Pennsylvania Will Requirements

Your last will and testament (will) is a legal document that expresses your instructions about how your estate is distributed after your death. With a will, you can provide for your family members and loved ones, as well as appoint a guardian for your minor children. Your estate assets go through a legal process known as probate, where the court oversees the transfer of your assets to your beneficiaries.

Pennsylvania’s legal requirements for a valid will are specific. If you pass without a will, known as dying “intestate,” or if your will is not valid, state law takes over. This article explores how to make a valid will in Pennsylvania, what happens if you don’t have one, and how to start creating your estate plan.

Estate Planning in Pennsylvania

Estate planning is for anyone who has assets such as real estate, personal property, or financial accounts. An estate plan can be will-based or trust-based. It provides your instructions on how you want your estate handled at your death. A comprehensive estate plan also includes incapacity planning, such as an advance directive and a durable power of attorney for financial matters, which provide guidance on healthcare and financial matters.

Together, these legal documents and others make up your estate plan. This article will explore and explain Pennsylvania wills.

Requirements for a Valid Will

A valid will must meet these requirements under Pennsylvania law:

• The will must be in writing. Nuncupative (oral) wills are not recognized by the state. Pennsylvania does not have a holographic will statute, but a holographic (handwritten by the testator) will that meets all the requirements of a Pennsylvania will may be valid. It’s more vulnerable to challenges over capacity, undue influence, and authenticity.
• The testator (person making the will) must have testamentary capacity. They also must be at least 18 years of age and of sound mind.
• The testator must sign at the end of the will. No witnesses are required when the testator personally signs the will.
• If unable to sign the will themselves, the testator may make a mark at the end of the will or direct another person to sign on the testator’s behalf. If the testator uses a mark, two witnesses are required. When another person signs, the testator must declare in the presence of two witnesses that the document is the will. In either case, the witnesses must sign the will in the testator’s presence.

Although not required, a will may include self-proving affidavits executed by witnesses before a notary. These affidavits can simplify probate by allowing the Register of Wills to accept the will without requiring additional testimony or evidence from the witnesses regarding its execution.

Probate in Pennsylvania

Whether you have a will or not, your probate assets must go through probate. Probate addresses assets that do not transfer automatically by beneficiary designation, joint ownership, or trust. The Register of Wills handles the probate process in Pennsylvania.

After determining the will is valid, the ensuing process follows this general pattern:

• The Register of Wills issues Letters Testamentary to the executor
• The executor notifies beneficiaries and publishes a Notice of Estate Administration in local newspapers to alert creditors
• The executor gathers and inventories the estate assets
• The executor pays all of the estate’s debts, including taxes, according to statutory priority
• The executor distributes the remaining estate to your named beneficiaries in the will
• The estate is closed

If you don’t have a will or if the will is invalid, the state of Pennsylvania fills in the gaps of the probate process. Instead of an executor, an administrator is appointed. The Register of Wills grants Letters of Administration to a qualified applicant who then serves as the administrator. Your remaining estate will go to your relatives according to the intestacy laws, rather than to the named beneficiaries in a will. The Orphans’ Court handles disputes and other issues that require judicial intervention.

What’s Unique About Pennsylvania Will Laws?

While wills are fairly similar across the 50 states, there are differences in each state’s laws. Here are some of the unique or uncommon features of Pennsylvania’s laws on wills that are good to be aware of:

• Inheritance tax: Although Pennsylvania does not impose an estate tax on the estate assets at your death, it does impose an inheritance tax on your bequests under the will and other transfers at death. The percent depends on the beneficiary’s relationship to you. Surviving spouses, the deceased’s young children, and charities pay no inheritance tax. Adult children and other lineal descendants pay 4.5%, siblings pay 12%, and all other heirs pay 15%. This tax applies to many probate and even non-probate transfers. The state offers a 5% discount on inheritance tax paid within three months of the decedent‘s death.
• Witnesses: Pennsylvania generally doesn’t require witnesses for a will that is signed by the testator. It is one of only a few states that doesn’t require witnesses.
• Elective share: The elective share is a device intended to prevent one spouse from disinheriting the other. Pennsylvania protects surviving spouses with a 33.3% elective share, which applies to the probate estate and many non-probate transfers, such as certain jointly owned property and revocable trust assets. As a result, simply moving assets outside probate may not be sufficient to defeat a surviving spouse’s elective share rights.
• Revocation upon final divorce decree: In general, Pennsylvania revokes will provisions benefiting a former spouse once the marriage is legally terminated by divorce. Separation alone doesn’t revoke those provisions. If you die while separated but still legally married, you may unintentionally leave assets to your estranged spouse under an outdated estate plan.

As you can see, there are many moving parts to a valid will. If you have any concerns, consider speaking with a Pennsylvania estate planning attorney.

Take Charge of Your Estate Today

Pennsylvania does not require you to use an attorney to create a will, but it doesn’t provide a form will. If you want to make your own will, you can follow the statutory requirements. Another do-it-yourself option is to use a state-specific will template from an online DIY estate planning service.

Work With a Pennsylvania Estate Planning Attorney

Wills can be tricky to create. If you have any doubts about yours, speak with a Pennsylvania estate planning attorney. They’ll give you legal advice tailored to your specific circumstances. When family dynamics are complex, your assets are significant, or you just want the peace of mind that comes from working directly with a professional, consulting an expert with a practice area in estate planning or elder law can be your best option.