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[26 Pa.B. 665]

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Rule WO401.  Family Exemption.

   As soon as practicable after the grant of letters, the personal representative shall notify the person or persons entitled to the family exemption.

   (a)  Procedure For Personal Property Without Petition.

   (1)  The person claiming the exemption shall file with the personal representative a claim in writing containing the caption of the case, the name of the claimant, the relationship, a brief description of the property claimed, the date of the claim and the signature of the claimant.

   (A)  If the claimant is a minor, the guardian of the minor's estate shall file the claim; or if there is no such guardian, the personal representative without request made shall select for the use and benefit of the minor personal property to the full value to which the minor is entitled.

   (B)  If the claimant is an incapacitated person, the guardian of the estate of the incapacitated person shall select for the use and benefit of the incapacitated person personal property to the full value to which the incapacitated person is entitled.

   (2)  The original claim shall be filed with the clerk.

   (3)  Under this section, credit for the family exemption will be allowed upon confirmation of the account, or upon order of court issued pursuant to a petition filed under the provisions relating to the settlement of small estates. Where the property claimed is other than cash, the court may require evidence of value prior to approval.

   Explanatory Comments: Usually the procedure set forth in Section (a) will be followed. One purpose of the family exemption is to provide immediate funds to a member of the household of the decedent.

   (b)  Procedure By Petition.

   (1)  The procedure for awarding the family exemption shall be by petition in the following cases:

   (A)  When it is desired to distribute the family exemption in advance of the audit to a minor who has no guardian of his estate.

   (B)  When there is a dispute over the valuation of the property retained or claimed.

   (C)  When a claim for property is refused by a personal representative.

   (D)  When the claim is in full or in part out of real estate, or

   (E)  In all other cases where an order of court is required or desired to effect a transfer of the property retained or claimed.

   (2)  The petition shall set forth:

   (A)  The name and current address of the petitioner, and relationship if petitioner is not the claimant.

   (B)  The name, date of death, domicile of the decedent, whether he died intestate or testate, whether letters have been granted and if so, the name and address of the person to whom granted.

   (C)  The name, address at the time of decease of the decedent, and relationship of, the claimant.

   (D)  If the claimant is not the surviving spouse, the names, addresses and legal representatives if any of other possible claimants, and other relevant facts to establish that there are no members of any prior class, and no other members of the claimant's class who have maintained the family relationship and are entitled to make a claim.

   (E)  A description of the property claimed and the gross value thereof. If real estate is claimed, it shall be sufficiently described to identify it accurately, and a list shall be provided of all liens against it.

   (F)  Whether the property claimed was specifically devised or bequeathed by the decedent or otherwise specifically disposed of by him, and if so, a statement that there are no other assets available for the exemption.

   (G)  Whether there is any objection to the claim and if so, by whom.

   (H)  Whether allowance of the claim prior to the audit or confirmation of the account is requested.

   (3)  If the claim is in whole or in part out of real estate, the petition shall be accompanied by a valuation of two appraisers not related to any of the parties, setting forth the fair market value of the property claimed. The appraisers shall state their profession and shall certify that by virtue of their profession they are familiar with values of real estate in the vicinity of the subject property.

   (4)  The petition shall conclude with a prayer for the exemption. When necessary the court shall provide for notice or appraisement of the property or both and shall fix a return day. The following exhibits shall be attached:

   (A)  A copy of the inventory or other evidence of the value of the property claimed.

   (B)  When an automobile is claimed, the certificate of a reputable dealer showing its market value as of the date of death.

   (C)  Proof that notice was given at least ten days prior to presentation of the petition to any person with an adverse interest who does not consent to the prayer of the petition.

   (5)  If no exceptions are filed within ten days to a decree awarding property for the family exemption, absolute confirmation of the decree shall be as of course, whereupon the property claimed shall be transferred and delivered. Where the transferee does not request early distribution, the property may be awarded at the audit of the estate.

   (6)  If exceptions are timely filed to a petition to an appraisement or to a decree awarding property as the family exemption, the court shall hold a hearing to determine the issues and provide for an appropriate decree.

