children (or other descendants), brothers or sisters, or nieces or nephews. Specifically, 20 Pa.C.S. section 2514(9) states:

  "(9) Lapsed and void devises and legacies; substitution of issue.--A devise or bequest to a child or other issue of the testator or to his brother or sister or to a child of his brother or sister whether designated by name or as one of a class shall not lapse if the beneficiary shall fail to sruvive the testator and shall leave issue surviving the testator but shall pass to such surviving issue who shall take per stirpes the share which their deceased ancestor whould have taken had he survived the testator: Provided, That such a devise or bequest to a brother or sister or to the child of a brother or sister shall lapse to the extent to which it will pass to the testator's spouse or issue as a part of the residuary estate or under the intestate laws."

  [Return to Table of Contents]
  How can I find the assets of the decedent?
  This question can come up for a number of different reasons.
  • The decedent might have kept very poor records, and so the executor or administrator doesn't know where to look for bank accounts, stocks, and other assets.
  • A beneficiary of the estate might not be sure whether the executor has accurately accounted for all of the assets and might want to double-check to make sure that nothing was invertently (or deliberately) left out.
  • A potential heir (or potential administrator) might want to know if there are any assets worth administering before bothering to file a petition for probate or letters of administration.
  • A potential heir might want to know if there are any assets
  Wait for things to arrive in the mail, unclaimed property, income tax returns, on-line real estate records, and credit reports.
  You will need to file a Form 4506 (http://www.irs.gov/pub/irs-pdf/f4506.pdf) with the Internal Revenue Service and include enough information to convince the IRS that you are an "heir at law" that has a "material interest" which will be "affected" by information contained in the return. (See IRC section 6103(e)(3).)
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  Other Questions

  How long can a man and woman live together before it is considered to be a "common law marriage" in Pennsylvania?
  Pennsylvania will no longer recognize a common law marriage entered into after January 1, 2005. Act 144 of 2004, amending 23 Pa.C.S. Section 1103.
  There is some uncertainty about the status of common law marriages entered into after September 17, 2003, which is the day on which the Pennsylvania Commonwealth Court purported to abolish common law marriage in Pennsylvania in its decision in PNC Bank Corporation v. Workers' Compensation Appeal Board (Stamos), 831 A.2d 1269 (Pa. Cmwlth. 2003), because it is not clear if other courts in Pennsylvania will follow that decision. See Bell v. Ferraro, 2004 PA Super 144, 849 A.2d 1233 (4/28/2004), and Stackhouse v. Stackhouse, 2004 PA Super 427, 862 A.2d 102 (11/10/2004).
  But even under Pennsylvania law before Act 144 and the Stamos decision, mere cohabitation is not enough to create a common law marriage, because a common law marriage is a contract that must ordinarily be established by testimony that the man and woman exchanged vows or other "verba in praesenti" expressing their intent to be married. See Staudenmayer v. Staudenmayer, 552 Pa. 253, 714 A.2d 1016 (1998). Only when neither party is available to testify can the court rely on cohabitation, reputation in the community, and other circumstantial evidence of marriage.
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  Evans Law Office
  Daniel B. Evans, Attorney at Law
  P.O. Box 27370
  Philadelphia, PA 19118
  Telephone: (866) 348-4250
  Email: dan@evans-legal.com