Local Orphans' Court Rules
[39 Pa.B. 5898]
[Saturday, October 10, 2009]
And Now, this 28th day of September 2009, the Blair County Local Orphans' Court Rules, as indicated, shall become effective thirty (30) days after publication in the Pennsylvania Bulletin. The Court Administrator is directed to:
1. File seven (7) certified copies of the within Order and Orphans' Court Local Rules with the Administrative Office of Pennsylvania Courts;
2. Forward two (2) certified copies and a disk containing the text of the local rules to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin;
3. Forward one (1) certified copy to the Civil Procedural Rules Committee of The Supreme Court of Pennsylvania;
4. Forward one (1) copy to the Blair County Legal Bulletin for publication.
Copies shall be kept continuously available for public inspection in the Office of the Blair County Prothonotary, the Office of the Court Administrator and the Blair County Law Library.
HONORABLE JOLENE GRUBB KOPRIVA,
TABLE OF CONTENTS
RULE 1 JUDGES—LOCAL RULES RULE 2 CONSTRUCTION AND APPLICATION OF RULES RULE 3 PLEADING AND PRACTICE RULE 4 COMPUTATION OF TIME RULE 5 NOTICE RULE 6 ACCOUNTS AND DISTRIBUTION RULE 7 EXCEPTIONS RULE 8 AUDITORS AND MASTERS RULE 9 OFFICIAL EXAMINERS RULE 10 REGISTER OF WILLS RULE 11 JURY TRIALS RULE 12 SPECIAL PETITIONS RULE 13 DISTRIBUTION; SPECIAL SITUATION RULE 14 INCOMPETENTS' ESTATES RULE 15 ADOPTIONS RULE 16 PROCEEDINGS PURSUANT TO SECTION 3206 OF THE ABORTION CONTROL ACT RULE 17 SHORT TITLE
Rule 1.2.1. Local Rules.
(a) These rules shall be known as the Blair County Orphans' Court Rules and shall be cited as B.C.O.C.R.
(b) These Blair County Orphans' Court Rules, in conjunction with the Supreme Court Orphans' Court Rules and all Acts of Assembly regulating the practice and procedure in the Orphans' Court, shall regulate the practice and procedure in the Orphans' Court Division of this Court.
(c) The Blair County Local Rules (B.C.L.R.) for the Court of Common Pleas of the Twenty-fourth Judicial District shall, except where inconsistent with these rules, apply in Orphans' Court cases.
Note: See Pa.O.C. Rule 3.1.
CONSTRUCTION AND APPLICATION OF RULES
Rule 2.1.1. Notes.
Notes and footnotes in these rules are for informational purposes and shall not be considered as part of these rules.
Rule 2.3.1. Definitions.
When used in these rules, the following words shall have the meanings ascribed to them in this rule, unless the context clearly indicates otherwise.
''Exception'' means a disagreement with any decree, adjudication, confirmation, or other decision of this Court or any act of an auditor, master, or official examiner appointed by this Court.
''Objection'' means a disagreement with any matter relating to the family exemption, surviving spouse's allowance, or with any act or omission of a fiduciary or as otherwise defined or permitted by these rules.
''PEF Code'' means the ''Probate, Estates and Fiduciaries Code,'' 20 Pa.C.S. § 101, et seq.
Note: For local rules applicable to exceptions, see B.C.O.C.R. 7.1.1 and 7.1.2. The Court may disregard any misnomer of an exception or objection, and no such misnomer shall be grounds for dismissal. See Pa.O.C.R. 2.1 and Pa.R.C.P. 126.
PLEADING AND PRACTICE
Rule 3.2.1. Pleadings. Limitation.
The pleadings in matters before this Court shall be limited to a petition, an answer, new matter, a reply to new matter, preliminary objections, and an answer to preliminary objections.
Rule 3.2.2. Pleadings. Failure to Answer.
(a) Failure to Answer. If the respondent fails to answer a petition as required by the Citation, all material averments of fact in the petition shall be taken as admitted and the Court may, at any time after the return day and upon proof of service of the Citation upon the respondent at least ten (10) days prior to the return date, upon motion, enter a decree granting the prayer of the petition or such other relief deemed appropriate by the Court.
(b) Failure to Reply to New Matter. If the petitioner fails to reply to new matter contained in an answer, the averments of fact set forth as new matter shall be deemed admitted and the case will be at issue.
