Wills, Estates, Trusts, and Probate
What to Consider When Making a Will in Pennsylvania
A Pennsylvania will controls who inherits your property, who administers your estate, and who raises your minor children, but only if it is drafted to address those questions clearly and executed under circumstances that make it defensible if challenged. The decisions that matter most are not the legal formalities, which are straightforward in Pennsylvania, but the substantive choices that determine whether the document actually accomplishes what you intended.
A will that does not address your executor, your minor children, and your non-probate assets leaves the most important decisions to a court that does not know your family.
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Choosing Your Executor
The wrong executor creates delay, conflict, and personal liability exposure for the individual you name. If your executor cannot serve, lacks the capacity to manage the estate, or refuses to act after your death, the Orphans Court appoints someone else. That process adds months to probate and may result in an administrator who would not have been your choice. Name a backup executor in the will. Without one, the court decides who serves when your first choice cannot.
The executor must be someone who can manage financial responsibilities, communicate with beneficiaries, and make decisions under pressure. Family harmony does not qualify someone to serve. A fiduciary who mismanages the estate or fails to account properly may face personal liability for losses. For guidance on what the role requires, see our page on executor duties in Pennsylvania.
Guardianship for Minor Children
If you have minor children and do not name a guardian in your will, the Orphans Court decides who raises them. The court considers the best interests of the child, not your preference. A guardianship proceeding can result in a custody dispute between relatives you would never have chosen to put in that position.
Naming a guardian is not enough if you intend to leave assets to those children. A minor cannot receive a lump sum inheritance. Without a testamentary trust, the assets are held under the Pennsylvania Uniform Transfers to Minors Act until the child reaches 21. At that age, the child receives the entire inheritance outright with no restrictions. A testamentary trust allows you to control the timing and conditions of distribution beyond age 21.
What the Will Does Not Control
Beneficiary designations on life insurance, retirement accounts, payable-on-death bank accounts, and transfer-on-death securities override the will. If your will says everything goes to your spouse but your IRA names your ex-spouse as beneficiary, the ex-spouse receives the IRA. Divorce revokes spousal beneficiary designations on the will under 20 Pa. Cons. Stat. § 2507, but it does not revoke beneficiary designations on life insurance or retirement accounts unless you change them.
Joint accounts with right of survivorship pass to the surviving account holder, not through the will. Real estate owned as joint tenants with right of survivorship or tenants by the entirety passes to the surviving co-owner. If you intend those assets to be distributed under the will, the account or deed must be retitled before your death. Most estate planning mistakes happen here, not in the will itself.
Specific Bequests and Ademption
A specific bequest leaves a particular item to a named beneficiary. If you sell that item, give it away, or it no longer exists when you die, the bequest fails under the doctrine of ademption. The beneficiary receives nothing in its place unless the will includes a substitution provision. If you leave your car to your nephew and the car is totaled before you die, the nephew does not receive the insurance proceeds or a replacement vehicle unless the will says so.
The residuary estate clause distributes everything not specifically bequeathed. Most of your estate should pass through the residuary clause, not through a list of specific bequests. Specific bequests create problems when your assets change over time.
The Self-Proving Affidavit
Pennsylvania does not require a self-proving affidavit, but including one eliminates the need for witness testimony during probate. A will without a self-proving affidavit is still valid, but the Register of Wills may require one of the witnesses to appear and testify that they watched you sign the will and that you appeared to be of sound mind. If the witness has died, moved, or cannot be located, probate is delayed while the estate locates proof of execution.
A self-proving affidavit is signed by you and the witnesses in front of a notary at the time the will is executed. It serves as proof that the will was executed properly, and no witness testimony is required. The affidavit adds two minutes to the signing process and prevents delays during probate.
When to Update Your Will
Divorce automatically revokes all provisions in favor of your former spouse under 20 Pa. Cons. Stat. § 2507, but it does not revoke the entire will. If your ex-spouse was named as executor, that designation is void. If your ex-spouse was the primary beneficiary and you did not name contingent beneficiaries, your estate may pass under intestacy to heirs you did not intend. Divorce requires a new will, not reliance on the statutory revocation.
The birth or adoption of a child, the death of a named executor or beneficiary, marriage, significant changes in assets, and relocation to another state all require review. A will that does not account for these changes may not distribute your estate as you intend. For guidance on what happens when there is no will or the will does not control, see our page on intestate succession in Pennsylvania.
Holographic Wills in Pennsylvania
Pennsylvania recognizes holographic wills under 20 Pa. Cons. Stat. § 2502(b). A holographic will is written entirely in your handwriting and signed by you. It does not require witnesses. While valid, holographic wills are vulnerable to challenge on the grounds that the handwriting is not yours, that you lacked capacity when you wrote it, or that you did not intend the document to be your final will.
Holographic wills create probate complications. The court may require handwriting analysis. Beneficiaries may contest the will if the language is ambiguous or if there is any question about your intent. A holographic will may be better than no will, but it is not better than a properly executed formal will.
This page relates to our work in Wills, Estates, Trusts, and Probate. For additional guidance on probate procedures, see Estate Administration and Probate.