What Is Probate? When Is Probate Necessary In PA?

What Is Probate?

Probate is initiated by the court appointment of a Personal Representative to act on behalf of a decedent’s estate. Once formally appointed, the Personal Representative will be required to follow the legal requirements laid out for him or her. The legal requirements will include, among other things, notices to beneficiaries, court status reports, advertisement of the estate, payment of expenses of the estate, payments of the debts of the decedent, and proper distribution of the decedent’s estate assets.  The person initiating probate will have significant fiduciary responsibility and possible personal liability.  Great caution should be taken by the estate representative to protect himself/herself and all of the estate beneficiaries.  Much of this can be avoided if Probate is not required.

Determining the Necessity for Probate In Pennsylvania

One of the first jobs of the decedent’s family is to search for his or her will and related documents such as trusts, records of safe deposit boxes and finances.  Banks in Pennsylvania will recognize the right of the family, next-of-kin, or executor, if known, to search the contents of the decedent’s safe deposit box for wills, codicils, testamentary memoranda, trusts, life insurance policies and veterans benefits and cemetery deeds.

Once the decedent’s last will has been located or it has been determined that no will exists, it is important to review all of the decedent’s asset information before proceeding to probate.  Depending on how the decedent’s assets were titled or how his or her account beneficiary designations were completed, it may or may not be necessary to initiate probate.  Probate is not an automatic requirement just because someone has passed away.  If probate is not required, you should not initiate the process by having an Executor or Administrator appointed at the County courthouse.  An Executor or Administrator must complete a comprehensive list of legal tasks once formally appointed at the Register of Wills.  If this can be avoided, you will likely save significant time and money.

If the decedent owned assets in his or her name alone that did not have a designated beneficiary, probate is likely to be required in order for a court appointed Personal Representative of the estate to be able to access those assets.  Once formally appointed, the Personal Representative will have access to all probate assets of the decedent.  he or she will be able to close old accounts and open account in the name of the estate.

If the decedent owned all of his or her assets jointly with other individuals or had accounts with designated beneficiaries, then probate may not be necessary and the Court administration process described below can be avoided.  Some of the most common non-probate assets include, but are not limited to, life insurance, IRA accounts, 401K accounts and annuities.  These assets classes frequently have beneficiary designations which cause assets to transfer automatically to named beneficiaries.  It is important to note that any individually owned assets that do not have an affirmative beneficiary designation will be paid to the decedent’s estate.  For example, a life insurance policy that is silent as to the beneficiary will be paid to the decedent’s estate.  Likewise, a life insurance policy designated to go to a predeceased beneficiary will also be paid to the decedent’s estate.  These various issues can be quite complex and you have to make sure that you examine every angle before jumping into the probate process.

If you initiate probate at the court house and it is later determined that probate would not have been required, it is too late and you must follow through on the process. So, be careful and review the decedent’s asset list thoroughly.

For assistance determining if probate is required in Pennsylvania or for assistance handling an estate administration in Pennsylvania, please contact Douglas L. Kaune, esquire at 610 933 8069 or email him at dkaune@utbf.com. Doug’s entire practice is focused on representation of Executors and Administrators, elder law, Medicaid Application, estate planning, trust planning, estate administration and protection of clients’ assets from nursing home spending and estate and inheritance taxation. Unruh, Turner, Burke & Frees, P.C. is a full service law firm which has three convenient office locations in Phoenixville, West Chester and Paoli, Pennsylvania. The firm primarily services clients in Chester, Montgomery, Delaware, Philadelphia, Bucks and Berks Counties, but can represent clients throughout Pennsylvania.