   (7)  When real estate set apart is appraised in an amount in excess of that claimed and the claimant refuses to accept it within the period allowed for exceptions or fails to make payment of the surplus within the time established by law, the court shall order the sale or other appropriate disposition of the property.

Rule WO402.  Allowance to Surviving Spouse of Intestate Out of Real Estate.

   Proceedings regarding allowance to the surviving spouse of an intestate out of real estate shall follow the local rules for awarding the family exemption when the claim is in full or in part out of real estate.

   Explanatory Comments: This rule exists solely for satisfying the requirements of Supreme Court Orphans' Court Rule 12.2.

Rule WO403.  Specific Performance.

   (a)  Preliminary Order. Upon presentation of a petition for specific performance, the court shall award a citation directed to the party failing or refusing to perform the contract; and further, in the case of real estate, the court will make an order directing the clerk to forward to the Prothonotary of the Court of Common Pleas wherein the real estate lies, a certificate showing the proceeding as required by 20 Pa.C.S.A. § 3390(c), that the same may be entered in the appropriate docket.

   (b)  Notice. Notice of the filing of the petition shall be given immediately upon filing the same to all parties interested as heirs, devisees or legatees of the decedent or to such persons as the court may direct. Such notice may be given personally or by certified mail.

   (c)  Default of Answer - Decree. After service of the citation and notice, if no answer is filed and it appears that the facts are sufficient in equity, the court will decree specific performance of the contract.

   (d)  Bond. When it appears that the bond entered is not sufficient to cover the transaction, the court may require additional bond.

Rule WO404.  Distribution in Kind.

Personal Property

   (a)  When distribution in kind of personal property is to be made by court order, and the parties having an interest in the particular property or its proceeds agree as to which of them shall have the property at its inventory or other agreed valuation, the personal representative shall state these facts in the petition for distribution.

   (b)  In cases where the personal property has a readily ascertainable market value and no arrangement for another distribution is set forth in the petition for distribution, the court will distribute such property to all those in the proportionate shares as their interest appears, unless the property cannot be divided into proper shares. In the latter case, the court may award undivided interests in the property to the persons as their interests may appear, or the court may direct the personal representative to sell so much thereof as cannot be so divided.

   (c)  In cases where the personal property does not have a readily ascertainable market value, the petition shall have attached thereto an election to take in kind, consented to by the other parties interested in the fund for distribution.

   (d)  When the personal property to be distributed in kind has no readily ascertainable value and the parties in interest do not agree to a distribution, the court may direct an auction thereof upon ten days notice, personally or by mail, to parties in interest, at such a time and place as the court may direct. The court may restrict the bidding to parties in interest or direct a public auction as equity may require.

Rule WO405.  Partition.

   (a)  A petition for partition shall include:

   (1)  The name, residence and date of death of the decedent;

   (2)  Whether the decedent died testate or intestate, in whole or in part, and a copy of the will, if any;

   (3)  A description, giving the size and location, of the property to be partitioned;

   (4)  The estimated value of the property

   (5)  Liens and charges to which the property is subject and rents due from tenants thereof;

   (6)  Whether the property has previously been partitioned or valued for partition;

   (7)  The names, addresses and relationship of those interested in the land to be partitioned, and the extent of the interest of each of such persons;

   (8)  If the interest of any party is created by a recorded deed or will, a reference to such record;

   (9)  A reference to the number and term of appointment of any fiduciaries representing any of the parties;

   (10)  Whether any of the parties are absentees or presumed decedents, and if so, their representatives;

   (11)  Whether there is a need to appoint guardians or trustees for interests not represented;

   (12)  The names of any co-tenants who have collected rents or owe rent for any of the premises, and the amounts thereof, if known;

   (13)  Signed consents or joinders, if any;

   (14)  A request for a citation upon the parties in interest who have not joined as petitioners to show cause why an inquest in partition should not be granted;

   (15)  A proposed preliminary order.

