Estates: PA: PHILADELPHIA

The Probate Process

What I Need To Clear Title

Things to Look Out For

Proof of Death

 

A ‘death certification’ is the one true way to prove someone is dead. These are distributed by the county (Register of Wills) and only given to the heirs. The Register of Wills will not distribute death certs to any third party.

If the deceased is back in the chain of title or has been dead for a long time and no one involved in the transaction has the death cert, you may have trouble getting your hands on it. There are other creative ways to reasonably prove someone is dead that can satisfy title requirements.

Back in the day, an obituary and photo of a headstone may have been enough for a title UW. There are better ways today.

If you have access to a database such as Accurint, Lexis Nexis or TLO, you can verify death there. If the death is further back in the chain of title, look at the recitals on deeds to see if the death is called out.  

What Role Does the Will Have in Estate Administration?

 

If the deceased has left a will, it has to be filed for probate in the office of the Register of Wills in the county in which the decedent resided. If the will is valid, its directions are followed in distributing the estate to the beneficiaries. If property is specifically willed to someone, the executor alone cannot sign a deed to sell property without including the beneficiary of the property named in the will.

A will has Executors, if there’s no will, there are Administrators

If There’s a Will

Creditors and all other debts and expenses are paid first, then the remainder is paid out based on the will. Any other possible heirs must sign:

  1. a renunciation of any claims and

  2. support for the executor

  3. In order to be granted the Letters Testamentary.

 

Under most circumstances executors have the power to sell real estate without the joinder of the heirs.

"Specific devised" property is property that is specifically identified in the will (e.g. "123 Main Street" or "my 40 acre farm in Conshohocken"). If certain property has been specifically devised, the specific devisee must also sign the deed.

                 

    

When is a Will Effective?

 

A Will is effective at the death of the deceased. Whatever will is the most recent at the moment a person dies, is it. The creator of a will may change it as many times as he/she wants while he/she is alive. The moment he/she dies, that’s it. The most recently signed will is the will.   

 

                       

If There’s No Will?

 

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

When a person dies without having a will, title to his or her property passes according to:

Laws of Intestate Succession  20 Pa.C.S.A. § 2101

 

If the decedent is survived by:

  1. spouse and no children, property passes to the spouse

  2. children and no spouse, property passes to the children

  3. Spouse and children, property is split between them, depending on how many children and whose they are

  4. no spouse or children/grandchildren, property passes to the parents

  5. no spouse, children/grandchildren, or parents, property passes to the siblings.              

Inheritance Tax

Scenario 1:

Last recorded deed is into the name of Joan and Tom Smith. The seller now is David Smith, Joan and Tom’s son. It seems Tom died in 1998, Joan died in 2008 and David has held the property since. David doesn’t know anything about the filing of inheritance tax and has been living in the property since his parents died.

  • Likely an estate was ‘raised’, meaning it’s been put before the probate process.

  • Find out if an attorney was involved at the death of Joan in 2008. If so, they will be the path of least resistance to getting everything needed and hopefully did a good job.

  • Go to your searcher for inheritance tax filing. It will only appear if it exists. If not, then nothing will appear of record and we’ll need proof that it’s been filed, paid and ‘accepted as filed’.

  • You’ll need the death cert as proof of death for both parents. David, as their child, can order one if he doesn’t already have them (likely he has them).

  • Letters of administration will come from David or from his attorney that filed the estate on behalf of Joan.

  • If no inheritance tax return has been filed, you can collect escrow to close of 4.5% of the estimated value of the property in 2008, at the time of Joan’s death

Inheritance Tax Lien

Inheritance tax is due nine months from the date of death and if the tax is not paid within that time it becomes a silent lien against the real property included in the transfer of which the taxes are imposed.  

This silent lien will remain open against the property for 20 years unless it is paid or proof is provided to the Department of Revenue that the tax was not due. 

 

In order to release the lien you must obtain a payoff from the Department of Revenue.   

Contracts and Resources