Rule 3.4.1. Form of Petition. Petitions and Motions.
(a) Every original petition or motion filed shall set forth in its first paragraph the citation of any statute, rule of court, or other authority relied upon to justify the relief requested.
(b) Every petition or motion filed shall state with particularity the grounds on which it is based and shall be accompanied by a proposed order which, if approved by the Court, would grant the relief sought by the pleading. Every response in opposition to a motion or petition shall be accompanied by a proposed order which, if approved by the Court, would deny or amend the relief sought by the pleading.
(c) The Court may direct that a Rule or Citation be issued, or may schedule a hearing or conference as the issues in the case may dictate.
Rule 3.4.2. Form of Petition. Exhibits.
(a) There shall be attached to all petitions as exhibits the originals or copies of all wills, codicils, agreements, and other written instruments relied upon. If the petitioner is unable to attach a necessary exhibit, he shall so state in his petition together with the reason.
(b) The signature of an attorney to a petition shall constitute a certification by that attorney that all copies of written or printed instruments, records, or documents which are not certified or authenticated are true and correct copies of the original.
Rule 3.4.3. Form of Petition. Consents.
(a) All petitions shall aver that all parties in interest are petitioners, or that consents or joinders of all necessary parties are attached. If the petitioner is unable to attach a necessary consent or joinder, he shall so state in his petition together with the reason.
(b) Whenever a party other than a petitioner desires to consent to or join in the prayer of a petition, there shall be appended to the petition a written ''Consent'' or ''Joinder'' signed by the party in the following form:I, ______ , having read and considered the contents of the foregoing petition, do herewith waive the benefit of all requirements of notice of the presentation, or service upon me, of said petition, do authorize the Court to note my general appearance in said proceeding as though I had appeared personally or by counsel, do herewith waive all objections to the Court's jurisdiction over my person, and I do herewith consent to or join in [add specifics of prayer for relief]
All ''Consents'' and ''Joinders'' shall be signed by at least two (2) witnesses.
Rule 3.5.1. Mode of Proceeding. Citation. Proof of Service.
(a)(1) Personal Service. Proof of personal service of a citation shall conform to the provisions of § 766 of the P.E.F. Code, The return shall set forth the date, time, place and manner of service and that true copies of the citation, petition, and preliminary order awarding the citation were handed to the respondent.
(2) Service by Registered or Certified Mail. Proof of service of a citation by registered or certified mail shall be by affidavit of the person making service, which shall set forth that true and correct copies of the citation, petition, and preliminary order awarding the citation were mailed to the respondent postage prepaid, return receipt requested, the date of mailing, the address to which notice was mailed and that attached to the return is the signed return receipt card which accompanied the letter.
(3) Service by Publication. Proof of service of a citation by publication shall consist of proofs of publication together with affidavits by the publisher.
(b) Except as otherwise provided, a return of notice shall be filed with the Clerk on or before the date set for the occurrence of the event of which notice has been given.
Rule 3.5.2. Method of Proceeding. Hearings.
(a) When an issue of fact is raised by the pleadings, including preliminary objections to jurisdiction, any party may move for a hearing, and the Court, in its discretion, will hear the matter, or refer the same to a master to hear the testimony and to report his findings of fact, conclusions of law and recommendations to the Court.
Note: See PEF Code § 751.
(b) When the pleadings are closed, any party in interest may move the Court for disposition of a question of law, upon briefs and oral argument, as needed.
Rule 3.5.3. Mode of Proceeding. Briefs and Argument.
(a) The Court after conference or hearing or in lieu thereof, and whether requested by an interested party or on its own motion, may direct disposition of the issues upon briefs.
(b) Any party or his attorney may request oral argument upon a motion or issue involved in any controverted proceeding and the Court shall have the right to require oral argument.
(c) Unless oral argument is requested or specifically directed, the Court will decide the issues on briefs as submitted per briefing schedule set by the Court.
Rule 3.5.4. Mode of Proceeding. Procedure Where Briefs are Filed. Contents of Briefs.
When a matter is directed for disposition on briefs, the attorney for the moving party, following a briefing schedule set by the Court, shall furnish the Court with a typewritten brief containing:
(a)(1) an index; (2) a history of the case; (3) a statement of the questions involved; (4) a statement of the facts of the case; (5) a copy of the exceptions, if any; (6) in cases begun by petition, copies of the pertinent docket entries and of the pleadings; (7) a copy of the will and codicils or trust instrument and any other documents the construction of which is involved; (8) a brief of argument; and (9) a certificate of service per (c) of this rule.