   (b)  Where it appears from the petition that the address of any party is unknown to the petitioner, the citation shall be served by publication for three successive weeks in the Westmoreland Law Journal and in a newspaper of general circulation published at or near the location of the last known residence of the party whose present address is unknown. If the name of a party is unknown, or if there is no last known address, the newspaper where publication is made shall include a newspaper of general circulation published at or near the location of the property to be partitioned. The court may direct such additional means, if any, as the court deems reasonably necessary to effect notice to such parties.

   (c)  If the court determines that there shall be a partition because of a default or admission, or after a hearing on the petition, the court shall enter an order directing partition which shall set forth the names of all the co-tenants and the nature and extent of their interests in the property. Further proceedings shall generally be in conformity with the Pa. R.C.P. No. 1558, et seq. All required court filings shall be with the clerk.

   (d)  If rents are determined to be due from or to any co-tenants, equitable adjustment thereof shall be included in the partition proceedings.

   (e)  Costs, compensation of appraisers, compensation of experts authorized by the court, any master's fee, and counsel fees shall be allocated in such amount and manner as the court shall deem equitable.

   Explanatory Comments: See Supreme Court Orphans' Court Rules Rules 5.1(c) and 12.8.

Rule WO406.  Small Estates.

   (a)  Personalty.

   (1)  When any person domiciled in Westmoreland County, Pennsylvania, dies owning property (exclusive of real estate and of wages, salary or any accrued vacation benefits or pension payable under 20 Pa.C.S.A. § 3101, but including personal property claimed as the family exemption) of a gross value not exceeding $25,000.00, any party in interest may present a petition for the distribution of the property. The petition shall set forth:

   (A)  the name, date of death and domicile of the decedent, whether testate or intestate, and whether letters have been granted.

   (B)  if letters have been granted, to whom, the date of grant of letters, the date of the first complete advertisement of letters, if applicable, and the amount of bond, if any.

   (C)  the names and relationships of all beneficiaries under the will, if any;

   (D)  the names of the surviving spouse and next of kin if decedent died intestate as to any personalty;

   (E)  the names of any persons entitled to distribution who are not sui juris, with the names of their trustees or guardians and a reference to their appointment;

   (F)  when a family exemption is claimed out of personalty and has not previously been claimed:

   (i)  by whom the exemption is claimed;

   (ii)  the name of the surviving spouse, if any, whether the family relationship was maintained, and whether spousal rights have been forfeited;

   (iii)  if the spouse is not the claimant, the names of such children as were members of the same household as the decedent at his death, indicating any who are not sui juris, or if there are no such children, the names of the parent or parents of the decedent who were members of the same household as the decedent at his death;

   (iv)  the names of any other children, heirs or beneficiaries not previously identified and the legal representatives, if any, of all not sui juris;

   (v)  a description of the property claimed and the gross value thereof;

   (vi)  whether there is any objection to the claim, and if so, by whom;

   (G)  an itemized list of the personal property owned by the decedent at date of death, and the total value thereof (the itemized list may be attached as an exhibit, with only the total listed here);

   (H)  an itemized statement of all disbursements made prior to filing the petition, specifying the date, amount, payee and purpose of each disbursement, and the total of all disbursements (the itemized list may be attached as an exhibit, with only the total listed here);

   (I)  an itemized statement of all unpaid administrative expenses, preferred and other debts, and taxes, including those due the Commonwealth of Pennsylvania, together with the total thereof (the itemized list may be attached as an exhibit, with only the total listed here);

   (J)  an itemized list of all claims not admitted, and the total thereof (the itemized list may be attached as an exhibit, with only the total listed here);

   (K)  the names of all unpaid creditors whose claims are admitted, and of all heirs or beneficiaries not joining in or consenting to the petition.

