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
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
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
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
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.