(The following information applies in the state of Pennsylvania only.)
If you die without a Will you are “Intestate” and your assets pass in accordance with rules set up by the Commonwealth. A common misunderstanding is that if you die without a Will your assets may end up passing to the Commonwealth. This is possible, but only if you have no living relatives. The Commonwealth has set up rules to divide the assets of intestate estates, but often these rules do not give assets to the people that the deceased person would have had they put his or her wishes in a Will. The intestate rules are set out in Chapter 21 of the PEF Code.
Most people assume that if they die without a Will all their assets pass automatically to their surviving spouse, this is not necessarily true!
The surviving spouse receives everything only if the intestate deceased had no surviving issue (children, grandchildren, etc.) or parents.
If there is a surviving spouse and issue, and the issue is issue of both the surviving spouse and the deceased, the surviving spouse gets the first $30,000.00 and one-half of the remaining assets. The other one-half of the assets are divided between issue.
If there is a surviving spouse and surviving issue, but at least one of the issue is not the issue of the surviving spouse (e.g., a child from the deceased’s previous marriage), then the intestate estate is divided one-half too the surviving spouse and one-half to issue.
If there is a surviving spouse, no surviving issue, but the deceased’s mother or father survives the intestate decedent, the surviving spouse gets the first $30,000.00 plus one-half the balance while the surviving parents divide the remaining one-half share.
If there is no surviving spouse, then the entire intestate estate passes to surviving issue. If there is no surviving issue, then the deceased’s parents divide the entire estate. If there is no surviving spouse, no surviving issue and no surviving parents then the assets are divided between the issues of the parents (typically the deceased’s siblings or if they have died, the nieces and nephews).
If there is no surviving spouse, issue or surviving issue of parents, but at least one grandparent survives the decedent, then one-half to the paternal grandparents or grandparent, or if both are dead, to the children of each of them and the children of the deceased children of each of them, and one-half to the maternal grandparents or grandparent, or if both are dead to the children of each of them and the children of the deceased children of each of them. If both of the paternal grandparents or both of the maternal grandparents are dead leaving no child or grandchild to survive the decedent, the one-half which would have passed to them or to their children and grandchildren shall be added to the one-half passing to the grandparents or grandparent or to their children and grandchildren on the other side.
If no grandparent survives the decedent, then to the uncles and aunts and the children and grandchildren of deceased uncles and aunts of the decedent as provided by the Code.
If the deceased is survived by none of these people, then, and only then, does the intestate estate pass to the Commonwealth.
In Pennsylvania you must be at least 18 years of age and of sound mind to make a will. Your will must be in writing and signed at the end by the testator. If the testator is unable to sign his or her will, someone else may sign the will for the testator so long as this is done in the testator’s presence and at his or her direction.
In Pennsylvania it is not necessary for the signing of your will to be witnessed by anyone; however it is customary to have at least two people witness the signing of your will.
Pennsylvania does accept self-proved wills. Such a will includes a separate page which is notarized and signed by the testator and witnesses. The purpose is to ensure that upon the death of the testator, the will be accepted as signed and the witnesses to the will will not need to be found.
A codicil is an amendment or addition to a will that you have already executed. A codicil may be as simple as changing or adding a name or a number, or it can be as complex as rewriting or adding whole new sections to your existing will. A codicil to your will becomes part of your will and will be read together with your will to figure out what you want done with your assets at your death.
A codicil must be executed in the same manner as required by you states as for a will. Generally this means that that you will need two witnesses and perhaps a notary to have your codicil be accepted.
All wills must be proved by two witnesses before the will will be admitted into probate. For this reason, it is best to have your will witnessed and include a self-proving page upon execution.
If you divorce after you have executed your will all portions of your will that make mention of or give anything to your ex-spouse are revoked automatically.
If you have or adopt a child after you execute your will that new child will take the portion of your estate, after your surviving spouse, that they would have been entitled to if you had died without a will (See: “What if I die without a will?” above).
In Pennsylvania, unless you have a valid post or prenuptial agreement, your spouse will have a right to a portion of your estate even if you have intentionally excluded them from your will. In Pennsylvania, your spouse will be entitled to ?elect? against your estate and collect an elective share of 1/3 of your total estate regardless of whether or not you have a valid existing will.
Many people keep their wills and other important documents in their safe deposit boxes. Though these documents may be safe from fire and theft in a safe deposit box, your personal representative may have a difficult time accessing these documents when they are needed. Because of the delays and complications that can arise with the use of safe deposit boxes for this purpose, it is not recommended that these be used for the safekeeping of documents such as these.