   (2)  Exhibits shall be attached in the following order:

   (A)  the consent or joinder of all heirs, beneficiaries, creditors, sureties on any administrator's bond, and any others interested in the decedent's estate, who consent to the granting of the petition;

   (B)  a copy of the will, if any;

   (C)  proof of advertising of letters, if applicable;

   (D)  a receipt or statement from the Agent of the Commonwealth showing that the Pennsylvania Inheritance Tax has been paid in full, or consent to the granting of the petition;

   (E)  when an automobile is claimed as part or all of the family exemption, the certificate of a dealer or dealer's employee showing its market value as of the date of death;

   (F)  Itemized lists, if not included in the body of the petition.

   (3)  The petition shall be accompanied by a proposed decree, which specifically sets forth the proposed distribution.

   (4)  Upon presentation of the petition, the court may enter a decree without notice or with such notice or citation as the court shall direct.

   Cross References: 20 Pa.C.S.A. § 3102.

   (b)  Personalty and realty.

   (1)  When any person domiciled in Westmoreland County, Pennsylvania, dies owning real and personal property of a gross value not exceeding $25,000.00, the personal representative, after the expiration of one year from the date of the first complete advertisement of the grant of letters, may present a petition to the court seeking approval of the representative's administration of the estate, requesting distribution of the estate assets, and further requesting discharge of the representative.

   (2)  The petition shall set forth the information required in WO406(a). In addition, the petition shall include in the appropriate paragraph:

   (A)  the items of real property owned by decedent and their value at the date of death;

   (B)  whether the decedent died intestate as to any real property;

   (C)  as an exhibit, an account showing the administration and any distribution theretofore made of the estate;

   (3)  Upon presentation of the petition, the court shall direct ten days' written notice to be given to all known parties in interest who have not consented thereto that unless exceptions are filed to said petition and the account annexed, within thirty days of the date of the filing thereof, the court will confirm said account, make distribution as requested, and may discharge the petitioner and any surety from future liability.

   (4)  Any final order shall provide that it will not become absolute for ten days.

   Cross References: See 20 Pa.C.S.A. § 3531. When a family exemption is claimed out of real estate, a petition must be presented under 20 Pa.C.S.A. § 3123, and WO401, unless all parties in interest agree in writing to the valuation at which such real estate is to be awarded. See Supreme Court Orphans' Court Rule 12.

Rule WO051.  Medical Testimony.

   (a)  It is presumed that the testimony of physicians, psychologists and other medical professionals may be taken in the courtroom by speaker telephone in all guardianship cases, unless objections are filed at least ten days before the hearing.

   (b)  When an emergency guardianship petition is presented, the testimony of a physician or psychologist shall be taken in the courtroom by speaker telephone unless otherwise directed by order of court.

   (c)  All documents in a foreign language shall be translated into English. The translation shall be typed and a certificate of accurate translation shall be attached.

   Cross References: See 20 Pa.C.S.A. § 5518 for provisions regarding testimony by qualified professionals. See 20 Pa.C.S.A. § 5513 regarding emergency guardianships

Rule WO502.  Petition.

   (a)  In addition to the allegations required by statute or Supreme Court Rule, all petitions for appointment of guardian shall set forth:

   (1)  Whether or not the alleged incapacitated person is a fiduciary in any capacity.

   (2)  Whether the alleged incapacitated person was ever a member of the Armed Services of the United States, or is receiving any benefits from the United States Veterans Administration, or its successor.

   (3)  Whether any other court has ever assumed jurisdiction in any proceeding to determine the incapacity of the alleged incapacitated person.

   (b)  The notice of the petition and hearing shall be attached as a cover sheet to a citation and petition when served upon the alleged incapacitated person, and shall be in the form included with the forms suggested for use in the orphans' court or in such form as may be adopted by the Supreme Court of Pennsylvania.

   (c)  Unless the court directs otherwise, a copy of the notice and petition shall be given to those persons entitled to notice under 20 Pa.C.S.A. § 5511(a) by certified mail, return receipt requested. Proof of service shall be filed with the court at the hearing.

   Cross References: See 20 Pa.C.S.A. § 5511(e) for current required allegations for petitions. Subparagraph (1) is taken from prior Rule WO19(a)(1). Subparagraph (2) is taken from Supreme Court Orphans' Court Rule 14.2(a)(5). Subparagraph (3) is taken from Supreme Court Orphans' Court Rule 14.2(a)(9).

