CHAPTER 2
 
 
LETTERS TESTAMENTARY

 
 
 
 
A. Probate Procedure

In order to probate, or prove, a Will and qualify as executor, the person named as executor of the Will must present to the Register the original executed Will, a Petition for Grant of Letters (Appendix A, Form No. 1), a death certificate (or other appropriate proof of death), a completed Estate Information Sheet (Appendix A, Form No. 2) and cash or a check for the probate fee, which is based upon the size of the estate, in accordance with the fee schedule (Appendix D). Additional proofs may be required if the Will is not self-proving or if certain other circumstances are present.

Where an attorney has been retained, the attorney should prepare in advance the petition for grant of Letters, the estate information sheet and any other documents that may be required to probate the Will. A supply of these forms can be obtained at the office of the Register of Wills. The petition for grant of Letters is a two-sided form, and both sides should be completed. If the testator had been adjudicated an incapacitated person, counsel for the estate should submit a certified copy of the Court order which adjudicated the testator an incapacitated person. Where more than one person is named as executor, all must appear to take the oath if all intend to serve.

Where a person named as executor has died, a death certificate for the deceased named executor should be provided. Where a named executor is unwilling or unable to serve, further documentation (a renunciation or other proof of the relevant circumstances) will be required.

The person named as executor must in the presence of the probate clerk sign the petition for grant of Letters and declare under oath administered by the Register that he will faithfully discharge the duties of the office. In addition, a probate fee based on the estimated value of the estate must be paid. A copy of the current fee schedule appears in Appendix D. Personal checks are accepted.

If the personal representative resides outside of Philadelphia and is unable to be present in the office of the Register of Wills to take the oath, a commission may be obtained from the Philadelphia Register of Wills directed to the local probate court, surrogate's office or register of wills, to take the oath at the domicile of the personal representative. The requirements for proceeding in this manner can be obtained by calling the Register of Wills at 215-686-6266. This practice may be necessary if the personal representative is located out of state or out of the Philadelphia area. In some instances, it may also be convenient for the personal representative and counsel for the estate to begin the probate of a Will of a decedent from an outlying county with the Philadelphia Register of Wills, and then transfer the proceedings to the county of decedent's domicile for the issuance of Letters. The attending commission fee may be well worth the saving of travel time of the parties.

Except for self-proven Wills, discussed below, two witnesses must appear to attest to the signature or mark of the decedent. The probate clerk will prepare the petition for grant of Letters for an unrepresented person if one is not prepared in advance. However, the probate clerk will not prepare other petitions and documents required in special situations.

The appearance of witnesses is not necessary if the decedent has a "self-proven" Will, unless there is a dispute involving the validity of the Will. A Will is self-proven when it contains an affidavit signed by the testator and two subscribing witnesses either in the presence of a notary public or an attorney who then acknowledges to a notary that the attorney witnessed execution of the affidavit. A subscribing witness is one who witnesses the testator's signature and signs as a witness at the same time.

Unless the Will is "self-proven," the witnesses to the Will must attest to their signatures in person in the office of the Register of Wills or by completing the Oath of the Subscribing Witness (Appendix A, Form No. 3) before a notary public. A subscribing witness should examine the original signatures on the Will before the oath form is completed. The form is usually submitted to the probate clerk at the time of probate. However, the witnesses may appear either at the time the person named as executor appears before the Register or at another time. Letters Testamentary will not be issued until two witnesses have attested to the signature of the testator in person as described above or an acceptable explanation of the failure to do so has been made — in which case other witnesses must be produced.

Where a witness resides outside Philadelphia, the Register will, upon request and payment of an additional fee, commission the Register of Wills or an equivalent officer in the jurisdiction where the witness resides, to take the affidavit of the witness and return the sworn statement to the Register in Philadelphia.

If there are not two available subscribing witnesses to the Will, due to death or other causes of unavailability (as determined by the Register), the execution of the Will may be proved by other persons familiar with decedent's signature.

Once the Register issues Letters Testamentary, the executor is empowered to undertake the duties of that office. Usually Letters will not be granted before the decedent's funeral unless there is an urgent and immediate need, such as problems arising from the continuation of a business or the funeral arrangements. See later discussion of "Certifications" in Chapter 5.

A person named in a Will as executor may decline the appointment by filing a Renunciation (Appendix A, Form No. 4) or similar writing with the Register. If the Renunciation is not executed before the Register, it must be verified or notarized.

Special rules govern the probate of Wills of non-residents. If the decedent was domiciled outside Pennsylvania and the Will probated there, ancillary Letters Testamentary may be issued by the Register in Philadelphia if the decedent had property located in Philadelphia, or the personal representative may qualify as a foreign fiduciary, as discussed in Chapter 15, "Foreign Fiduciaries." If the non-resident decedent's Will was not probated in the jurisdiction where the decedent was domiciled, then the original Will should be filed as in an original probate.

An effort should be made to estimate the value of the estate accurately. The estate consists of those assets owned or titled in the decedent's name alone, although it may include a share of property held by tenancy in common with others. Assets that are jointly-held with right of survivorship, "payable on death" or "in trust for" a named beneficiary are not part of the estate unless the decedent is the sole surviving joint tenant or unless the trust beneficiary has predeceased the decedent. The exact amount of the probate fee will be determined finally by the Register when the Inventory or the Pennsylvania Inheritance Tax Return are filed and the exact value of the estate is reported. An additional fee will be due and payable at that time if the value of the estate was understated at the time of probate. A refund will be made if the value of the estate was overstated, and a written request is made, accompanied by the original probate receipt.

 
 
 

 
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