Pennsylvania Wills

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Making a Pennsylvania Will

Pennsylvania Wills are governed by the consolidated statute Title 20 decedents, estates and fiduciaries.

Requirements

The person creating a Will is called the ‘testator’. A Pennsylvania Willcan only be made by persons of 18 years or more who are of sound mind. s2501 To make a legal Will in Pennsylvania, the instrument must be:

  • In writing;

 

  • Signed by the testator at the end of the Will. s2502

 

 

  • In the presence of two witnesses (who also sign their names to the Will in the testator’s presence and in the presence of each other).

 

Inability to sign

If the testator is unable to sign his/her name, then:

  • The signature may be in the form of a mark (made before or after the testator’s name is subscribed to the Will). The mark needs to be witnessed as detailed above.

 

  • If the testator cannot make his/her mark to the Will, then another person may subscribe the testator’s name to a Pennsylvania Last Will and Testament. This must be done at the testator’s express direction and in his/her presence. The testator must also declare the instrument to be his/her Last Will in the presence of two witnesses who sign their names to the Will in the testator’s presence. s2502

 

Nuncupative Wills

Some states accept Wills that are made verbally. Pennsylvania no longer accepts a nuncupative Will to be valid. The formal execution requirements must be complied with in order for a Pennsylvania Will to be accepted.

Revoking a Pennsylvania Last Will

Revoke means to cancel. There are strict requirements which must be followed in order to properly revoke a Pennsylvania Last Will and Testament. The statute accepts revocation by:

  • Making a new Will or codicil which revokes the former in writing;

 

  • Some other writing declaring the revocation (executed with the same formalities as a Will);

 

 

  • Burning, tearing, cancelling, obliterating, or destroying the Will.

 

If the Pennsylvania Will is not cancelled properly, this may cause problems with probate. To avoid confusion, lawyers advise to use both acts of revocation (physical destruction and express revocation in writing). If the testator is unable to physically destroy a Pennsylvania Will, then he/she may direct some other person to do so in his presence. The testator’s direction to destroy the document must be proved by the oaths or affirmations of two competent witnesses. S2505

Does divorce cancel the Will?

No. It only cancels provisions in favor of or relating to your former spouse. You should create a new Will after your divorce and revoke all previous Wills. This makes for easier interpretation and also allows you to revise your situation and testamentary wishes. s2507(2)

How does marriage affect my Pennsylvania Will

Marriage is a life changing event with ensuing legal implications. Nuptials do not cancel any Pennsylvania Willsyou made prior to marriage. However, if you die without changing that Will, your spouse is entitled to the greater of:

  • The amount you left him/her in the Will;

 

  • The portion your spouse would receive under the laws of intestacy (as though you died without a Will).

 

This is unless you made the Will in contemplation of your marriage (which most people do not). s2507(3) To ensure your intentions are carried out after your death, make sure you write a Will after marriage and revoke any prior Wills.

Killing the testator

If a beneficiary is found guilty of slaying (killing) the testator, then he/she cannot receive any benefit under the Pennsylvania Last Will and Testament. s2507(5)

Disinheriting a Spouse or Child from a Will

You may use your Pennsylvania Will to exclude your spouse or children from inheriting your estate. However, you need to be aware that, like most states, Pennsylvania provides minimum statutory entitlements for family members. Before attempting to exclude a spouse or child from your Will, you should seek guidance from a qualified attorney. Only an attorney can properly advise the relevant clause to be written into your Will together with any other action you may need to take. The statutory minimum entitlements are:

Spousal Rights

  • An elective share of one third of your estate. s2203

 

  • A family exemption to the value of $3,500. s3121

 

Children

  • A right to the family exemption but only if there is no spouse or your spouse forfeits the right. This exemption is only payable to children that are members of your same household. s3121

As you can see, children have fewer rights than your spouse. However, if you make a Pennsylvania Will and subsequently have a child (by birth or adoption) do not rely on that Will to exclude the child from your estate. If the Will does not provide for the child or intentionally exclude them, then the child is entitled to a portion of your estate. The portion is based on the Pennsylvania intestacy rules and the amount passing to any surviving spouse. The child’s share is most likely to be larger than if you made a new Last Will excluding the child with attorney advice.

