One of the major goals of the Pennsylvania Uniform Trust Act (Act of July 7, 2006, No. 98 of 2006) was to conform the laws relating to revocable trusts to the laws relating to wills and decedent’s estates. The chart below is an adaptation of a chart originally created by Edward M. Watters III, and it shows both the similarities and differences between these two different types of documents and the interpretation and administration of them. (All section references are to the Probate, Estates and Fiduciaries Code, Title 20 of the Pennsylvania Consolidated Statutes.)
Wills v. Revocable Trusts
| Wills | Revocable Trusts | |
|---|---|---|
| Who may make? | Anyone 18 or more years of age who is of sound mind. (§ 2501) | Same as for will. (§ 7751) |
| Formalities | Written and signed at the end. (§ 2502) | Written and signed. (§§ 7731 and 7732) |
| Execution in another jurisdiction | Valid if valid under law were testator was domiciled, or in which testator died. (§ 2504.1) | Valid if valid under law where executed or under law where (1) settlor was domiciliary, resident, or national, (2) a trustee was a domiciled or had a place of business, or (3) any trust property was located. (§ 7733) |
| Filing | Filed for probate with Register of Wills after death and upon testimony of two witnesses (§ 3132.1). | Not probated; filed with Orphans’ Court if there is a contest or accounting. |
| Notices | After probate, notice to spouse, children, and beneficiaries. (Pa. R.O.C.P. 10.5) | After death, notice to personal representative, spouse, children, and each current beneficiary. (§ 7780.3(c)) |
| Grounds for contest | Forgery, mistake, lack of capacity, fraud, and undue influence. (Case law) | Same as for contesting a will. (§ 7754(c)) |
| Time for contest | One year from probate. (§ 908) | One year after notice under § 7708.3(c). (§ 7754(b)) |
| How to contest | Before probate, by caveat filed with Register; after probate, by appeal to Orphans’ Court. (§ 908) | By petition in the Orphans’ Court. (§ 7754(a)) |
| Rules of construction | Case law and statute (§ 2514). | Same as for testamentary trusts. (§ 7710.2) |
| Claims of decedent’s creditors | Property of estate is subject to claims of decedent’s creditors. | Creditors have same rights as against estate, except that estate shall be applied first to claims. (§ 7755(a)) |
| How claims are made | By notice to personal representative (i.e., executor or administrator). (§ 3384) | By notice to personal representative (who is required to give notice to trustee within 20 days) or, if none is appointed, to trustee in manner provided by § 3384. (§ 7755(b)) |
| Time for claims | A personal representative may make distributions one year after first advertisement of grant of letters. (§ 3532) | Same as for personal representative or, if none appointed within 90 days after death, trustee may advertise to begin one year period for claims. (§ 7755(c)) |
