WILLS AND PROBATE                                                                 


Provided here is a general statement of Pennsylvania law, it does not constitute legal advice. Consult an attorney directly for advice on your legal matter.


     A Will is the most basic instrument a person can use to bequeath property to her or his heirs. A properly drafted will can become a useful tool, but, like any other part of your estate plan, it requires special attention to individual circumstances. A will designates an Executor/Executrix, i.e. personal representative, who will assist in disbursing assets and paying taxes after probate, if probate is necessary.


     Probate is the legal process whereby a selected representative – either an Executor, if there is a will; or an Administrator, if there is no will –is granted the authority to manage the assets that are owned solely in Decedent’s name that do not transfer directly by (a) operation of law; or (b) beneficiary designation, and to prepare an inventory of the decedent’s property, resolving all debts and claims, and distribution of the decedent’s estate.  


     If you don’t have an estate plan or have failed to adequately fund your Trust completely,  your loved ones will be faced with probating some or all of your assets. The overall cost of probate will vary depending on the type and value of the property being probated. In general, the greater the value of the probated property, the more probate will cost. 


     Possibly, no probate is necessary because the decedent’s assets are held in non-probate form. In those cases where the surviving spouse is the sole beneficiary, there is no reason for probate. Also, any jointly held assets automatically become the surviving spouse’s sole property. The surviving spouse can collect the life insurance, IRAs, 401(k), and annuities payable to him/her without the expense of probate. But with other assets, unless the decedent specifically arranged their assets to avoid probate (see information on Trusts and Estate Planning), there is, with some exceptions, no way for the beneficiaries to obtain legal ownership without the process of probate.    

Pennsylvania’s Simplified Probate

     In Pennsylvania, the courts have adopted a simplified probate process for estates containing up to $50,000.00, not including the value of real estate. This provides the surviving spouse with immediate access to some cash and benefits. Contact a Pennsylvania attorney for more information.

 Why avoid passing assets through probate with effective tax planning?

     Reduces legal fees at the time the estate passes;

     Tax avoidance;

     Protects privacy, since a record of almost all the assets will become a matter of public record.

FYI, Tax rates

     In Pennsylvania, spouses pay no inheritance tax. For others, probated funds will be taxed at a rate of 4.5% for direct descendants (lineal heirs, i.e., grandparents, parents, children, grandchildren), 12% for sibling transfers and 15% for transfers to other heirs, except tax-exempt institutions.

For 2018, $5.6 million is the threshold under which one will not pay Federal Estate or Gift Tax. Spouses do not pay any federal estate tax.

     As a first step, talk to us about having a will drafted. During this meeting we can discuss if having a will without additional estate planning is the best financial option for you and what you want to achieve with your savings, real estate and other assets.  The Law Office of Lisa R. Schwartz, JD, LLM will assist you in examining these issues from both the estate planning and the estate administration perspectives.


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