What is Ancillary Probate?

A loved one who passes away with money or property leaves behind an “estate” to the surviving family. The process of opening the estate and honoring the loved one’s wishes is called probate. Probate begins by opening the estate and appointing an estate representative. The estate is always opened in the county where the person resided at the time of passing. In Pennsylvania, the proceeding is started in the Register of Wills of the county of residence.

 

A common roadblock occurs when the deceased owned real estate located in another state. For example, it is common for a Florida resident to pass with a second home in Pennsylvania. Family members often assume that the Pennsylvania property can be sold or transferred once probate is opened in Florida. The problem is that the Florida probate court only has jurisdiction to handle the Florida assets. But any real estate located in Pennsylvania falls within Pennsylvania’s jurisdiction. This means that the Florida proceedings cannot handle the deceased’s real estate in Pennsylvania.

 

Ancillary probate is important because real estate cannot be sold or transferred until an estate is opened. Even if an estate is opened in the county of passing, the ancillary estate is still required to transfer the out of state property.

 

How Does Ancillary Probate Solve this Problem?

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How Can a Family Member Disclaim an Inheritance?

What happens if a person named in a Will does not want to accept an inheritance gift? Our firm is often asked this question when handling the probate process. It is an important question because disclaimers affect the shares of the remaining beneficiaries and have potential tax implications.

 

How Can a Person Refuse an Inheritance?

 

The main requirements for a disclaimer is that it be in writing, describe what specific interests are being disclaimed, and be signed. The disclaimer must then be filed in the Orphans’ Court of the county where the deceased passed away. (You can read the entire law at 62 P.A. C.S. § 6201). The person disclaiming can refuse any kind of interest, whether money or property, or whether all or just a portion of their entitlement from the estate.

 

It is also a good idea to record disclaimers of real estate with the Recorder of Deeds. This provides title agents and potential buyers with notice of the disclaimer and avoid delays in closing.

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Five Best Practices to Avoid Probate Pitfalls

The stress of the loss of a loved one is often the most difficult time of a person’s life. Family members want to honor the wishes of their loved one and make sure the estate was handled right. But it is easy to make mistakes while under the stress of a loss.

 

In the estate administration process, mistakes in handling of the estate can lead to surcharge actions against the estate executor or administrator. Having time and money tied up in a court dispute does not benefit the estate representative or the beneficiaries. What should an executor do to avoid disputes with beneficiaries and creditors?

Here are five best practices we follow to help avoid pitfalls in estate administration.

 

1.  Secure the original will as soon as possible. If the original is lost, a legal petition is necessary to seek admission of the copy. The petition is a request the court to admit a copy of the Will into probate as if it were the original. But admission of a copy is not guaranteed, especially if the deceased’s heirs challenge the copy’s admission. In Pennsylvania, if the original is lost, there is a rebuttable presumption that the deceased destroyed and revoked the Will.

 

2.  The executor should obtain a signed settlement agreement with all beneficiaries. This is a binding agreement between the executor and all the beneficiaries agreeing to how the estate was handled. The agreement protects the executor from potential future claims by the beneficiaries and gives the executor indemnification rights should a creditor seek payment after distribution.

 

3.  Publish the estate. Publication is accomplished by placing two ads in a legal and a general circulation newspaper. Clients sometimes ask us why the formality of a newspaper ad is necessary in 2022. The reason is that the law protects the executor when an estate is published, even if the law is antiquated.

 

4.  Make sure each person receiving property as an advancement signs a receipt. It is natural for beneficiaries to want to take possession of the deceased’s property, especially those items with sentimental value. But distributing personal property affects both the inheritance taxes and the rights of other beneficiaries of the estate. An estate representative can be held responsible for losing track of who received specific items of property.

 

5.  Executors should at least consider taking a commission. Serving as an executor can be a time-consuming job. If the executor views the job as a thankless hassle, it would be better to accept compensation than to take disastrous shortcuts.

 

As a probate law firm for estate executors, we help settle estates efficiently and reduce stress. If you know someone faced with a probate process or roadblocks to an estate property sale, please have them contact us for a free evaluation at:

 

Phone: (215) 918-4242

Email: info@pennsylvaniaprobatelawfirm.com

 

If you are not quite ready for a consultation, download our probate handbook HERE. We’ll send you helpful probate guides and resources so you know how to handle the estate.