Pennsylvania Estate Planning, Trust, and Executor and Probate Frequently Asked Questions (FAQs)
Do you have a question for us about Pennsylvania estate law that you do not see answered below? Contact us today to talk to an experienced lawyer about your legal needs or email your question to David Frees [email protected]
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What Happens if You are in the Middle of Buying Real Estate and the Seller Dies?
Is a Real Estate Contract Binding on an Executor?
Just because you enter into a contract to either buy or sell real estate does
not mean the deal will go through. There are many reasons why a real
estate closing may not happen. For instance, the seller may get
“sellers remorse”, or the buyers do not qualify for loans. All of these
things can be expected when entering into a residential real estate contract.
But, what happens when the seller dies in the middle of a contract and
before closing? There are certain remedies, even in the case,
of death that you, as a buyer, can utilize when a
contract is not fully executed.
One remedy available to a buyer is “specific performance”.
A court can order specific performance where the seller or an
estate is forced to carry out the terms of the contract instead of
issuing a judgment for money as the remedy. Specific performance
is used when there is a breach of contract, such as a death, and you
as the buyer want to go through with the purchase rather than receiving
a refund of your deposit monies. This type of remedy is very common
when dealing with real estate because every piece of real estate is
truly unique. As a result, money as a remedy is not always sufficient
when dealing with real estate. Therefore, specific performance is an option
to consider and to discuss with legal counsel when there is a breach of
contract regarding real estate due to the death of the seller.
And, resorting to court proceedings to compel specific performance
is often not necessary once the executor understands that you still
want the house AND that the contract still obligates the estate when
David M. Frees, III, JD
How much can an executor charge for an estate in Pennsylvania?
Generally, 3% to 5%. Less for larger estates. For more, see my article on fees by clicking here.
How long does probate take in Pennsylvania?
The answer varys from estate to estate. The biggest factors seem to be how mant executors and beneficiaries are there and what are the asset type? The more beneficiaries and executors, the more likely there is to be a dispute and or a prolonged process of decision making about the sale of assets. Also, real estate and closely held businesses often take longer to sell than publicly traded stocks and cds or bank accounts. In general most estate that we help to administer are done and closed within 6 to 14 months. But distributions can often be made much quicker.
As an Executor, how do you make sure a handwritten will is authentic?
If a will is written in someones own handwriting that is called a holographic will. In Pennsylvania unlike many other states it is valid. You will need two witnesses that can identify the signature. You will have to have to have a copy fair which is a typed transcript of the will with what you interpret as the authors intentions. You will have to make an appointment and go to the Registrar of Wills who will take this information and determine the wills validity. A holographic will is not what you want if you are planning your estate. A holographic will is more work and the state will interpret it rather than you.
In your Estate Planning how do you choose an Executor?
In your Estate Planning the Executor can be anyone over 18 that you choose. The person should be someone you trust to carry out your estate administration intentions. In most cases they are family members. In our experience people younger than 25 are not as equipt to handle the responsiblity of being an Executor. In Pennsylvannia you may also choose a friend over 18. Again make sure they are someone you trust and are capable of following your instructions. You may also choose various professional advisors from accountants to lawyers and financial advisors. Be aware if there are any ethical restrictions in that particular profession. Make sure you know what they will charge and their experience level. You may also consider a bank or institutional fiduciairies if you do not have a close family member or friend or need a neutral third party.
What is probate?
Probate is generally the process of court oversight of the estate administration process after a person passes away. Only certain assets are considered probate in nature. Probate assets typically are those owned by the decedent in the decedent's individual name (not jointly with others) and without a beneficiary designated. The Executor, where there is a will, or Administrator, where there is no will, is appointed by the Register of Wills Office in the county where the decedent last resided. He or she then must follow the probate procedures to properly complete the estate administration. However, most of our estates are ended informally and without the need to follow the entire and formal probate proces. This can result in substantial savings of time and money for an estate and is ususally accomplished by careful administration and a contract with all parties to protect the executor from personal liability.
How long does probate take?
The length of the probate process varies greatly from estate to estate and also from state to state. While many states have a lengthy probate process, Pennylvania can be informal and quite reasonable.The determining factors often include the assets involved in the estate, the experience of the Executor/Administrator and counsel and the ease in dealing with the beneficiaries. Contrary to common belief, the process is rarely impacted by the actual probate court requirements which can be accomplished timely if the other factors are favorable. More often, the length of the administration is a product of the inabilitity to sell assets such as homes or a business within a reasonable time frame. Often, we find that executors or trustees also want to make distributions before they have a final clearance from the taxing authorities. While this can be done, be cautious, as such distributions can result in your personal liability.
Should we try to avoid Probate in Pennsylvania?
It is not as important to avoid the probate process in Pennsylvania as it is in other states. The Pennsylvania probate process tends to be less cumbersome than in many other states. The probate fees are also low in Pennsylvania. However, there is an Inheritance Tax that applies to BOTH probate and non-probate assets. As a result, there is often little to be gained in the way of time or cost savings resulting from avoidance of probate in Pennsylvania.
Are assets "frozen" during the probate process?
The estate's assets are not frozen during the probate process. Once an Executor is sworn in (usually within a day or two of the funeral) all of the assets are then available to the executor or administrator. The executor or administrator is then able to control the investments, pay all valid invoices and to make advanced distibutions to beneficiaries. However, when an excutor makes early distributions, he or she should take legal precautions to ensure that they are not personally laible for these "at risk" payments to beneficiaries.