Clearing the Misconceptions about Probate in Pennsylvania

It’s never easy when a loved one passes away. Not only does one have to deal with the emotional fallout from someone’s passing, but often, too, one must deal with the deceased’s legal matters. There are many myths and misconceptions about probate in Pennsylvania.

Let’s start with what I mean by “probate.” According to the most recent edition of Black’s Law Dictionary, probate is defined, in part, as “loosely, a personal representative’s actions in handling a decedent’s estate.” So, in plain English, when I say “probate,” I am referring to the process of estate administration generally. 

For most people, being the personal representative (such as an executor or administrator) of an estate is something they have never done before. The uncertainty of what lies ahead can compound the emotions one may already feel when a loved one passes away. The law can be sprawling and complex, which is why you should have an experienced attorney on your side to help you navigate the process from beginning to end. 

Below are some common misconceptions about probate in Pennsylvania.

Misconception #1: Probate is cost prohibitive.

In Pennsylvania, there are fees associated with the probate process. However, these fees often take the form of filing costs. While some counties may charge higher filing fees than others, one may be surprised to learn that the fees are often reasonable vis-à-vis the value of the deceased person’s estate. In fact, the probate fees often pale in comparison to the other debts a person leaves behind, such as medical bills and inheritance tax. Further, probate fees are usually paid out of a person’s estate. If a personal representative must advance the filing fee, the personal representative can be reimbursed from the estate.

Misconception #2: Probate takes years to complete.

The length of the probate process depends on the complexity of the estate. A typical estate can be wrapped up in approximately a year’s time. Some estates can be resolved in a shorter amount of time and of course, some estates will take longer. The estates that take longer are often tied up in lawsuits or there may be complicating factors, such as ownership of business assets, vast wealth, ownership of multiple properties or ownership of real estate in different states, unknown or uncooperative heirs, and so on. For estates without complicating factors, there is a clear process to follow to wrap up an estate in a reasonable amount of time.

Misconception #3: Every will needs to be probated.

Often people assume that if a person has a will, an estate must be opened when the person dies. This is not always the case. There are several instances where an executor named in a will need not probate the estate. For instance, a surviving spouse probably does not have to probate the deceased spouse’s estate if all assets are jointly owned. Further, assets jointly owned with others, such as adult children, may prevent the need to probate a person’s estate. However, one should be cautioned that owning assets jointly with a non-spouse can have other legal and tax consequences. In addition, even if a deceased person owned an asset individually, there are circumstances where the asset does not require probate, such as a bank account under a certain amount, or if the asset was a “non-probate asset” such as life insurance contracts, IRAs, 401ks, investment accounts, etc., provided these assets had beneficiary designations.

Misconception #4: I can avoid inheritance tax if I don’t probate an estate.

Pennsylvania is one of a handful of jurisdictions that has inheritance tax. Avoiding opening an estate to escape inheritance tax is not a good idea. In fact, the Pennsylvania Department of Revenue often finds out about assets and can ask you to pay the tax owed and perhaps even interest on the tax owed. Moreover, failing to open an estate can leave assets in legal limbo. For example, a house owned solely by a deceased person cannot be sold without opening an estate.

Every case is unique and whether an estate needs to be probated is a determination that can only be made at the time someone passes away. The law can be confusing, so it is best not to take on the probate process alone. Having an experienced attorney on your side will not only bring clarity to how you should navigate each step, but also allow you to remain present for the emotional process as well.