What Difference Does a Will Make?
- What is a will?
A Will is a writing signed at the end 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 the 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 Wills/Orphans' Court Division.
- When should a will be changed?
The disposition of one's property is necessarily determined by many personal factors including family and personal relationships and interests in charities. A Will should be changed when those relationships, including divorce and death, change. Changes to a Will may be made either by a completely revised Will or by a Codicil conforming to the requirements for a valid Will.
- What property passes by wills?
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 there any time 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 individuals 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 as set forth in number 6 below. 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 to others if you become unable to act on your own behalf.
If you don't 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.
Act 169 Changes in the Law - Living Will/Advance Directive
Example of a Living Will/Advance Directive
- Do I file a living will/advance directive in the Wills/Orphans' Court Division?
The Living Will/Advance Directive does NOT get filed with the Wills/Orphans' Court Division. 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 the 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 Death
|Prior to July 1, 1994
|July 1, 1994 through December 31, 1994
|January 1, 1995 and after
- 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.
- How do I locate a will if the decedent's attorney has died or has been disbarred?
Contact the Allegheny County Bar Association at 412-261-6161 to see what information they have about an attorney who died or has been disbarred. You can also search a directory of Pennsylvania attorneys to determine an attorney's status or whether an attorney has been subjected to public discipline on the website of the Pennsylvania Disciplinary Board.
Questions concerning any of the material contained in this brochure may be directed to the Allegheny County Wills/Orphans' Court Division at (412) 350-4180. If the question relates to Inheritance Tax, please contact the Allegheny County Inheritance Tax Division Hotline at (412) 350-7318.
The Allegheny County Wills/Orphans' Court Division is located on the First Floor, of the City-County Building in Downtown Pittsburgh.
Office hours are Monday through Friday, 8:30 a.m. to 4:30 p.m.
Glossary of Terms
Codicil A writing signed at the end by a testator which amends or augments an existing Will.
Decedent A term used to identify a deceased person.
Estate The property owned by a person at death over which an executor or administrator is authorized to exercise control either by virtue of a Will or, in the absence of a Will, by the Probate Code.
Joint Tenancy Property held in the names of two or more persons. The property passes to the surviving joint tenant on death of the other joint tenant or joint tenants.
Probate This means "to prove" a Will. A Will is proved when it is submitted to the Wills/Orphans' Court Division who determines the Will to be valid and issues a decree appointing a personal representative (executor) to administer the estate of the decedent.
Tenants by the Entireties A form of joint ownership exclusively for husbands and wives. On the death of a spouse, the surviving spouse becomes the sole owner of the property.
Testator/Testatrix A deceased person who leaves a Will disposing of property.
Function of the Wills/Orphans' Court Division
The Director is an appointed official, one of whose functions is to determine whether a document offered for probate should be received as the last Will of the decedent. Where a Will does not name an executor, the Director determines who shall administer the estate of the deceased.
Wills are frequently challenged on the grounds of forgery, lack of mental capacity of the testator, or undue influence. The Director hears testimony with regard to any challenge and makes a decision accepting or rejecting the document offered.
Where there is no Will, the Director grants Letters of Administration, usually to the next of kin. Where there is a dispute among the heirs as to who would serve as Administrator, the Director will conduct a hearing and resolve the dispute.
A Special Note
THIS INFORMATION HAS BEEN ISSUED TO INFORM AND NOT TO ADVISE. IT IS BASED ON PENNSYLVANIA LAW. THE STATEMENTS ARE GENERAL, AND INDIVIDUAL FACTS IN A GIVEN CASE MAY ALTER THEIR APPLICATION OR INVOLVE OTHER LAWS NOT REFERRED TO HERE.