Estate Planning & Real Estate

Does Real Estate Go Through Probate in Pennsylvania?

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Real estate in Pennsylvania goes through probate unless the deed is structured to avoid it before the owner dies. The will does not control what happens to the house. The deed on file at the county recorder at the time of death determines whether probate is required or whether the property transfers automatically to a surviving owner or beneficiary.

If the property is held in one name alone or as tenants in common, an estate must be opened and a fiduciary deed obtained before title can be transferred. If the property is held in joint tenancy with right of survivorship, tenancy by the entirety, a life estate, or a revocable trust, the property transfers outside of probate. There is no middle ground and no correction available after death.

Lebovitz & Lebovitz, P.A. · Serving Pittsburgh and Western Pennsylvania since 1933. Based in Swissvale near the Parkway East (Swissvale–Edgewood exit).

Does Real Estate Go Through Probate in Pennsylvania

Whether real estate in Pennsylvania goes through probate depends on how the deed is titled at the time of death. Pennsylvania law recognizes four ownership structures that determine the answer.

• Sole ownership. Property held in the deceased owner’s name alone must go through probate. An executor must be appointed and a fiduciary deed obtained before title can be transferred to an heir or sold.
• Joint tenancy with right of survivorship. Property passes automatically to the surviving joint owner at death. No probate required. The deed must expressly state survivorship language to create this structure.
• Tenancy by the entirety. Available only to married couples. The surviving spouse takes full ownership at the first death without probate. Provides automatic survivorship and creditor protection during marriage.
• Trust ownership. Property held in a revocable living trust passes according to the trust terms at death without probate. The grantor retains full control during life and can amend or revoke the trust at any time.

If none of these non-probate structures are in place at the time of death, probate is required. For strategies to structure real estate ownership to avoid probate, see how to avoid probate in Pennsylvania. That page covers planning tools and their consequences in detail.

When Real Estate Goes Through Probate in Pennsylvania

Real estate goes through probate when title is held in the deceased owner’s name alone. An executor must be appointed, an estate opened through the Register of Wills, and a fiduciary deed obtained before title can be transferred to an heir or sold to a third party. None of that can happen informally. The institution that holds the mortgage, the title company at a future closing, and the county recorder all require documentation of a properly administered estate before they will recognize a transfer. If the property carries a mortgage, the obligation does not disappear at death. See what happens to a mortgage when the owner dies in Pennsylvania.

Property held as tenancy in common also goes through probate. When one co-owner dies, their fractional share passes through their estate, not automatically to the surviving co-owners. It passes wherever the will directs, or to intestate heirs if there is no will. The deceased owner’s share requires the same probate process as any other estate asset. The property must be appraised at its date-of-death fair market value for the Pennsylvania inheritance tax return, and the executor cannot transfer clear title until the estate is opened and inheritance tax obligations are addressed.

When Real Estate Avoids Probate in Pennsylvania

Joint tenancy with right of survivorship. When two or more owners hold property as joint tenants with right of survivorship, the surviving owner takes full ownership automatically at death by operation of law. No probate is required. The deed must expressly state survivorship language to create this structure. Pennsylvania does not presume joint tenancy from co-ownership alone.

Tenancy by the entirety. Available only to married couples, tenancy by the entirety carries the same automatic survivorship. The surviving spouse takes full ownership at the first death without probate. Neither spouse can sever the arrangement unilaterally or encumber the property without the other’s consent, and it provides creditor protection against individual judgments during life.

Life estate deed. A life estate deed names a remainder beneficiary who automatically receives full ownership at the life tenant’s death. Because the remainder interest is created when the deed is recorded, no probate is required to complete the transfer. The life tenant retains full use and control during their lifetime but cannot sell or mortgage the property without the remainder beneficiary’s consent.

Revocable trust. Property transferred into a revocable trust during life passes according to the trust terms at death, without probate. The grantor retains full control and can amend or revoke the trust at any time. Unlike joint tenancy or a life estate, the trust does not create a present ownership interest in any beneficiary during the grantor’s lifetime.