   See 20 Pa.C.S.A. § 5511(a) regarding the requirement of notice. See Form Guardianship-1 for the form of notice.

Rule WO503.  Petition to Invade Principal Assets.

   A Petition to Invade Principal Assets shall be presented to the court in all situations where the guardian intends to invade the principal assets of an incapacitated person or minor. Such Petition to Invade Principal Assets shall contain, at minimum, the following averments of fact:

   (a)  In the case of incapacitated persons:

   (1)  Name, age and residence of the incapacitated person.

   (2)  A reference to the original date of the guardian's appointment.

   (3)  Whether the guardian is bonded and, if so, for what amount.

   (4)  An itemized listing of the assets of the incapacitated person.

   (5)  An itemized listing of the income and expenses of the incapacitated person.

   (6)  A listing of the names and addresses of all creditors, and the amount due each.

   (7)  The purpose for the proposed invasion of principal.

   (8)  Whether any prior Petitions to Invade Principal Assets have been presented.

   (9)  In those cases where the guardianship estate is expected to be insolvent, that the creditors of the incapacitated person have been notified of the presentation of the Petition to Invade Principal Assets.

   (10)  The maximum amount estimated to be needed per month or per year, and the time period during which such invasion will be necessary (e.g., $500.00 per month for the period January 1, 1995 through December 31, 1996).

   (b)  In the case of minors with court-appointed guardians:

   (1)  Name, age and residence of the minor and the person with whom the minor resides.

   (2)  A reference to the original date of the guardian's appointment.

   (3)  Whether the guardian is bonded and, if so, for what amount.

   (4)  Names and residences of the living parents and their incomes, and whether their incomes are sufficient to support the minor properly.

   (5)  An itemized listing of the assets of the minor.

   (6)  An itemized listing of the income of the minor.

   (7)  Whether there are other funds (e.g., current beneficiary of a trust or estate) available for the care, maintenance, education or funeral expenses of the minor or other persons for whom an invasion of principal is requested.

   (8)  A listing of the names and addresses of all creditors, and the amount due each.

   (9)  The purpose for the proposed invasion of principal.

   (10)  Whether any prior Petitions to Invade Principal Assets have been presented.

   (11)  That the next-of-kin of the minor have been notified of the presentation of the Petition for Allowance, if directed by the court.

   (12)  The maximum amount estimated to be needed per month or per year, and the time period during which such invasion will be necessary (e.g., $500.00 per month for the period January 1, 1995 through December 31, 1996).

   Cross References: See 20 Pa.C.S.A. § 5536(a), which permits the expenditure of income for the care and maintenance of an incapacitated person without the necessity of court approval, but which requires court authorization for the expenditure of principal.

   See 20 Pa.C.S.A. § 5164, which permits the expenditure of income for the care, maintenance and education of a minor without the necessity of court approval, but which requires court authorization for the expenditure of principal.

   Explanatory Comments: The time period for which an invasion of principal may be requested may generally not exceed one (1) year.

   Under 20 Pa.C.S.A. §§ 5164 and 5536(a), court approval is required to use income for anyone other than the minor or incapacitated person. In such cases, a petition in essentially the same form as provided by this rule should be filed.

Rule WO504.  Petition for Sale of Assets.

   A Petition for Sale of Assets shall be presented to the court in all situations where the guardian intends to sell real or tangible personal property of an incapacitated person. Such Petition for Sale of Assets shall contain, at minimum, the following averments of fact:

   (a)  A reference to the original date of the guardian's appointment.

   (b)  Whether the guardian is bonded and, if so, for what amount.

   (c)  An itemized listing of the assets of the incapacitated person.

   (d)  An itemized listing of the income and expenses of the incapacitated person.

   (e)  The reason for the proposed sale and the proposed distribution of proceeds. If the property is real estate, (i) whether the property is expensive to maintain; (ii) whether the property is occupied and/or generating income; (iii) whether the guardian needs the proceeds for the care of the incapacitated person.