Probating a Pennsylvania Will

Place of Probate

A Pennsylvania Last Will and Testament must be submitted for probate before the register of the county where the deceased had his last family or principal residence. If the decedent did not have a domicile in the Commonwealth, the Last Will may be probated in any county where his/her property is located. S3131

Production of the Will

Any interested party may request the court to issue a citation to the person alleged to have possession or control of a Pennsylvania Will of a deceased testator. The citation requires the person to show cause as to why the Will should not be deposited with the register. If the person cannot show good cause, the register can order the Will to be deposited with the court. S3137

Petition for Probate

The petition for probate and grant of letters must be filed with the Register of Wills. This form may be used to probate a Pennsylvania Will and to appoint a personal representative. It may also be used to appoint an administrator where the decedent left no legal Will.

Proving the Will

Before probate is granted, validity of the Will needs to be proved. This is easy if the Will is self-proved and no person objects. If a Pennsylvania Last Will & Testament is not self-proved then the subscribing witnesses may need to provide evidence by oath or affirmation s3132. This evidence may be taken by the register of any county of the Commonwealth or before an officer authorized to administer oaths unless there is a contest with respect to the validity of the Will. s3154

Time Limit

The statute allows a Pennsylvania Will to be offered for probate at any time. s3133(a) However, once 21 years have elapsed from the date of the decedent’s death, letters testamentary or of administration can only be granted with the court’s permission (upon showing cause). s3152

Personal Representative

If the Last Will and Testament designated an executor, then letters testamentary are granted to that person unless he/she is unable or unwilling to act. s3155(a) If there is no executor designated in the Pennsylvania Will, then the court appoints an administrator and grants that person letters of administration. The order of priority for persons entitled to this role:

  • Beneficiaries named in the Will to receive the residuary estate;

 

  • Surviving spouse;

 

 

  • Persons entitled under the laws of intestacy;

 

 

  • Creditors of the decedent;

 

 

  • Other persons the court deems fit. S3155

 

Small Estates

If the decedent left $25,000 or less in value of personal property (claimed as the family exemption) then it is considered to be a small estate. In such cases, any party in interest may petition the Orphans’ court division for a decree of distribution. The decree allows distribution of the personal property without administration to the parties entitled in accordance with the Pennsylvania Will or intestacy rules. The small estate petition may be filed regardless of whether the decedent left real estate of any value. s3102

Pennsylvania Estate Tax

Where the decedent was a resident of Pennsylvania, the personal representative needs to file an inheritance tax return (REV-1500). The return must be filed with the department of revenue within 9 months of the deceased’s death. A penalty of 25% of the tax or $1,000 (whichever is less) may be applied for failing to file. Even if you don’t have a Pennsylvania Will, your estate is still liable for the state inheritance tax (calculated on the amount left to your heirs under intestacy laws).

Challenging a Pennsylvania Will

Not satisfied with a Will? If you object to the validity of a Pennsylvania Last Will and Testament, then you need to contest. Contesting the Will is a form of litigation adjudicated in the Orphan’s Court Division of the Court of Common Pleas.

Grounds

Objecting to a Will refers to challenging its validity. A Will cannot be challenged simply because you believe you should have received a larger share. Valid grounds for contesting a Pennsylvania Will include:

  • Execution requirements not being complied with;

 

  • The testator was induced by duress or undue influence;

 

 

  • Fraud or forgery.