(b) The brief of the respondent may contain a counter-statement of the questions involved, a counter-statement of the facts of the case, and shall contain a brief of the argument.
(c) Copies of briefs shall be delivered to counsel of record for opposing parties at the same time a copy is delivered to the Court.
Rule 3.5.5. Mode of Proceeding. Practice. Pre-Trial Conference.
In any action the Court, of its own motion or on motion of any party, may direct the attorneys for the parties to appear for a conference to consider:
(a) the simplification of the issues;
(b) the necessity or desirability of amendments to the pleadings;
(c) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof;
(d) the limitation of the number of expert witnesses; and
(e) such other matters as may aid in the disposition of the action.
The Court may make an order reciting the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and limiting the issues for trial to those not disposed of by admissions or agreements of the attorneys. Such order when entered shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.
Note: Practice as to pretrial conferences shall be governed by this Blair County Orphans' Court Rule 3.6.2. rather than Blair County Civil Rule 365.
Rule 3.5.6. Mode of Proceeding. Non-Jury Trials.
Cases requiring a hearing before a judge shall include, but shall not be limited to, voluntary relinquishments of parental rights, involuntary terminations of parental rights, adoptions, appointments of guardians, hearings on objections to accounts and hearings on challenges to grants of letters. Hearings on all such cases shall be scheduled by the Court.
Rule 3.5.7. Mode of Proceeding. Appointment of Guardians or Trustees ad Litem.
Guardians or trustees ad litem may be appointed to represent the interests of any prospective parties in interest who are not sui juris or who are absentees and for whom no guardian or trustee has previously been appointed. Such appointments may he made upon the presentation of the petition to the Court or at any time during the course of the proceeding when the Court deems such action necessary.
Rule 3.5.8. Mode of Proceeding. Inter Vivos Trust.
When the Court is first required to exercise its jurisdiction over an inter vivos trust, the original trust instrument or a copy of it certified by counsel to be true and correct and any amendments thereto shall be filed with the Prothonotary. These instruments shall be indexed and recorded by the Prothonotary. Any revocation shall be likewise filed, indexed and recorded. The Rules of Court applicable to testamentary trusts shall apply, generally, to inter vivos trusts.
Rule 3.5.9. Mode of Proceeding. Sureties.
(a) Individual Sureties. Individuals proposed as sureties on bonds of fiduciaries shall make an affidavit to the Prothonotary, setting forth such information as the Prothonotary shall require. Each affidavit shall be filed together with its respective bond. No member of the Bar or any employee of this Court shall act as surety in any proceeding in this Court, except by special leave of Court.
(b) Corporate Sureties. Any corporate surety allowed to do business in Pennsylvania may act as surety, providing that a current certificate evidencing approval by the Insurance Department of the Commonwealth of Pennsylvania, together with a designation of attorney in fact, is on file with the Prothonotary.
Rule 3.6.1. Depositions, Discovery, Production of Documents, and Perpetuation of Testimony.
(a) Leave to take depositions, to obtain discovery or production of documents, or to perpetuate testimony may be granted only on petition upon cause shown except upon agreement of counsel.
(b) The procedure relating to depositions, discovery, production of documents, and perpetuation of testimony shall be governed by special order of the Court in every case.
COMPUTATION OF TIME
Rule 4.1.1. Generally. [Reserved.]
Rule 5.1.1. Method. Form of Notice.
Except as otherwise provided in these rules or as provided by Act of Assembly, every notice shall contain at least the following information:
(a) the caption of the case;
(b) a description of the nature of the proceeding;
(c) the date, time, and place when the matter is to be heard by the Court to the extent then known;
(d) the name of the decedent, settlor, minor, or incapacitated person, if not disclosed by the caption;
(e) the names and addresses of all fiduciaries; and
(f) the name and address of counsel for each fiduciary.
[Note to Pa.O.C. 5.1: Pa.R.C.P. 422, 423 and 424 specify to whom notice shall be given when serving the Commonwealth of Pennsylvania and its subdivisions, partnerships and unincorporated associations, and corporations, respectively.]
Rule 5.1.2. Method. Legal Publication.