   (f)  If the purpose for the proposed sale is the payment of debts, a listing of the names of all creditors, and the amount due each.

   (g)  If the property is tangible personal property, one appraisal shall be attached. If the property is real estate, the petition shall be accompanied by a valuation of two appraisers not related to any of the parties, setting forth the fair market value of the property claimed. The appraisers shall state their profession and shall certify that by virtue of their profession, they are familiar with values of real estate in the vicinity of the subject property.

   (h)  If the property is the incapacitated person's residence,

   (1)  That the incapacitated person will not be returning to the property to live. (Indicate where the incapacitated person is currently living, i.e., nursing home, personal care home, etc.)

   (2)  If a private sale, that the price is greater than could be obtained at a public sale. If not, or if the price is less than the appraisal, indicate whether a commission is being charged.

   (i)  Notice of the presentation of the Petition for Sale of Assets shall be given to all next of kin of the incapacitated person, whose written consents to the sale are not attached.

   (j)  The proposed decree shall contain a provision regarding the posting of bond.

   Cross References: See Rule 12.10 of the Supreme Court Orphans' Court Rules regarding sales of property.

   See the 1949 Official Comment to 20 Pa.C.S.A. § 5521, which discusses 20 Pa.C.S.A. §§ 5151 and 5155 and the concerns regarding the sale of property.

Rule WO505.  Petition for Compromise of Claim.

   A Petition for Compromise of Claim shall be presented to the court in all situations where the guardian proposes to compromise a claim by or against an incapacitated person. Such Petition for Compromise of Claim shall contain, at minimum, the following averments of fact:

   (a)  A reference to the original date of the guardian's appointment.

   (b)  Whether the guardian is bonded and, if so, for what amount.

   (c)  An itemized listing of the assets of the incapacitated person.

   (d)  An itemized listing of the income of the incapacitated person.

   (e)  A listing of the names and addresses of all creditors, and the amount due each.

   (f)  A concise description of the claim which is proposed to be compromised.

   (g)  Whether any prior Petitions for Compromise of Claim have been presented.

   (h)  That the next-of-kin of the incapacitated person have been notified of the presentation of the Petition for Compromise of Claim.

   (i)  In those cases where the guardianship estate is expected to be insolvent, that the creditors of the incapacitated person have been notified of the presentation of the Petition for Compromise of Claim.

   Cross References: See 20 Pa.C.S.A. § 5521(b), relating to the guardian's powers, duties and liabilities.

   See Pa. R.C.P. No. 2051, et seq., for the settlement procedures applicable to actions commenced in the civil division.

Rule WO601.  Jurisdiction.

   (a)  The following petitions for approval of settlement shall be brought before the orphans' court when suit has not been commenced in the civil division:

   (1)  Petition to Compromise and Settle Minor's Action;

   (2)  Petition to Compromise and Settle an Incapacitated Person's Action; and

   (3)  Petition to Compromise and Settle Wrongful Death and Survival Action.

   (b)  Upon receipt of a petition, the court may, at its discretion, grant the petition as presented, request additional information from any party, or order testimony to be taken on the petition.

   Cross References: With regard to wrongful death and survival actions, See 42 Pa.C.S.A. § 8301(b) and 20 Pa.C.S.A. §§  2101-2104.

Rule WO602.  Petition to Compromise and Settle Minor's Claim.

   A Petition to Compromise/Settle a Minor's Claim shall contain, at minimum, the following averments of fact:

   (a)  Description of the factual circumstances of the case. These should include the date of the accident/injury, how the accident/injury occurred, the age of the minor at the time of the accident/injury, and identification of the defendant. If the case involves an automobile accident, the accident report should be attached.

   (b)  Type of injury suffered. Medical documentation (e.g. hospital records or a physician's report) should be attached to the Petition in order to advise the court of the extent and effect of the injuries. If the medical documentation indicates there are residual effects, the Petition should refer to the specific portions of the medical documentation which contain such opinions.

