Estate and Probate Law

What Constitutes a Valid Will in Pennsylvania:

In order for a Will to be valid in Pennsylvania the following must be met – (1) the testator must be 18 years of age or older, (2) the testator must be of sound mind, (3) the testator’s wishes must be in writing (typed or handwritten), and (4) the testator’s signature (or mark) must appear at the end of the writing.  See, 20 Pa.C.S.A. §§ 2501 and 2502.  A writing need not assume any particular form or be couched in language technically appropriate to its testamentary character to take effect as a will.  See, Estate of Logan, 413 A. 2d. 681, 682 (Pa. 1980).  If the instrument is in writing and signed by the decedent at the end thereof and is an otherwise legal declaration of his intention which he wills to be performed after his death, it must be given effect as a will.  See, In re Oerman, 279 A.3d. 1287 (Pa. Super. 2022)(a non-precedential opinion), citing, In re Kauffman’s Estate, 76 A.2d. 414, 416 (Pa. 1950), see also, Estate of Logan, 413 A. 2d. 681, 682 (Pa. 1980).  The form and language of a writing are simply factors to be considered; an informal instrument may be a fully effective will if the language suffices to show testamentary intent.  Oerman, supra, citing, In re Ritchie’s Estate, 389 A.2d. 83, 87 (Pa. 1978).

Claims of Ousted Cotenant under New Jersey Law: 

Issue:   Can one cotenant make claims against the other cotenant for carrying costs of the co-owned property when one cotenant was in possession to the exclusion of the other?  Yes, but equity requires a corresponding credit for the rental value of said cotenant’s sole occupancy.

Discussion:      Generally, a cotenant who has paid operating and maintenance expenses of the property is entitled to an accounting for a pro-rata share from the other cotenant(s).  See, Capital Finance Company of Delaware Valley, Inc. v.  Bell Asterbadi, 942 A.2d 21, 28 (N.J. Super. 2008).  Operating and maintenance expenses include, but are not limited to, charges such as taxes, mortgage, interest and necessary repairs essential to the maintenance of the capital value of the property.  Id.  The possession of said property by one cotenant who makes advances for the benefit of the common estate should not preclude reimbursement by contribution from the other cotenant(s) who share(s) in the benefit by the preservation of the property.  Id.  The cotenant in possession does not have to account to the other cotenant for the use and possession of the property because all tenants in common have a right to occupy all of the property and if one chooses not to do so, that does not give him or her the right to impose an occupancy charge on the other.  Id.

New Jersey Law on Executor’s Compensation:

Under New Jersey Statutes, “where provision is made in a will for specific compensation to a Fiduciary, the compensation shall be deemed full payment for services in lieu of commissions provided by this chapter.”  See, N.J.S.A. 3B:18-3.  New Jersey Statute Annotated 3B:18-8 defines “Fiduciary” as an Executor under a Will of Decedent.  See, N.J.S.A. 3B:18-8.  If no specific provision is set forth in the will, there are several ways a Fiduciary can be compensated by way of statutory commissions; for example, by way of a corpus commission (N.J.S.A. 3B:18-14), by way of an additional commission (N.J.S.A. 3B:18-9) and/or by way of income commission (N.J.S.A. 3B:18-13).  Only Corpus Commission and Additional Commissions are discussed in this Memo as Income Commission applies to a Trustee Fiduciary.

In all respects, to earn the Commission, the Executor must be seeking to effectuate the Decedent’s wishes.  See, In Re Estate of Summerlyn, 743 A.2d. 321 (N.J. Super. 2000).

