Do I Need Probate?

Table of Contents

The Short Answer

Not always. Whether you need to open a formal estate depends on what the deceased person owned, how they owned it, and whether anyone else has a legal claim to those assets. Many families are surprised to learn that some assets pass automatically without probate — and equally surprised to learn that even "small" estates sometimes require a trip to the Register of Wills.

Assets That Skip Probate Entirely

These assets pass directly to the named beneficiary or surviving co-owner regardless of what the will says:

Joint accounts and property with right of survivorship (JTWROS). Bank accounts, brokerage accounts, and real estate held as joint tenants pass automatically to the surviving owner. The key word is "survivorship" — tenants in common do not have this automatic transfer.

Beneficiary designations. Life insurance, retirement accounts (IRAs, 401(k)s), annuities, and payable-on-death (POD) or transfer-on-death (TOD) accounts go directly to the named beneficiary. These designations override the will. If your will says everything goes to your children but your IRA beneficiary form still names your ex-spouse, the ex-spouse gets the IRA.

Trust assets. Property held in a funded revocable living trust passes according to the trust terms without any court involvement.

When Probate Is Required

You need to open an estate at the Register of Wills when the deceased person owned assets solely in their name with no beneficiary designation, no joint owner, and no trust. Common examples: a house titled only in the decedent's name, a bank account with no POD designation, a vehicle titled solely in the decedent's name, and personal property like furniture or valuables.

You also need probate if you need legal authority to act on behalf of the estate — to file a final tax return, deal with creditors, sell property, or handle a wrongful death claim. Short certificates (the documents that prove you're the executor or administrator) can only be obtained by opening a formal estate.

Small Estate Alternatives

Pennsylvania provides two shortcuts for smaller estates:

Small Estate Affidavit (20 Pa.C.S. § 3102). If the entire estate (excluding real estate and certain exempt property) is worth $50,000 or less, the estate can be administered through a simplified petition to the Register of Wills. This avoids some of the more formal requirements of full administration.

Family Exemption (20 Pa.C.S. § 3121). The surviving spouse (or, if none, children residing with the decedent) can claim up to $3,500 in estate property exempt from all claims — including creditors. This is separate from and in addition to the small estate process.

Collecting assets without opening an estate (20 Pa.C.S. § 3101). If the only assets are owed wages, pension payments, or similar small items, the surviving spouse or next of kin may be able to collect directly without any court filing.

Practical Decision Tree

Common Mistakes

Assuming joint ownership exists when it doesn't. Many people say "my parents owned the house together" — but if the deed says "tenants in common" rather than "joint tenants with right of survivorship," the deceased person's share goes through probate.

Ignoring the inheritance tax. Even assets that skip probate are still subject to Pennsylvania inheritance tax. A jointly-held bank account that passes to a child automatically still triggers a 4.5% tax on the amount that exceeded the decedent's original contribution. The tax return (REV-1500) is due within 9 months of death.

Forgetting about creditors. If the deceased person had debts, those creditors have a claim against estate assets — even assets that pass outside probate in some circumstances. Opening a formal estate and publishing notice to creditors starts the clock on the one-year limitation period for claims.

Waiting too long. There's no deadline to open an estate, but the inheritance tax return is due 9 months from the date of death, and the 5% discount for early payment requires filing within 3 months. Waiting costs money.

What Probate Actually Costs

The cost of opening an estate in Bucks County depends on the size of the estate. The Register of Wills probate fee ranges from $150 (estates under $25,000) to $750 (estates over $1 million), plus surcharges of $71.25 (ACP $10 + JCP $41.25 + Law Library $20), publication costs of $325.85 (Bucks County Law Reporter $115 + Bucks County Courier Times $210.85), and short certificate fees of $15 each. Attorney fees for a straightforward estate administration typically run $2,500–$5,000. Our estate cost calculator can give you a more specific estimate.