   (c)  Medical expenses incurred. If any portion of the medical expenses is to be deducted from the minor's share of the settlement, the Petition should contain an affirmation that the parents/guardians will not be reimbursed for such expenses from any other source.

   (d)  Amount and terms of the proposed settlement. The Petition should clearly identify whom the attorney bringing the Petition represents (i.e., the insurance company or the parent/guardian of the minor).

   (e)  Statement regarding the efforts made to secure the best settlement. Where appropriate, the Petition should inform the court whether there is a question of liability and should briefly address any legal/factual issues which may impede successful litigation.

   (f)  An affirmation by petitioner's counsel that the settlement is the best settlement that could be obtained. (Note: This could also be in the form of an attached affidavit.)

   (g)  The attorney fee arrangement. A copy of the written fee agreement must be attached. In structured settlements, the fee must be based on the present value of the annuity.

   (h)  A list of any other expenses which will be deducted from the minor's share of the settlement (e.g. costs advanced for medical reports, hospital records, filing fees, etc.).

   (i)  The exact portion the minor is to receive.

   (j)  The proposed order should provide in detail the proposed distribution of funds. The proposed distribution shall conform to the distribution procedures used in the civil division, under the Pennsylvania Rules of Civil Procedure.

   Cross References: All petitions must meet the basic requirements established by WO107.

   Under Pa. R.C.P. Nos. 2039 and 2206, the following distribution procedures are used in the civil division.

   1.  Pursuant to Pa. R.C.P. No. 2039(b), the court shall order the proceeds paid to the guardian of the estate of the minor.

   2.  If there is no court-appointed guardian of the estate and the amount is not more than $10,000, Pa. R.C.P. No. 2039(b)(1) provides that the court may (but is not obligated to) release the proceeds directly to ''the guardian of the person or to the natural guardian or to the person or agency by whom the minor is maintained or to the minor''.

   3.  If there is no court-appointed guardian of the estate and the amount is more than $10,000, Pa. R.C.P. No. 2039(b)(2) requires that the proceeds be deposited in a federally insured savings account - in the minor's name -with a stipulation that no withdrawals can be made until the child reaches the age of eighteen (18) except upon prior order of court.

   4.  The order must include a provision that proof of the sequestered account shall be promptly filed of record.

   Explanatory Comments: Despite the discretionary language contained Pa. R.C.P. No. 2039(b)(1), the court generally does not release the proceeds directly to the minor or guardian. Except in cases involving extremely small damages or unique circumstances, the court routinely requires that the funds be deposited in a federally insured savings account in the minor's name with a stipulation that no withdrawals can be made until the child reaches the age of eighteen (18) except upon prior order of court.

Rule WO603.  Petition to Compromise and Settle Incapacitated Person's Claim.

   A Petition to Compromise/Settle an Incapacitated Person's Claim shall contain, at minimum, the following averments of fact:

   (a)  Description of the factual circumstances of the case. These should include the date of the accident/injury, how the accident/injury occurred, the age of the incapacitated person at the time of the accident/injury, and identification of the defendant. If the case involves an automobile accident, the accident report should be attached.

   (b)  Type of injury suffered. Medical documentation (e.g. hospital records or a physician's report) should be attached to the Petition in order to advise the court of the extent and effect of the injuries. If the medical documentation indicates there are residual effects, the Petition should refer to the specific portions of the medical documentation which contain such opinions.

   (c)  Medical expenses incurred. If any portion of the medical expenses is to be deducted from the incapacitated person's share of the settlement, the Petition should contain an affirmation that the guardian will not be reimbursed for such expenses from any other source.

   (d)  Amount and terms of the proposed settlement. The Petition should clearly identify whom the attorney bringing the Petition represents (i.e., the insurance company or the guardian of the incapacitated person).

   (e)  Statement regarding the efforts made to secure the best settlement. Where appropriate, the Petition should inform the court whether there is a question of liability and should briefly address any legal/factual issues which may impede successful litigation.

