Difference between revisions of "Estates in Pennsylvania"
(Overview of the transfer of real property through probate and Estates) |
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= Overview = | = Overview = | ||
| − | = Underwriting | + | = Underwriting = |
*If a Will does not specifically direct or authorize the sale of real property, ensure that the sale is not prohibited and that any devisees of the Property join in the conveyance. | *If a Will does not specifically direct or authorize the sale of real property, ensure that the sale is not prohibited and that any devisees of the Property join in the conveyance. | ||
| + | *While not strictly necessary to pass good title, it is usually preferable to have all Heirs of an intestate decedent join the sale deed with the Administrator. When not feasible, evidence that the Heirs are aware of and consent to the transaction should be obtained. | ||
| + | *A Renunciation of a person's right to administer an Estate does not waive that person's substantive share of the Estate. To accomplish that, the person must give a Disclaimer. | ||
= Personal Representatives = | = Personal Representatives = | ||
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"Except as otherwise provided by the will, if any, the personal representative may sell, at public or private sale, . . . any real property not specifically devised, and with the joinder of the specific devisee real property specifically devised."<ref>[https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=33&sctn=51&subsctn=0 20 Pa. C.S. § 3351]</ref> | "Except as otherwise provided by the will, if any, the personal representative may sell, at public or private sale, . . . any real property not specifically devised, and with the joinder of the specific devisee real property specifically devised."<ref>[https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=33&sctn=51&subsctn=0 20 Pa. C.S. § 3351]</ref> | ||
| + | |||
| + | === Delegation === | ||
| + | "(a) Power of attorney. -- A personal representative may convey real estate, transfer title to personal estate, or perform any other act of administration by an attorney or agent under a power of attorney. '''Nothing in this subsection authorizes the delegation of any discretionary power.'''<br> | ||
| + | ...<br> | ||
| + | (c) Delegation authorized by governing instrument.--Nothing in this section precludes a delegation authorized by the governing instrument."<ref>[https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=33&sctn=19&subsctn=0 20 Pa.C.S. § 3319(a), (c)]</ref><br> | ||
| + | <br> | ||
| + | While a personal representative may delegate non-discretionary authority, the Power of Attorney statute requires the POA to expressly grant authority to "exercise fiduciary powers that the principal has authority to delegate."<ref>[https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=56&sctn=1&subsctn=4 20 Pa.C.S. § 5601.4(a)(7)]</ref> | ||
= Intestate Succession = | = Intestate Succession = | ||
| Line 22: | Line 31: | ||
= Taxes = | = Taxes = | ||
| + | See [[Inheritance Taxes in Pennsylvania]] | ||
| − | See | + | = Foreign Fiduciaries = |
| + | Foreign fiduciaries can exercise power over Pennsylvanian property by complying with [https://www.legis.state.pa.us/cfdocs/legis/LI/consCheck.cfm?txtType=HTM&ttl=20&div=0&chpt=41&sctn=1&subsctn=0 20 Pa.C.S. § 4101]. This statute requires (1) filing of exemplified copies of listed documents with the local Register of Wills, (2) filing of an Affidavit by the foreign fiduciary stating the estate is not indebted to anyone in Pennsylvania, and the foreign fiduciary will not take any actions prohibited by their home state. The foreign fiduciary cannot exercise any powers within Pennsylvania until at least 1 month after the decedent's death, and must pay all taxes due the Commonwealth from a sale of the Property.<br> | ||
| + | <br> | ||
| + | For the Affidavit: “We therefore hold that until a debt has been judicially established, whether through a lawsuit or an audit pursuant to the grant of ancillary administration, an asserted but unliquidated obligation does not constitute an indebtedness for the purpose of § 4101(2).”<ref>''See'' ''Biglan v. Biglan'', 330 Pa. Super. 512, 479 A.2d 1021 (1984).</ref> | ||
| + | |||
| + | = Disclaimers = | ||
| + | |||
| + | = Affidavits of Heirship = | ||
| + | Affidavits of Heirship are not customary in Pennsylvania. The preferred method of conveying title is by opening an Estate and having an Administrator appointed. Alternatively, a Court determination of Heirship and rights to the property can be sought. | ||
Latest revision as of 06:13, 16 April 2024
Contents
Overview
Underwriting
- If a Will does not specifically direct or authorize the sale of real property, ensure that the sale is not prohibited and that any devisees of the Property join in the conveyance.
- While not strictly necessary to pass good title, it is usually preferable to have all Heirs of an intestate decedent join the sale deed with the Administrator. When not feasible, evidence that the Heirs are aware of and consent to the transaction should be obtained.
- A Renunciation of a person's right to administer an Estate does not waive that person's substantive share of the Estate. To accomplish that, the person must give a Disclaimer.
Personal Representatives
Under the Probate, Estates and Fiduciaries Code, both Administrators and Executors are considered "Personal Representatives" and certain provisions apply to both roles.[1]
Statutory Powers
Power to Sell
"Except as otherwise provided by the will, if any, the personal representative may sell, at public or private sale, . . . any real property not specifically devised, and with the joinder of the specific devisee real property specifically devised."[2]
Delegation
"(a) Power of attorney. -- A personal representative may convey real estate, transfer title to personal estate, or perform any other act of administration by an attorney or agent under a power of attorney. Nothing in this subsection authorizes the delegation of any discretionary power.
...
(c) Delegation authorized by governing instrument.--Nothing in this section precludes a delegation authorized by the governing instrument."[3]
While a personal representative may delegate non-discretionary authority, the Power of Attorney statute requires the POA to expressly grant authority to "exercise fiduciary powers that the principal has authority to delegate."[4]
Intestate Succession
Wills
Taxes
See Inheritance Taxes in Pennsylvania
Foreign Fiduciaries
Foreign fiduciaries can exercise power over Pennsylvanian property by complying with 20 Pa.C.S. § 4101. This statute requires (1) filing of exemplified copies of listed documents with the local Register of Wills, (2) filing of an Affidavit by the foreign fiduciary stating the estate is not indebted to anyone in Pennsylvania, and the foreign fiduciary will not take any actions prohibited by their home state. The foreign fiduciary cannot exercise any powers within Pennsylvania until at least 1 month after the decedent's death, and must pay all taxes due the Commonwealth from a sale of the Property.
For the Affidavit: “We therefore hold that until a debt has been judicially established, whether through a lawsuit or an audit pursuant to the grant of ancillary administration, an asserted but unliquidated obligation does not constitute an indebtedness for the purpose of § 4101(2).”[5]
Disclaimers
Affidavits of Heirship
Affidavits of Heirship are not customary in Pennsylvania. The preferred method of conveying title is by opening an Estate and having an Administrator appointed. Alternatively, a Court determination of Heirship and rights to the property can be sought.
- ↑ 20 Pa.C.S. § 102
- ↑ 20 Pa. C.S. § 3351
- ↑ 20 Pa.C.S. § 3319(a), (c)
- ↑ 20 Pa.C.S. § 5601.4(a)(7)
- ↑ See Biglan v. Biglan, 330 Pa. Super. 512, 479 A.2d 1021 (1984).
