Disclaimers and renunciations are forms that can impact the administration of an estate. As is true with all legal paperwork, the best policy is to consult with an attorney before signing. If you elect not to consult with an attorney, at least be aware of the purpose of each form. A renunciation is used where an individual who has been named as an executor declines to serve in that capacity. You may name the individual who should serve in your place unless a contingent executor as already been named. In the case of an individual passing without a will, the next of kin would be first in line to serve as administrator of the estate. This individual can also sign a renunciation to waive their right to serve and allow someone else to serve. If there are issues with the person who stands to serve and a refusal to voluntary renounce their position, any other individuals with an interest in the estate can still petition the court to address their concerns.

A disclaimer is used to waive your right to receive an inheritance. Being named as a beneficiary or being an heir at law does not mean that you have to accept what is designated to go to you. It is possible to decline to receive your inheritance. The result of a disclaimer is that you are treated as if you predeceased the decedent. A will or the laws of intestacy would dictate how your share would be distributed among other beneficiaries. A valid disclaimer must be in writing. It must adequately identify the decedent and the asset or amount being disclaimed. It is possible to do a full disclaimer or a partial disclaimer where you only refuse certain assets or a certain amount. The disclaimer has to be served on the person handling the estate, such as the executor or administrator, and/or filed with the court. A disclaimer is irrevocable so be sure of your decision prior to executing the document.

Probate is the process wherein a decedent’s will is presented to the appropriate county office and the named executor is formally sworn in to handle their estate. Probate can also occur if a decedent passes without a will in which case their next of kin can apply to serve as the administrator of their estate. There are a number of steps to take and potential costs involved to complete administration of an estate once formally probated. Depending on the nature of assets and debts of the decedent, probate can sometimes be avoided. It is key to consult with an experienced estate attorney to see if this is possible.

A good estate plan can also eliminate the need for probate. An individual can make plans during their lifetime that may eliminate the need for any probate after their death. For example, they can funnel their assets into non-probate assets which include assets that have a beneficiary designation or payable on death designation. They may also consider titling assets with another individual as joint tenants with rights of survivorship. A trust may be a good fit such that assets are held in trust and not in the name of the individual, with instructions on how the trust should operate following the death of the person creating and funding the trust. Identifying a good estate plan is also very case specific and should be discussed with an experienced attorney as well as a financial planner and/or tax advisor.

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.

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.

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.

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.

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.

The initial step in the probate process is for the executor to produce the last will and testament of the decedent. The original copy of the will should be produced before the Register of Wills in the county where the decedent resided at the time of death. If the original cannot be located, it may be possible to move forward with a copy of the will. Prior to the court permitting the use of any copy, it must be satisfied that every attempt has been made to produce the original document.

An executor or other interested party can file a petition to compel production of the original will if they suspect another party is holding the original and will not voluntarily produce it. This petition should be filed with the Register of Wills. There is often a filing fee assessed at the time of filing which varies by county. Once filed, the petition must be served on the respondent or person(s) you suspect may have the original will. A certain time period would be established for the person to produce the will or appear in court for a hearing.

Marital property is defined as assets or debts acquired during the marriage. Marital property is subject to equitable distribution between the parties as part of a divorce action. There is a process to acquire information on potential marital property if you are unsure of what assets and debts would comprise marital property in your case. Discovery is the process of obtaining information from the opposing party in the course of a lawsuit. Discovery is allowed in any divorce case which includes a request for equitable distribution or alimony. The information requested in discovery must be relevant to the case. In divorce, the court gives much leeway as to what is relevant since the factors for equitable distribution allow for broadness. As a practical matter however, you will want to focus on assets and debts and their values as of date of marriage, date of separation and present as these are the important dates with respect to valuation.

Formal discovery methods include interrogatories, depositions, production requests, subpoenas to produce documents, and requests for admission. Interrogatories are a written set of questions for the other party to answer under oath. A production request identifies which documents a party is seeking. Subpoenas are utilized as well when it is necessary to get information directly from the source in the instance a party does not have it or will not cooperate in turning it over. Authorizations can be acquired in lieu of a subpoena if a party has not produced the documents themselves but is willing to cooperate in signing the authorization for the opposing party to do the legwork in obtaining the documentation. Due to the expense to the parties for formal discovery, parties often agree to exchange information informally. Consult with an experienced family law attorney to discuss the marital property in your case and the best way to obtain the necessary information to effectively handle your case.  By April M. Townsend

It is necessary to disclose joint property owned in part by the decedent at the time of his death. Often, joint accounts will provide for the surviving account owner to retain the account, however, these accounts must still be disclosed for purposes of assessing any applicable inheritance tax. Pennsylvania assesses an inheritance tax of 4.5% for lineal descendants, 12% for other relatives, and 15% for other third parties. There is no tax for assets passing to a spouse. An inheritance tax return should be filed with the Pennsylvania Department of Revenue within nine (9) months from the decedent’s death.

Schedule F of the inheritance tax return is for jointly-owned property with rights of survivorship. The list should include a complete description of the asset, date asset was placed into joint ownership, value at date of death and value of decedent’s taxable interest. The identity of the joint tenant(s) is also required along with address and relationship to decedent. Property held as tenants in common should not be included on Schedule F. Instead, those assets should be reported on the applicable schedule with the value of decedent’s interest only.  By April M. Townsend