New Jersey Law on Payment of Attorneys Fees for Services Rendered on Behalf of the Estate and/or the Executor:

The duty of an Administrator and/or Executor is to do what is necessary for the administration of the Estate with the degree of care, prudence, circumspection, and foresight that an ordinary prudent person would employ in matters of his own.  See, In the Matter of the Estate of Risica, 432 A.2d. 549 (N.J. Super. 1981).  For example, pursuant to N.J.S.A. 3B:14-23(q), every Fiduciary shall in the exercise of good faith “execute and deliver agreements, . . . , deeds, notes, receipts and any other instrument necessary or appropriate for the administration of the Estate.  See, N.J.S.A. 3B:14-23(q).  Pursuant to N.J.S.A. 3B:14-23(s), every Fiduciary shall in the exercise of good faith “distribute in kind any property of the estate . . . as provided in Article I of Chapter 23.  See, N.J.S.A. 3B:14-23(s).  However, work which is beyond the ordinary or reasonably expected skill and ability of a Fiduciary (i.e., Administrator/ Executor) may be supplied by an expert retained by the Fiduciary where necessary or advisable and the expert will be paid from the estate.  Id.  Where a Will authorizes the Executor to retain professionals to prepare taxes, an accounting, or provide legal services, said expenses should be paid by or charged to the Estate.  See, In Re Estate of Summerlyn, 743 A.2d. 321 (N.J. Super. 2000), citing, In Re Risica’s Estate, 432 A. 2d. 549 (N.J. Super. 1981).

Distributions from a Supplemental Needs Trust (the Do’s and Dont’s)

  • Do not comingle the trust beneficiary’s money (e.g., from SSI) with trust money (i.e., monies contributed to the Trust should be from third parties – parents, grandparents, relatives, friends, etc.)
  • Distributions of monies from the trust should be for supplemental expenses, only; i.e., extra care above those expenses paid for by SSI and/or MA
  • Distributions should not be used for food, clothing and/or shelter (those expenses should be paid by SSI and/or MA) – otherwise, those distributions may be counted as an income resource.
  • No income from the trust principal should be paid to the trust beneficiary – otherwise, those funds may be counted as an income resource which reduces the SSI/MA Recipient’s governmental benefits
  • Distributions from the trust should not be paid directly to the trust beneficiary; payment should be made to the third-party providing the additional services; for example, third-party providers of educational services, therapy services, transportation services, professional services, phone bills, recreational services or entertainment (keeping in mind that these payments should be for services not covered by any governmental benefits the trust beneficiary would be entitled to).
  • Other services that may be paid for from the trust (again so long as not covered by SSI, MA or any other governmental benefits the trust beneficiary would be entitled to) – special medical equipment, training programs or educational services, rehabilitation services, recreational or occupational therapy, physical therapy, vocational therapy, durable medical needs, telephone equipment, cable television, internet access, dental care, eyeglasses, nonessential dietary needs, travel needs, things that would be excluded resources and do not constitute food, shelter or clothing (minus gifts from parents) (gifts should not be things that could be converted into cash) and spending money (be careful with amounts – large amounts of money would be considered income)


Pursuant to Social Security Income (SSI) and Medical Assistance (MA) regulations regarding eligibility – resources that count towards qualification and/or non-qualification are defined as “things owned by the individual that could be changed to cash and used for food or shelter,” “cash or other liquid assets or any real or personal property that an individual owns and could convert to cash to be used for his or her support and maintenance,” or “if the individual has the right, authority or power to liquidate the property or his or her share of the property.”  See, Article “Understanding Social Security Income,” 2023 Edition, see also, 20 CFR § 416.1201.  Resources.  Under those definitions, A Third-Party Supplemental (Special Needs) Trust should not be counted as a resource; thus, disqualifying a SSI/MA Recipient from receiving his or her government benefits.  Determination of whether a trust is an available resource for SSI/MA eligibility can only be made by evaluating each trust instrument and circumstances surrounding its execution to determine the intent of the Settlor (i.e., the person creating the trust).  See, 55 Pa. Code § 178.7(e), see also, Snyder v. DPW, 556 A.2d. 31 (Pa. Cmwlth. 1989). Generally, the treatment of trusts depends on how the trusts are funded and under what circumstances the individual who is or may be receiving government benefits has access to those funds.