 

Requirements for Contesting

Any appeal from the decree of probate needs to be filed within one year of the decree. However, if an interested party requests, the court may limit the time for appeal to three months. s908(a) Contesting a Will is expensive. In addition to your own attorney fees, the court may require a bond as surety for the payment of any costs or charges that may be decreed against you. If the bond is not paid within 10 days, the appeal is considered abandoned. S908(b)

Presumption of Validity

If due execution of the Pennsylvania Will is proved as required by the statute (see probate above), then there is a presumption that the Will is valid. If the person challenging the Will cannot overcome this presumption then the court may enter a nonsuit against the contestant. s779

Contest Clause

A Will may contain a clause penalizing any person who contests the Will. However, the Pennsylvania statute states that such a clause is unenforceable against any interested person who issues proceedings with probable cause. S2521

Challenging a Small Estate

Any interested party may file a petition to revoke the decree of distribution within one year of the decree being made. If the court finds that an improper distribution was ordered, it will revoke the decree and direct restitution as required by equity and justice. s3102

Dying without a Pennsylvania Will

What happens if you die without a Pennsylvania Will? See how the statute is interpreted, practical examples and the actual wording of the legislation. Like many other states, Pennsylvania firstly provides for the surviving spouse.

Married Persons

If you die without making a Pennsylvania Last Will and Testament the portion your spouse receives depends on your other surviving family members as follows:

  • no surviving issue (children, grandchildren) or parents – your whole estate;
  • no surviving issue but a surviving parent or parents – the first $30,000 plus ½ of the balance;
  • surviving issue (all of whom are also your spouse’s issue) – the first $30,000 plus ½ of the balance;
  • surviving issue (one or more of whom are not your spouse’s issue) – ½ of your intestate estate.

The balance is distributed to the heirs mentioned in the ‘not married or widowed’ section below.

Not Married or Widowed

Any share not passing to a spouse (or the whole share if there is no spouse), is distributed in the following order of priority:

  1. your issue; which means your children take an equal share. The children of any predeceased child (your grandchildren) take equally the share their parent would have taken ;
  2. your parents or the survivor of them;
  3. your parent’s issue (your brothers and sisters or their descendants);
  4. ½ to your maternal grandparents or grandparent or their issue if none survive. ½ to your paternal family in the same manner. If no family exists on one side, that half share passes to the other paternal or maternal side.
  5. your uncles, aunts or their children and grandchildren if they predecease. Children of your uncles or aunt’s grandchildren do not inherit.
  6. If none of the above apply, the Commonwealth of Pennsylvania.

The intestate succession laws may be amended or avoided by making a Pennsylvania Last Will. This means you can expressly exclude an heir or class of heirs from inheriting under the laws of intestacy by writing the exclusion into your Will. s2101 Wife died without a Pennsylvania Will. How much to husband & children? Maria passed away without a Will. She had two children with her husband Scott. Her estate is worth $300,000. Who gets what? Scott: $165,000, Scott & Maria’s Children: $67,500 each. Intestate distribution to wife, children and stepchild when husband dies without a Will: Dale died leaving an estate of $300,000. He had no will, 2 children to his wife Stacy and a child from a former partner. Who gets what? Stacy: $150,000, Dale & Stacy’s 2 children: $50,000 each Dale’s child from former partner: $50,000. Wife died intestate. Portion inherited by husband and wife’s father: Renee died leaving $300,000 and no will. She left behind a husband, Mike, no children and her father. Who gets what? Mike: $165,000, Renee’s father: $135,000. Widowed grandfather died without a Pennsylvania Will. Intestate share of children & grandchildren: Kyle died without a will. His estate is worth $300,000. He had 3 children with his wife (predeceased). Two of their children have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. Who gets what? Surviving child: $100,000 (1/3), Granddaughter (single child): $100,000 (1/3), Grandsons (brothers): $50,000 each (share 1/3).

Pennsylvania Will Forms:

Writing a Will is the most important step you can take to manage what happens after your death. This document is best prepared by an attorney. If you wish to write a Will yourself, utilise the myriad of tools available on the internet including Will forms, Will templates and even Will software.

Note: Making a Will can be difficult. Before making a Pennsylvania Last Will and Testament, we you should read information about:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample Will forms available as free downloads (printable PDF documents) to help create a Will:

Pennsylvania Will Form: Married with adult children

Pennsylvania Will Form: Married with adult and/or minor children, includes a trust for minor children

Pennsylvania Will Form: Married with no children

Pennsylvania Will Form: Single with adult children

Pennsylvania Will Form: Single with adult and/or minor children, includes a trust for minor children

Pennsylvania Will Form: Single with no children

Self-Prove a Pennsylvania Will

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