The Blair County Legal Bulletin shall be the legal periodical for the publication of notices whenever publication in a legal periodical is required by Act of Assembly, by Rule, or by Order of Court.
Rule 5.1.3. Service on Attorneys.
Written notice served personally on an attorney of record or on a partner or employee of his office, or by mail addressed to his office, shall be notice to the party whom he represents, except where personal service on the party is specifically required.
Rule 5.2.1. Method. When No Fiduciary.
Except where otherwise provided by a rule adopted by the Supreme Court or by an Act of Assembly, notice to a person who is not sui juris and whose interest is not represented by a guardian or trustee shall be given:
(a) to the person, if the person is not sui juris solely by reason of minority but is over fourteen years of age; and
(b) unless the Court by special order shall otherwise direct, to such one or more of the following persons as may exist:
(1) the parents of the person, if the person is an unmarried minor and one or both of the parents are sui juris;
(2) the spouse of the person;
(3) the individual with whom the person resides or by whom the person is maintained;
(4) the superintendent or other official of the institution having custody of the person;
(5) the attorney-in-fact with power to act on behalf of the person under a durable general power of attorney, if known; and
(c) to such other persons as the Court by special order may direct.
Rule 5.3.1. Advance Notice.
In any proceeding in which no preliminary decree is required, the notice may be given in advance of the filing of the petition or other application to the Court. In such case the return of notice required by Pa.O.C.R. 5.4 and B.C.O.C.R. 5.4.1 may be included in or attached to the petition. The Court may direct additional notice whenever that is deemed advisable by the nature of the proceeding or the circumstances.
Rule 5.4.1. Return of Notice. Additional Requirements.
In addition to the requirements of Pa.O.C.R. 5.4 (relating to the return of notice), the following requirements shall be satisfied:
(a) A copy of the notice required to be given shall be attached to the return.
(b) Personal Service. Return of personal service shall set forth the date, time, place and manner of such service, and that a true and correct copy of the petition and notice were handed to the person served.
(c) Registered or Certified Mail. Return of notice by registered or certified mail shall set forth the date and place of mailing and shall include the return receipt or a copy thereof. When the person who gives notice by registered or certified mail has personal knowledge or has cause to believe that the notice was not received by the person to be notified, he shall so state in the return. When the address of the person to be served by registered or certified mail is in a country other than the United States of America, a statement that the notice was so mailed to that person at the designated address shall be sufficient unless otherwise specifically ordered by the Court.
(d) Publication. Return of notice by publication shall set forth the date(s) and newspapers and/or legal periodicals of publication and shall include proofs of publication, including an affidavit of publication by the publisher or agent of the publisher.
[Note to Pa.O.C.R. 5.4: See Pa.R.C.P. 76 for the definition of ''affidavit.'']
ACCOUNTS AND DISTRIBUTION
Rule 6.1.1. Form. Additional Requirements.
(a) Accounts shall substantially conform to the model account forms approved by the Supreme Court.
(b) In addition to all other applicable information required by the model account forms approved by the Supreme Court, the first page of the account shall include the following information:
(1) a caption;
(2) the name, address and telephone number of the accountant; and,
(3) the name, address and telephone number of the attorney representing the accountant.
(c) In cases where a distribution is proposed, the account shall include a statement of proposed distribution in substantially the form shown in the model account forms approved by the Supreme Court.
(d) The following items shall be attached at the end of the account in the following order:
(1) an affidavit or verified statement of the accountant in substantially the form set forth in the model account forms approved by the Supreme Court;
(2) a certificate of notice as required by Local Rule 6.2.1; and,
(3) for the first account of a personal representative, proofs of publication of the grant of letters as required by section 3162 of the Probate, Estates and Fiduciaries Code.
Note: See Pa.O.C. Rule 2.1 for the authority of the Court to disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest.
Rule 6.2.1. Notice. Additional Requirements.
(a) Notice of the filing of the account shall include the following:
(1) a statement that the account was or will be filed with the Clerk of the Orphans Court, Blair County Courthouse, Hollidaysburg, Pennsylvania on or not later than a specified date and that it will be confirmed nisi on a specified date, and thereafter confirmed absolutely on a specified date unless written objections are filed thereto;
(2) a statement that any person who objects to transactions shown in the account must file written objections with the Clerk of the Orphans' Court at the Blair County, Courthouse, Hollidaysburg, