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Wills: An Overview

What is a Will?

A Will is a written document signed by a person at least eighteen (18) years of age and of sound mind wherein that person directs the distribution of property at death. The Will may also appoint guardians of the estates of minors who receive property under the Will.


Should everyone have a Will?

Yes. Generally, for young married persons - to dispose of their property and to appoint proper persons as the guardians of the persons and estates of their minor children; for the middle-aged - to provide a plan of distribution for their dependents by benefiting those with the greatest need and conserving their property for their spouse and/or children; and, for the elderly - to make distributions which benefit spouse, children, grandchild and charities.


What occurs when there is no Will?

Pennsylvania law applies to the appointment of personal representative and the distribution of property by designating the heirs and their share of the decedent's estate. Guardians of the person and the property of minors must be appointed by the Orphans' Court.


When is a Will effective?

A Will is effective at the death of the testator. It may be revoked at any time prior to death by a Will or Codicil later in date or by destruction of the Will itself by the testator. The Will, which the Register may allow to Probate, is the last Will signed by the testator.


Does the Law require the signature of the Testator to be witnessed at the time of signing?

No. The law does not require eyewitnesses (subscribing witnesses) to the signature of the testator in order for the Will to be valid. However, it is the custom to have two (2) subscribing witnesses present since at the time of probate, two (2) witnesses, subscribing or non-subscribing, must appear and identify under oath the signature of the decedent on the Will. Wills can be made self-proven if proper acknowledgements and affidavits are signed by the testator and witnesses at the time of execution. Self-proving Wills eliminate the need for the witnesses appearing at the Register's office.


What property passes by Will?

Property owned solely in the name of the decedent passes by Will. Property owned by the entireties (husband and wife), jointly or in the trust does not pass by Will. Advice as to what specific property does or does not pass by Will and what property is or is not subject to Pennsylvania Inheritance Taxes should be obtained from your attorney.


Is their any limitation on the validity of a Will?

No. A Will does not 'expire' or become invalid because of the passage of time. It becomes operative when a person dies. A person may make many Wills in their lifetime. The last Will of the person before death is the valid one.


What is the Law regarding Living Will/Advance Directive or Healthcare Power of Attorney in Pennsylvania?

If you wish to execute or make a living will:

You must be at least 18 years old and be of sound mind.
You must sign and date the document.
Two persons must witness your signature and they must be at least 18 years old.
The Living Will/Advance Directive does not need to be, but should be notarized.
It can be changed at any time by you. In which case you should destroy the old one and advise others of the change. The same procedure must be compiled with as with the original.
You should give a copy to your family and your doctor, your attorney or clergy person, if you desire. Keep a copy in a secure place which is accessible by others if you become unable to act on your own behalf.

If you do not have a Living Will/Advance Directive, decisions concerning your medical care (if you are in a coma or permanent vegetative state) will be left to your spouse or family members. Your wishes may not be followed without written guidance.


Do I file a Living Will/Advance Directive in the Register of Wills Office?

The Living Will/Advance Directive does not get filed with the Register of Wills Office. The form does not need to be, but should be notarized. You should give a copy to your family and your doctor, your attorney or clergy person if you desire. Keep a copy in a secure place which is accessible to others if you become unable to act on your own behalf.


Are Life Insurance Proceeds subject to Pennsylvania Inheritance Tax?

No. Life insurance proceeds are exempt from the Pennsylvania Inheritance Tax provided that the decedent died after December 13, 1982.


Are transfers made prior to the Decedent's death subject to Pennsylvania Inheritance Tax?

It depends. Transfers made within one year of the death of the decedent, if made without valuable and adequate consideration in money or monies worth at the time of the transfer, is taxable to the extent that the transfer exceeds $3,000.00 per transferee during any calendar year. Property that was transferred with the decedent retaining a life interest in same is also taxable.


What are Spousal tax rates?

The rate of tax for transfers to a surviving spouse is dependent on the statute in effect as of the decedent's date of death. The applicable rates and effective dates are:

Dates of DeathRate
Prior to July 1, 19946%
July 1, 1994 through December 31, 19943%
January 1, 1995 and after0%

Does Pennsylvania recognize convenience accounts?

No. Pennsylvania does not recognize convenience accounts. If an individual adds a name to an account and should the person added to the account pre-decease, the surviving person whose name remains on the account would be required to pay Pennsylvania Inheritance Tax on a portion of the account.