Executor/Administrator/Personal Representative - Who is responsible for the Estate?
An estate is handled by an estate executor or administrator.
When a decedent passes without a will, his presumptive heirs would be next-in-line to be named executors. Presumptive heirs would be 1) spouse and then 2) adult children. If there is more than one adult child, there are multiple options, including having some of the adult children to sign paperwork to renounce any interest they may have in being an administrator of the will, otherwise all adult children must agree with the administration of the estate. Whether it is one or all children, they will need to open an estate in the Courthouse to be named the administrator.
An executor and administrator of an estate have numerous responsibilites and some additional risks that should be understood before accepting these responsibilities.
Presumptive Heirs - Who receives inheritance when there is no will?
The presumptive heirs under Pennsylvania Intestacy Laws are as follows, in the order they appear :
1. Spouse of the decedent.
2. Children of the decedent.
3. Parents of the decedent.
3. Brother, Sister, or their Children (the decedent's siblings and their children).
4. Grandparents of the decedent.
5. Uncles, Aunts of the decedent, and their Children and Grandchildren (decedent's cousins) .
6. Commonwealth of Pennsylvania.
Probate? - What passes through the Estate?
Generally, a person has four types of assets, namely:
1. Property with a named beneficiary (i.e. insurance proceeds, retirement accounts, investments). These items pass outside a will, as these are not probate assets.
2. Property jointly held with another party (i.e. a married couple owning a house). These items pass to the surviving party and do not pass through the will as these are not probate assets.
3. Trusts. Any property in a trust passes through trust administration and to the named beneficiaries of the trust. A trust is subject to trust administration, but not probate of a will.
4. Property individually held by a party: This property is controlled by the will of the decedent (or in this instance, through intestacy).
Under the Pennsylvania Small Estates Statute, 20 Pa.C.S. 3101 et. seq, the legislature has detailed how a small estate may pass to intended beneficiaries without opening an estate in the Courthouse.
This statute includes any salary or benefits owed to the decedent at the time of death, small bank accounts, patient accounts, and life insurance payable to the estate.
Do I need a will? Why?
When a person dies without a Will, the property of the deceased is distributed according to a formula that is fixed by state law. The problem is that you might not like the formula created in this "intestacy law". I would recommend you speak to an elder law attorney in your area to review your own will before it is too late.
What do I need to know to draft a will?
Q: Who do I want to manage my estate when I die? This is the person who will be named as executor in your Will. You also need to think of the person you want to name as the backup.
Q: who do you want to inherit your assets when you die? You may have certain personal items you want to go to certain people. You may have dollar amounts you want to give to someone. Or finally, you may wish to leave the rest of your estate to a certain person or group of persons.
Q: do you have beneficiaries who are minors? If you have young children or grandchildren, then you may want to create a trust in your will for the moneys and properties that will pass to them.
Q: are there other important players to name in your Will? If you have young children, then you will want to name guardians to take custody of your children. If you have a trust, then you will need to name trustees. Always remember to name backups to any of the persons named in any positions or capacities.
Legal disclaimer: Please note: Robert Cronin is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Robert Cronin and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.
Additional resources provided by the author
I would recommend that you speak to an estate administration attorney in your area to understand how to administor an Intestate Estate.