This is a question that we receive all of the time in our office. The answer is because you could have personal liability as an executor and because there may be ways to avoid probate it if you understand it and plan ahead.

Probate is merely the Commonwealth’s rule book and the process that you must go through if there is an asset in a person’s sole name at the time of their death. This excludes jointly held accounts and accounts with a beneficiary designation on the account. Probate is not good or bad. It is simply the process the Commonwealth requires us to follow in order to properly distribute assets to beneficiaries.

A personal representative, also known as an executor (or executrix if they are female), if they are named in a Will, or an administrator if they are taking authority under the intestate succession under the statute, are personally liable to the beneficiaries and to the government to properly administer the estate, make certain all debts and expensive of the decedent are paid, pay all inheritance tax and other taxes owed and to distribute the remainder of the assets to the beneficiaries pursuant to the Will or the intestate statute. A personal representative must understand the entire process and all of the legal requirements that the Commonwealth imposes, such as notices to heirs, notices to creditors, advertising of the appointment of a personal representative and filing with the Orphans’ Court, Register of Wills certifications and notices as items are completed or when the estate is complete. There is also a requirement for a Pennsylvania inheritance tax to be prepared and filed and, in some cases, a fiduciary income tax return as well. If any of these steps are not properly completed and a beneficiary, a government entity, or a charity receives less money than what they were entitled to there can and will be personal liability imputed on the personal representative.

It is essential to understand this liability to make a decision as to whether to hire an attorney to assist in the process. There is very little upside to not hiring a professional but a lot of potential downsides to not doing so, and therefore, typically, it is a much smarter decision to engage an attorney to assist you.

Probate can be avoided by either making an asset jointly owned or designating a beneficiary for that asset. However, before somebody makes an asset jointly owned or designates beneficiary for an asset they should understand the legal implications of doing so as there may be considerations beyond probate in doing so. Remember jointly owned assets or assets with designated beneficiaries don’t avoid inheritance tax, only probate is avoided.

If you have any questions concerning probate or whether you need to probate please call the office at (717) 845-5390 or visit our website at www.bellomoassociates.com