No Last Will, No Problem

As though the loss of a loved one wasn’t challenging enough, families must navigate the estate administration process of honoring a loved one’s wishes, or lack thereof, without much direction.

The first step is to determine whether your loved one had a signed, original Last Will and Testament expressing his or her final wishes.  Estates where an original Last Will and Testament is used to direct the administration process is called a “testate estate”.  The Last Will and Testament names various people as the Executor(s) and he, she or they are responsible for following the terms of the Last Will and Testament and Pennsylvania law. Where an Executor has passed away or is unable to serve, the Co-Executor, if named, or Successor Executor can serve. It’s important to understand that the Last Will and Testament alone doesn’t confer the actual authority to act. Before any action can be taken on behalf of the estate, the person named in the Last Will and Testament to be the Executor must petition the local county Register of Wills for recognition of the authority to transact business.

Estates without a signed, original Last Will and Testament are called “intestate estates”. With no written and signed directions from your loved one in the form of a Last Will and Testament, Pennsylvania has created a process to determine who can be in charge of the estate and who  are the potential beneficiaries.

In intestate estates, the role of the Executor is called an Administrator. Pennsylvania law directs, in part, that administrators can be granted in the following order:

1. Those entitled to the residuary estate under the Will.
2. The surviving spouse.
3. Those entitled under intestate law as the register, in his discretion, shall judge will best administer the state, giving preference, however, according to the sizes of the shares of those in this class.
4. The principal creditors of the decedent at the time of his death.
5. Other fit persons.

So as not to confuse this issue, it’s worth addressing Pennsylvania intestate law as it directs that the beneficiaries under a Last Will and Testament have the right to serve as Administrator. Wouldn’t the Last Will and Testament handle this? There are circumstances where all named Executors have passed away, leaving Pennsylvania Intestacy Law to direct that the primary beneficiaries under the Last Will and Testament have the first right to serve as the administrator.

Separately, intestate estates further complicate who receives a beneficial share of the estate. According to Pennsylvania intestate law where there is a surviving spouse, the distributions to the spousal beneficiary are as follows, in part:

1. If there are no surviving issue (children or grandchildren) or parent of the decedent, the entire balance of the intestate estate.
2. If there is no surviving issue (children or grandchildren) of the decedent but he is survived by a parent or parents, the first $30,000.00 plus one-half of the balance of the estate.
3. If there are surviving issue (children or grandchildren) of the decedent all of whom are issue of the surviving spouse also, the first $30,000.00 plus one-half of the balance of the estate.
4. If there are surviving issue (children or grandchildren) of the decedent one or more of whom are not issue of the surviving spouse, one-half of the estate.

Where the surviving spouse’s share is split or there is no surviving spouse, the distributions to the non-spousal beneficiaries are in the following order:

1. Issue: To the issue of the decedent.
2. Parents: If no issue survives the decedent, then to the parents or parent of the decedent.
3. Brother, sisters, or their issue: If no parent survives the decedent, then to the issue of each of the decedent’s parents.

Before getting started with an estate, you must take account of where your situation falls. Is there a signed, original Last Will and Testament or not? Who will be in charge based on your scenario and do they want to serve in that capacity? These are some of the preliminary questions that must be addressed before embarking on the estate administration process.   At Mooney Law, we have experienced, proven, and trusted attorneys to guide you through the process.  Mooney Law also has a specialist attorney that only practices in Elder Law, Medicaid Planning, and Estate Administration and Planning.  It’s confusing and complex.  So make it easier on yourself and your loved ones.  Call Mooney Law at 833-MOONEYLAW or 717-200-HELP to schedule a free estate administration appointment to address your concerns.