Making a will is important to protect your family, preserve your assets, and streamline the probate process. However, you may have many questions about what goes into a will and how to make it valid in the Commonwealth of Pennsylvania. We have answers to your FAQs about Pennsylvania wills.
Table of Contents
- What If I Die Without a Will in Pennsylvania?
- Who Can Make a Will in Pennsylvania?
- Does Pennsylvania Have a Statutory Will?
- What Types of Wills Does Pennsylvania Accept?
- Can I Make My Own Will in Pennsylvania?
- How Do I Make My Will Valid in Pennsylvania?
- Can I Disinherit My Spouse in Pennsylvania?
- Can I Disinherit My Children in Pennsylvania?
- What Estate Planning Documents Should I Have in Pennsylvania?
What If I Die Without a Will in Pennsylvania?
If you died without a will, the probate court, called the Register of Wills in the Pennsylvania Court of Common Pleas, considers you “intestate.” As such, the court will apply state intestacy laws to distribute assets to the surviving spouse or along bloodlines. You may disagree with their distribution plan.
For example, you may assume if you are married, all your property goes to your spouse. However, if you have children with your spouse or don’t have children, but your parent survives you, your spouse only receives $30,000 and one-half of your assets. And if you are unmarried but have a life-long partner, they do not inherit anything from you. Therefore, if you want to provide for loved ones that are not relatives, make a will to override Pennsylvania law.
What Does a Will Do?
A last will and testament is a legal document that puts you in control of how to handle your estate. In your will, you may do the following:
- Name your executor, called a personal representative in Pennsylvania.
- Distribute your personal property and assets to your beneficiaries
- Name guardians for your minor children
- Provide care for your pets
- Give money to charity
A personal representative administers your estate, gets your death certificate, gathers your assets, follows the instructions in your will, and files income taxes. Because you made these decisions in a will, you streamline the estate administration saving time and money on probate and legal fees. Otherwise, the court must look at the decedent’s estate and determine who are the deceased person’s family members.
What Doesn’t a Will Do?
You may give your personal property and assets to beneficiaries in your will. However, you have certain assets that do not transfer through your will. You transfer those assets to your beneficiaries by transfer-on-death accounts or by beneficiary designation. When you have accounts or policies, you name a beneficiary for those accounts. For example, you may make beneficiary designations on the following:
- Bank accounts
- Investment accounts
- Retirement accounts
- IRA accounts
- Life insurance policies
It is always a good idea to name a backup beneficiary if your primary beneficiary predeceased you. If an account or policy does not have a beneficiary, the proceeds become part of your estate assets going through probate court.
Who Can Make a Will in Pennsylvania?
Pennsylvania has rules about who can make a will. A person making the will, called a testator, must meet the following qualifications:
- Age: In Pennsylvania, you must be 18 years of age or older to make a will.
- Sound Mind: You must also have a sound mind which means you know you are making a will, what assets and property comprise your estate, and who your natural beneficiaries are, meaning your family.
You may have memory difficulties but still possess a sound mind when you create and execute your will. However, if you have concerns about mental capacity, it is best to ask a lawyer for legal advice on how to proceed.
Does Pennsylvania Have a Statutory Will?
No. Pennsylvania does not offer a state will. To make a will in Pennsylvania, you can hire an estate planning attorney or do it yourself with online estate planning solutions such as FindLaw Legal Forms and Services.
What Types of Wills Does Pennsylvania Accept?
There are several ways to make a will. It’s a good idea to understand the following different will types and if they are valid in Pennsylvania.
- Handwritten Will: “Holographic wills” are handwritten and signed by a testator but lack witnesses. Because Pennsylvania does not require witnesses to a will, a will written in the testator’s handwriting is acceptable. However, it may be subject to a will contest where someone may claim the will is fraudulent or made under duress. It is harder to make these claims if a testator signs their will in front of witnesses or a notary.
- Oral Will: Oral or spoken wills are not valid in Pennsylvania.
- Electronic Will: Electronic wills refer to how a testator or witnesses can sign a will or how a notary can attest a will through electronic means. Pennsylvania does not accept electronic wills at this time.
Therefore, only written wills are permitted in Pennsylvania.
Can I Make My Own Will in Pennsylvania?
Yes. Pennsylvania allows you to make your own will. You do not need a lawyer to draft your will. Many people use online will drafting service companies to create a customized will to suit their needs. One advantage of using a service such as FindLaw Legal Forms & Services is that you can easily revoke and make a new will as your life circumstances change instead of making a codicil or addendum to your will.
How Do I Make My Will Valid in Pennsylvania?
It is not difficult to make a will valid in Pennsylvania. However, they do have some requirements:
- Signature: As the testator, you sign at the end of your original will. However, if you are unable to sign, you can make a mark on the will in front of two witnesses, provided they sign a statement that they saw you make a mark on your will as your signature. Or you can direct someone to sign for you in your presence as long as you declare in front of two witnesses that it is your will.
- Witnesses: Pennsylvania only requires witnesses to your will if you make a mark as your signature or direct someone to sign for you. However, you may want to consider making a self-proving will with an affidavit signed by two witnesses, as explained below. Many states do not allow people to serve as witnesses if they could benefit from the testator’s will or estate, meaning a beneficiary or heir. Since Pennsylvania does not mandate witnesses to a will, they do not have a rule about interested witnesses. However, if you use witnesses for any reason, it may be good practice to use disinterested witnesses so someone can’t claim you were making your will through undue influence.
- Notary: Pennsylvania wills do not require notarization. However, if you use a self-proving affidavit, you need a notary.
- Self-Proving Affidavit: Pennsylvania allows you to use a self-proving affidavit with your will. You have two witnesses sign the affidavit in your presence and a notary. The advantage of this affidavit is that it proves to the probate court that you executed the will properly and that the witnesses saw you sign it.
Once you make your will, you want to store it in a secure location such as a safe. Putting it in a safe deposit box is not a good idea because few people will have access to it.
Can I Disinherit My Spouse in Pennsylvania?
You can only disinherit your spouse if you have a premarital agreement before you marry or a post-nuptial agreement after you marry. In this agreement, your spouse waives their right to inherit or claim their elective share. An elective share is a portion of a decedent’s estate that a spouse may claim if left out of the will. Even if you don’t include your spouse in your will, they may still claim an elective share which may be no less than one-third of your estate.
Can I Disinherit My Children in Pennsylvania?
Your children do not have the right to inherit from you in Pennsylvania. However, if you leave them out of the will, a court may assume it is by mistake and give them a share of the estate. This protects children born to or adopted by the testator after they sign a will. If you want to disinherit your child, you must do so specifically in your will.
What Estate Planning Documents Should I Have in Pennsylvania?
In addition to a will, there are other important estate planning documents to consider:
- Power of Attorney. A power of attorney allows you to appoint an agent to handle your financial matters, such as paying bills, handling real estate transactions, or managing bank accounts if you are unable. Your agent has a fiduciary duty to act in your best interest.
- Living Will. A living will allows you to leave instructions for your end-of-life care. It also lets you name someone to get your health information and make medical decisions on your behalf when you can’t, for example, if you are injured and can’t speak or are in a coma.
These documents can help you and your loved ones during your lifetime, while a will helps your family and loved ones when you pass. It is essential to start or update your estate planning today.