CHAPTER 9
 

PROCEEDINGS INVOLVING
REAL eSTATE

 

 
 
 
 

A.

Distribution
     
A probated will is usually a sufficient public record of the passing of legal title to the decedent’s real estate, whether the realty passes by specific devise or under a residuary clause. In many instances, however, as for example, if the real estate is located in a county other than where the will was probated, or if for some reason the real estate did not, in fact, pass to the beneficiary named in the will, an executor (or administrator, c.t.a.) should execute and record a deed, preferably with appropriate recitals, to the transferee.

Where real property passes by intestacy, most often where a decedent leaves no will, the administrator should always prepare and record a deed for the purpose of transferring title to the heirs. Consider also the Divorce Code of 1990, especially 23 Pa. C.S. §3323 and Chapter 35 in determining when spouses of the parties in interest must join in the deed.

Distribution by a personal representative’s deed to heirs or devisees is a risk distribution. See PEF Code §3532. In order to be effective against creditors, distribution must be made more than one (1) year after the first complete advertisement of the grant of letters. It is safer, however, to file an account and to have the Court award the real estate by adjudication. See Phila.O.C. Rule 6.11.A. The adjudication usually directs the filing of a schedule of distribution. Indeed, the best practice is to request such a direction. After such a schedule of distribution containing a full legal description and a recital of title is filed and approved, an excerpt from the schedule, certified by the Clerk of the Orphans’ Court, should be obtained by counsel and recorded in the public office for the recording of deeds in the county where the property is located. See Phila.O.C. Rule 6.11.A(6)(c). The Clerk’s office has printed forms available for this purpose. See PEPH, Green Book, 6.15. After the excerpt is recorded, it should be given to the heir or devisee concerned since this recorded excerpt is tangible evidence of an interest in the real estate tantamount to a deed. In some counties, the legal description is submitted at audit with the statement of proposed distribution and an excerpt from the adjudication is then recorded. In Philadelphia, counsel is required to certify personal examination of the description in the last deed of record of the subject property and that the description submitted is an exact copy thereof on the schedule of distribution. See Phila.O.C. Rule 6.11.A(6)(b).

When a decedent dies intestate leaving only homestead real estate that the heirs, or some of them, intend to occupy, it may be that no personal representative is appointed. In this case, the title change can and ought to be reflected of record with a deed given by all of the intestate heirs to themselves or the intended owner[s].2
 
 
2 If record title is held or shared in proportions not exactly equivalent to the inheritance, there may be realty transfer tax to pay but much future difficulty will be avoided.
 
 

 
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