OWM Blog – What is Probate and How Do You Do It?

To launch our new blog, we decided to address a topic that tends to be misunderstood, that is, probate.  The word “probate” tends to invoke negative feelings. It is almost as if probate is a big conspiracy to get individuals to pay money to an attorney and to a court when it appears unnecessary. We can assure you that probate is not as big, bad, and scary as many think. And, as much as I enjoy a good conspiracy theory, “probate” is not part of a conspiracy to take your money. That being said, there are definitely tricks and tips that can help simplify your estate and cut down on estate administration expenses upon your passing. Planning ahead by making sure your estate plan is in order is the best way to save money for your heirs.

 

What is probate? What is an “intestate” estate? What is a “testate” estate?

The probate process in Pennsylvania varies based upon whether an individual dies having a Last Will and Testament or does not have such a document. If someone dies having executed a valid Will that was in existence at the time of their death, they are said to have died “testate.” The probate estate is distributed according to the Will.  On the other hand, if someone dies without a Will, they are  said to have died “intestate.” The probate estate is distributed to the heirs according to Pennsylvania’s intestacy laws. Additionally, not all estates require probate. Whether an estate needs to be probated depends on the assets that the decedent owned at the time of death and how they are titled.

How to probate?

In Pennsylvania, the probate process is initiated by a petition being filed with the local Register of Wills in the County where the individual last resided. The petition requests Letters Testamentary be issued, if the individual had a Will, and that an Executor be appointed. Where the individual did not have a Will, the petition requests that Letters of Administration be issued and an Administrator appointed. If the decedent had a Will, the original Will must be submitted at the time the petition is filed. If the decedent did not have a Will, the petition must contain information identifying the heirs of the decedent (next-of-kin). Unlike some states, Pennsylvania does not require a formal court hearing before a judge to probate a Will.

Once the petition for probate is filed, and the Register of Wills has issued Letters Testamentary or Letters of Administration, the personal representative (Executor or Administrator) has many duties to fulfill. It is important for the personal representative to faithfully carry out these duties, as failure to do so may result in personal liability of the personal representative.  The duties of the personal representative include, but are not limited to the following:

1. Gather the assets.
2. Advertise the estate in accordance with Pennsylvania law;
3. Give notice to beneficiaries or the heirs;
4. Obtain an EIN for the estate;
5. Open estate checking account;
6. Confirm and pay the debts of the decedent – it is very important for the personal representative to identify and pay the debts of the decedent as part of the administration of the estate.  One instance where the personal representative may have personal liability would be if funds are distributed to heirs in an estate prior to the payment of all creditors.  If there are insufficient assets available to pay the creditors once the distribution has been made, the personal representative may be personally liable to pay an amount equal to the amount disbursed by the personal representative.
7. Liquidate and transfer the estate assets;
8. File Tax returns, including the Pennsylvania Inheritance Tax Return, with payment of tax;
9. Prepare a First and Final Account and then distribute the Estate in accordance with decedent’s will or if no will, in accordance with the intestacy law of Pennsylvania.

I’ve been named executor.  Do I still need a probate attorney?

Although it is possible to probate and administer an estate on your own, through experience our office has found that engaging a probate attorney that practices in the County where the decedent’s estate will be administered can actually save in costs and expedite the process.  Additionally, because of the personal liability as well as the many duties of a personal representative, it is important that the personal representative seek the advice of a knowledgeable estate, trust and probate attorney that can ensure that the personal representative is fulfilling their legal responsibilities and therefore avoiding personal liability. OWM Law has probate attorneys that practice in all the surrounding counties including Montgomery County, Chester County, and Berks County.

If you’re searching for probate attorneys in Montgomery County, Chester County, Berks County or other surrounding counties, contact O’Donnell, Weiss & Mattei, P.C. We have the experience and expertise needed to simplify the probate process and guide you through the estate administration process.

Contact us today – or visit us at our offices in Pottstown or Phoenixville.

This article was written by: Rebecca A. Hobbs