   (f)  An affirmation by petitioner's counsel that the settlement is the best settlement that could be obtained. (Note: This could also be in the form of an attached affidavit.)

   (g)  The attorney fee arrangement. A copy of the written fee agreement must be attached. In structured settlements, the fee must be based on the present value of the annuity.

   (h)  A list of any other expenses which will be deducted from the incapacitated person's share of the settlement (e.g. costs advanced for medical reports, hospital records, filing fees, etc.).

   (i)  The exact portion the incapacitated person is to receive.

   (j)  The proposed order should provide in detail the proposed distribution of funds. The proposed distribution shall conform to the distribution procedures used in the civil division, under the Pennsylvania Rules of Civil Procedure.

Rule WO604.  Petition to Compromise and Settle Wrongful Death and Survival Action.

   A Petition to Compromise/Settle a Wrongful Death and Survival Action shall contain, at minimum, the following averments of fact:

   (a)  Description of the factual circumstances of the case. These should include the date of the accident/injury, how the accident/injury occurred, the age of the decedent at the time of the accident/injury, and identification of the defendant. If the case involves an automobile accident, the accident report should be attached.

   (b)  Amount and terms of the proposed settlement. The Petition should clearly identify whom the attorney bringing the Petition represents (i.e., the insurance company or the heirs/beneficiaries of the decedent).

   (c)  Statement regarding the efforts made to secure the best settlement. Where appropriate, the Petition should inform the court whether there is a question of liability and should briefly address any legal/factual issues which may impede successful litigation.

   (d)  An affirmation by petitioner's counsel that the settlement is the best settlement that could be obtained. (Note: This could also be in the form of an attached affidavit.)

   (e)  The attorney fee arrangement. A copy of the written fee agreement must be attached. In structured settlements, the fee must be based on the present value of the annuity.

   (f)  A list of any other expenses which will be deducted from the heirs'/beneficiaries' share of the settlement (e.g. costs advanced for medical reports, hospital records, filing fees, etc.).

   (g)  A statement as to whether the plaintiff's decedent died intestate or with a will, and if a will was in existence, the effect of the will upon the proposed monetary distribution between wrongful death and survival actions. If a will exists, a copy must be attached as an exhibit to the Petition.

   (h)  The exact amount of the wrongful death portion of the settlement each of the wrongful death beneficiaries is to receive.

   (i)  Dependency. Whether the parties proposed to receive funds from the wrongful death portion of the settlement were dependents of the decedent.

   (j)  Survival. How long the decedent survived after the accident.

   (k)  Notice. That notice of the presentation of the Petition has been given to all of the beneficiaries named under the decedent's will, if the decedent died testate, and to the decedent's intestate heirs, whether the decedent died testate or intestate.

   (l)  The proposed order should provide in detail the proposed distribution of funds.

Rule WO605.  Petitions for Allowance.

   (a)  All withdrawals from a minor's account require a Petition for Allowance.

   (b)  Petitions for Allowance shall contain, at minimum, the following averments of fact:

   (1)  The facts and circumstances surrounding the origination of the minor's fund.

   (2)  A chronological statement of all prior petitions for allowance, including the reasons therefor, the amounts thereof, and the disposition.

   (3)  The age of the minor at the time the fund was created and the minor's present age.

   (4)  The original amount of the minor's funds and the present balance of same.

   (5)  The circumstances and reasons supporting the petition for allowance.

   (c)  All Petitions for Allowance shall be accompanied by:

   (1)  A proposed Order.

   (2)  A copy of the original Petition for Compromise and the Order of Distribution.

   (3)  Copies of all prior petitions for allowance and the orders with respect to same.

   (4)  Substantiating documentation to support the petition for allowance.

   (5)  A consent filed by the petitioner.

   Explanatory Comments:  The court recognizes the parents' legal obligation to support and care for their child. Accordingly, when withdrawal from a minor's account is requested, the court will generally not permit the minor's funds to be used for routine parental obligations.

[Pa.B. Doc. No. 96-209. Filed for public inspection February 16, 1996, 9:00 a.m.]



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