PENNSYLVANIA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills:ย Pa. Cons. Stat., Title 20, Chapter 25 (20 Pa. Cons. Stat. ยงยง2501, et. seq.).
Trusts:ย Pa. Cons. Stat., Title 20, Chapter 77 (20 Pa. Cons. Stat. ยงยง7701, et. seq.).
Pennsylvania Will Requirements.
To execute a valid will, a Pennsylvania testator must be at least 18 years old and โof sound mind.โ Pennsylvania law requires wills to be in writing and signed by the testator at the end of the document.ย Alternatively, someone else may sign on behalf of the testator at the testatorโs direction and in the testatorโs presence.ย Text included beneath a testatorโs signature does not invalidate a will but is not considered part of the will.ย ย
A will signed personally by a Pennsylvania testator technically need not be witnessed, though inclusion of two witnesses eases the probate process.ย A will signed by another person for the testator must be attested by two adult witnesses.ย Likewise, a will executed by affixing the testatorโs mark where the signature would otherwise appear must also include signatures of two witnesses.ย When witnesses are required, they must be adults, and they must observe the testator stating that the document is in fact intended as the testatorโs will.ย ย
A Pennsylvania will can be made โself-provedโ by execution of a statutorily compliant notarized affidavit.ย The affidavit must include the testatorโs acknowledgement of the will, along with attestation by the witness(es) that the testator signed the will of his or her own volition, for the purpose of creating a will, and while of sound mind.ย When a self-proved affidavit is present, it serves as evidence of a willโs authenticity in probate, avoiding the need for witness testimony.ย The Pennsylvania Legislature published a template for the affidavit within the Pennsylvania Consolidated Statutes.ย
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Amendment, Revision, and Revocation of Pennsylvania Wills.
Pennsylvania wills may be amended or revised through execution of a codicil (an addendum to an existing will).ย To effectively amend a will, a codicil must be executed in compliance with all legal requirements that apply to creation of a will.
An existing will or provisions thereof can be revoked through execution of a later will, codicil, or other written document signed by the testator expressing the intent to revoke the prior will.ย Any document revoking a will must satisfy all formalities required for creation of a will.
Alternatively, a Pennsylvania will can be revoked by the testatorโs (or another person at the testatorโs direction and in the testatorโs presence) intentional destruction of the will (such as through burning or shredding) for the purpose of revoking it.ย If the destruction is accomplished by someone else at the testatorโs direction, two witnesses must observe the revocation.
If a testator is divorced after executing a will (or is involved in divorce proceedings at the time of death and grounds for divorce have been established), any devises or other provisions relating to the former spouse are rendered ineffective, unless the language of the will suggests that the provisions were intended to survive divorce.
Holographic and Oral Wills.
Neither oral (nuncupative) nor holographic (handwritten) wills are recognized under Pennsylvania law.ย However, a will written by hand, signed by the testator, and which otherwise satisfies the legal requirements for a valid will is effective.
Pennsylvania Trust Requirements.
Pennsylvania has adopted the legal approach to trusts provided under the Uniform Trust Code (enacted as the Pennsylvania Uniform Trust Act).ย Pennsylvania trusts must be evidenced by a written instrument that is signed by the grantor and expresses the intent to create a trust.ย To create a valid trust, the grantor must have legal capacity to create the trustโfor revocable trusts, the capacity standard is the same as with a will.ย ย
Additionally, a trustโs trustee must have actual duties to perform, and trusts must usually have a definite beneficiaryโsubject to a few exceptions such as animal trusts, charitable trusts, and trusts granting the trustee authority to select a beneficiary from among a class.ย In Pennsylvania, the same individual cannot be a trustโs sole trustee and its sole beneficiary.
A Pennsylvania trust can serve any purpose that is not unlawful or in violation of the Commonwealthโs public policy.ย ย
A Pennsylvania trust becomes effective when the grantor transfers title to one or more assets to a trustee for a beneficiaryโs benefit; upon the grantorโs declaration that he or she holds property as trustee for someone elseโs benefit; or upon execution of a written appointment of a trustee.
A Pennsylvania trust is terminated when it is revoked or expires under the terms of the trust instrument, when the trustโs purpose has been achieved, or when the purpose is no longer lawful or has become contrary to public policy.
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Essential Legal Protection for AchieversSpecial Considerations.
Inheritance Tax:ย Pennsylvania is among the handful of states that tax inheritances received by residents.ย The tax rate varies according to the familial relationship between the decedent and heirโwith spousal inheritances untaxed, direct lineal descendants taxed at 4.5% and siblings at 12%, and inheritances received by unrelated individuals (or relations more distant than siblings) taxed at the highest rate of 15%.
Simplified Probate:ย Pennsylvania provides a streamlined probate procedure for โsmall estatesโ (defined as less than $50,000, excluding real estate and funeral expenses).ย If small estate proceedings are approved, an executor can distribute estate assets to beneficiaries without going through the full probate process.
Spousal Elective Share:ย A surviving spouse in Pennsylvania is guaranteed at least a one-third share in a decedent spouseโs estate, even if the decedentโs will provides otherwise.ย However, surviving spouses can disclaim their elective shares.ย For purposes of the elective share, a decedentโs estate includes probate assets and assets held in trusts that were revocable at the time of death.ย Similarly, if a decedent spouseโs will was executed prior to the marriage, a surviving spouse is entitled to a share in the decedent spouseโs estate at least as large as the inheritance that would have been received had the decedent spouse died without a will.ย The minimum spousal share for a pre-nuptial will does not apply if the will was made in contemplation of the marriage.
Penalty Clause:ย A provision penalizing a beneficiary or other interested party for contesting a will or trust or commencing other estate-related proceedings is unenforceable under Pennsylvania law, as long as the contesting person has probable cause to bring the proceedings.
Trust for Care of Animals:ย Pennsylvania law permits creation of trusts for the care of one or more companion animals.ย The beneficiary animal must be living when the trust is created, and the assets funding the trust must be reasonable for the trustโs purpose.ย โPet trustsโ may be created by will and automatically terminate upon the death of the applicable animal(s).
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
