What to do if loved one dies without a will?

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If a loved one has passed away without a will, the laws of intestacy will govern how their estate is handled. The closest kin can apply to the Register of Wills to be designated as the administrator of the estate. Other kin of the same degree may need to renounce their right to serve. The administrator will be granted a certificate of letters of administration as proof of their authority to handle the estate. The administrator then has the responsibility for identifying all the assets and debts as well as beneficiaries and their contact information and maintaining the estate until final distribution. There are certain forms to be filed with the court as well as tax returns and advertisement of the estate.

With respect to final distribution, if the decedent was married and does not have any children or surviving parents, the entire estate goes to their surviving spouse. If there were parents, the first $30,000 goes to the surviving spouse as well as half of the remainder of the estate. If there are children of the marriage, the first $30,000 goes to the surviving spouse as well as half of the remainder of the estate also. If there are children of the decedent only, the surviving spouse gets half of the estate. The remaining half of the estate, or in the event the decedent is not married, the entire estate, shall pass in the following order: (1) to the decedent’s children; (2) to the decedent’s parents; (3) to the decedent’s siblings or their children; (4) to the decedent’s grandparents; (5) to the decedent’s aunts and uncles and their children and grandchildren. If there are multiple persons in a category, they will each receive equal shares such that a decedent with three children would have the estate separated into thirds.

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What to do if loved one dies with a will?

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After a loved one has passed, one of the first steps to be taken is to determine if they have a will. If so, you will want to locate the original will and make sure it has been properly signed. Ideally, the will has a self-proving affidavit so that the witnesses to the will do not need to be present when the will goes to probate. If there is not a self-proving affidavit, someone with knowledge of the deceased’s signature would need to verify the signature. In some counties this must be done in person. The named executor will need to go to the Register of Wills with the original will, photo identification, an estimate of the assets of the estate and some method of payment to open the estate.

The Register of Wills will give the executor certificates of letters testamentary. This document authorizes the executor to handle the decedent’s estate. The executor will likely need to appear in person at the appropriate county office throughout the probate process. For this reason, it makes sense to name an executor that lives in the area. You should also be careful if selecting co-executors as they need to agree on how to proceed. The executor should identify all the assets and debts as well as beneficiaries and their contact information. Real property should be secured and maintained, including keeping up with any mortgage, homeowners insurance and taxes in the interim. The executor is also responsible for paying necessary debts, advertising for the estate, filing of necessary tax returns, and final distribution of estate. You should work with an estate attorney to make sure all requirements are met.

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What to do after adoption

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After your adoption hearing, you can take steps to update your child’s name and/or birth certificate, where necessary. To obtain a new birth certificate you will need to submit a request through Vital Records in the state that issued the initial birth certificate. If outside of Pennsylvania, check with the local office regarding their specific requirements. For Pennsylvania birth certificates, a Certificate of Adoption is forwarded by the court to Vital Records to alert them the adoption was finalized. You would then contact Vital Records with a request for a new birth certificate and submit the applicable fee. Pennsylvania presently charges $20 for a new birth certificate, unless you are a military member, in which case the fee can be waived. The adoptive parents’ names and child’s name after adoption should be included in the application for birth certificate. The completed application, ID and payment would then go to Vital Records.

Processing times for receipt of the new birth certificate vary. The average time for adoptions is currently five (5) weeks. These steps are for a child born in Pennsylvania. For additional information on requesting a new birth certificate through Pennsylvania visit: https://www.health.pa.gov/topics/certificates/Pages/Birth-Certificates.aspx

After receiving the new birth certificate and depending on the age of the child, you may also need to update records at school, the doctor’s office, Social Security, etc. You may need to present your certified Decree of Adoption from the court in addition to new birth certificate to verify legal name change. Additional certified copies of your adoption decree can be requested through the court at a nominal cost.

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What assets will pass through the will?

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Not every asset owned by a party at the time of death will pass under the direction of the will or through the laws of intestacy. It is important to understand the difference in how assets will pass to ensure proper estate planning. Probate assets, those passing through the will, are those for which there is no pre-existing designation as to who should get the asset. Examples of typical assets that will be subject to probate include individually owned bank accounts, cars, personal property, business interest, real property held as tenants in common, cash, and life insurance with no beneficiary. These types of assets should be distinguished from any account with a beneficiary designation, non-probate assets, as those accounts will pass to the beneficiary.

You should also identify which accounts you hold jointly with other individuals. Generally, joint accounts will usually go to the other party whose name is on the account by operation of law.

Assets that are put into joint names within a year of date of death can still be subject to inheritance tax on the full amount of the account though ultimately a non-probate asset. If assets have been put into joint names over a year from date of death then only 50% of the account would be taxed. Ideally, you should plan for how any applicable inheritance taxes on probate assets will be apportioned.

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Transfer of Real Property

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A deed is the legal document to record an interest in real property. This is distinguishable from a mortgage which directs who is financially responsible for payments on a loan secured by real property. It is possible to be on a deed or a mortgage but not both. To the extent you are transferring ownership of property, a new deed is needed to reflect the change. The deed will specify the grantor(s), the person(s) relinquishing ownership of the real property, as well as the grantee(s), the person(s) who are acquiring ownership of the real property. The deed also includes a very detailed description of the real property at issue. These descriptions are based on land records from surveys of the property or construction plans.

Your county office maintains records for all the deeds within their jurisdiction. A new deed should be recorded with the office to replace prior deed. It is common for the deed itself in to include a brief summary of the recent line of ownership as well as where prior deeds were recorded in terms of book and page number. There is usually a cost assessed to record a new deed set by the county based on the number of pages of the document and number of signatures. There may also be real estate transfer tax due depending on the relationship of the grantor and grantee and total fair market value of the property being transferred.