Pennsylvania does not allow transfer-on-death deeds for real estate. A beneficiary designation placed directly on a deed, the way TOD and POD designations work for financial accounts, is not legally recognized for real property in this state. For a full discussion of why Pennsylvania does not recognize TOD deeds and what alternatives exist, see transfer-on-death deeds in Pennsylvania.

What Happens to Real Estate That Goes Through Probate

When real estate is part of a Pennsylvania estate, the executor has authority to manage, maintain, and sell it during administration. Before the property can be transferred to an heir or sold, the executor must be formally appointed through the register of wills and the estate properly opened. The executor cannot transfer clear title until the estate is opened and inheritance tax obligations are addressed.

The property is appraised at its date-of-death fair market value for the REV-1500 inheritance tax return. Inheritance tax must be paid, or a payment arrangement established with the Pennsylvania Department of Revenue, before a clean title transfer can occur. An unpaid inheritance tax obligation creates a lien that follows the property and must be resolved at any future closing. Title companies and mortgage lenders will not close on a property with an unresolved inheritance tax lien. For a complete explanation of the administration process in Pennsylvania, see estate administration and probate.

Pennsylvania Inheritance Tax on Real Estate

Pennsylvania inheritance tax applies to real estate transfers at death regardless of whether the property goes through probate. A survivorship transfer to a child is taxed at 4.5 percent of the date-of-death value. A transfer to a sibling is taxed at 12 percent. A transfer to an unrelated party is taxed at 15 percent. Transfers to a surviving spouse are exempt.

The tax is due nine months after death, with a 5 percent discount available if paid within three months. Even when real estate avoids probate through a survivorship structure or life estate, the transfer must still be reported on the REV-1500 and the tax must be paid. The property passes outside the estate, but the tax obligation follows the transfer. If the beneficiary sells the property without resolving the inheritance tax, the lien remains and will be discovered at closing. For rates, filing requirements, exemptions, and how inheritance tax applies to real estate in Pennsylvania, see Pennsylvania inheritance tax on real estate.

Common Mistakes About Real Estate and Probate in Pennsylvania

Families dealing with real estate after a death often make preventable mistakes that create title problems, delays, and disputes. Most of these errors come from misunderstanding how Pennsylvania law treats property at death or assuming the will controls outcomes that are actually determined by the deed.

• Assuming the will controls the house. The will controls only assets that pass through the estate. If real estate is held in joint tenancy, tenancy by the entirety, a life estate, or a trust, the will has no authority over that transfer. The deed structure controls.
• Trying to use a transfer-on-death deed. Pennsylvania does not recognize transfer-on-death deeds for real estate. A document purporting to transfer real estate only at death will not be honored by title companies or courts. Probate avoidance for Pennsylvania real estate requires a structural change in ownership before death.
• Attempting to transfer property informally after death. When the property was held in the deceased owner’s name alone or as a tenant in common, an estate must be opened and the executor must obtain a fiduciary deed before title can be transferred. Family agreement does not substitute for a properly administered estate, and title companies will not insure a transfer without proper probate documentation.
• Ignoring inheritance tax obligations. Avoiding probate does not avoid Pennsylvania inheritance tax. Real estate that transfers by survivorship, life estate deed, or trust is subject to the same inheritance tax as property that passes through probate. The tax must be reported and paid within nine months to avoid penalties and a lien on the property.
• Assuming tenants in common ownership avoids probate. Tenants in common do not have survivorship rights. When one co-owner dies, their fractional share passes through their estate, not automatically to the surviving co-owners. The deceased owner’s share requires probate before it can be transferred.

Stephen H. Lebovitz is a real estate and estate planning attorney at Lebovitz & Lebovitz, P.A. in Swissvale, Pennsylvania, with more than three decades of experience handling property transfers, estate administration, and inheritance tax matters in Allegheny County.

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Pennsylvania probate proceedings are governed by the Probate, Estates and Fiduciaries Code in Pennsylvania statutes. Estate administration is handled through the Pennsylvania Unified Judicial System in the Register of Wills and Orphans’ Court.