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Tips for Executors

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An executor is the person designated to be responsible for the administration of a person’s estate. As an executor, you are required to act in a fiduciary capacity and carry out the decedent’s wishes as stated in their will. To start, the executor will need to take the will to the Register of Wills to open the estate and be formally recognized as the party authorized to handle the estate. From there, the executor will need to identify all the assets and debts the decedent had at the time of death. An inventory will need to be filed with the court. It is really useful to have a list of institutions where assets are held as well as user names and passwords now that so much business is conducted electronically as opposed to on paper.

The executor should also notify social security, employer(s), banks, insurance companies, retirement plans, post office, etc. regarding the death of the decedent. The executor is responsible for safekeeping and/or maintenance of the estate until the time of distribution. The executor should review the will to identify all possible beneficiaries as they will need to be notified. The executor will usually need to open an estate bank account to consolidate assets and be able to pay necessary bills and taxes. The last income tax return for the decedent needs to be filed as well as an inheritance tax return. The executor must keep detailed records of all transactions that occur as an accounting is usually part of the final process of distributing and closing the estate. Executors may receive financial compensation for their services. An executor may also elect to retain an attorney to ensure the proper administration of the state in lieu of undertaking the responsibility on their own.

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Timeline for Kinship Adoption

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The rights of the other biological parent will need to be terminated in connection with any adoption. Their parental rights can be terminated voluntarily or involuntarily. With voluntary termination the other natural parent will sign a consent to the adoption which is subsequently attached to the Petition for Adoption. There must be at least thirty (30) days between when the consent is signed and when adoption petition is filed with the court since there is a thirty (30) day revocation period. With involuntary termination, you will plead the applicable grounds for involuntary termination within your adoption petition. A filing fee is payable to the county at the time you file your petition for adoption. After filing the Petition, you will receive notice of when you are scheduled for your hearing. You will need to notify any party that is required to receive notice of the hearing per the adoption statutes in advance of the hearing.

With a kinship adoption the prospective parents will need to have three background checks completed prior to filing an adoption petition. Presently, the required background checks for Pennsylvania include (1) Child Abuse History Clearance; (2) PA State Police Criminal Record Check; and (3) FBI Criminal Background Check through the Department of Welfare. The results of these background checks should be attached to the adoption petition. A home study is not required. A hearing will be scheduled by the court within a few months from filing the petition. If heading straight to adoption hearing because natural parents consent to adoption the total process can be completed in a few months. If an involuntary termination hearing is required before the adoption hearing the process can take twice as long.

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Tax Returns for Decedents

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In Pennsylvania, two tax returns are likely needed following the death of an individual. First, the person’s executor or closest kin should make sure their final income tax return is completed. If the party was married at the time of death and previously filed taxes jointly with their spouse, their spouse can file on their behalf and include their income for the tax year in which they passed. If the party was not married, the executor or administrator should make sure a final individual income tax return is filed.

An inheritance tax return will also be needed to the extent the party left assets and/or debts. The inheritance tax return should be filed within a year of death. There is a discount if filed within nine months of death. There is no inheritance tax for assets passing between spouses. There is a 4.5% tax for assets passing to children or other lineal descendants. There is a 12% tax for assets passing to other relatives. There is a 15% tax for assets passing to non-relatives. It is common for a party’s will to provide that these taxes be paid out of their estate prior to distribution of the net estate. Alternatively, each beneficiary would be liable to pay their share of tax based on the assets they receive from the estate.

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Support Between Spouses

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Married persons are liable for the support of each other according to their respective abilities to provide support as provided by law. Similar to child support, spousal support will be calculated based on a statewide guideline. Without children, spousal support is calculated by multiplying the paying party’s income by 33% and the receiving party’s income by 40%. The difference of these figures would be the support award. If there is also a child support order, spousal support should be calculated first. Multiply the paying party’s income by 25% and the receiving party’s income by 30% and then calculate the difference. Child support is then calculated with the spousal support award being deducted from the party paying spousal support and added to the party receiving spousal support.

There are some defenses to paying support to your spouse. One exception to the duty to pay spousal support is where the spouse seeking support has engaged in conduct that would constitute grounds for a fault-based divorce such as adultery. It is up to the spouse who is objecting to a spousal support award to prove a fault ground for divorce by clear and convincing evidence. Alimony pendente lite (APL), a form of spousal support payable while a divorce is pending, does not allow the same defenses. The purpose of APL is to allow the income dependent spouse to participate in the divorce action and fault is not a factor. Alimony, spousal support paid after entry of the divorce decree, can be terminated by proving the spouse receiving alimony is living with a new lover or is remarried. Consult with one of our experienced attorneys to understand the different types of support that may be awarded between spouses.

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Authority for Estate Administration

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The executor or administrator is the party tasked with handling the decedent’s estate. An executor is named in the decedent’s will. An administrator is appointed when the decedent dies without a will and is often the closet kin of the decedent. The executor or administrator will be sworn in as the person responsible for handling the administration of the estate. At that time, the Register of the Wills can provide certification regarding the executor or administrator’s authority to handle the affairs of the decedent.

Letters Testamentary are granted to executors named through a will. Letters of Administration are granted to the appointed administrator where there is no will. In either scenario, the executor or administrator may request short certificates with the seal of the court to confirm their authority to manage the estate. These short certificates are required by financial institutions to handle assets, transfer funds to estate account, close out accounts, etc. There is a cost per short certificate. It is a good idea to get several copies of the short certificate at the time you are sworn in. Additional short certificates can be acquired from the Register of Wills at a later date if necessary.

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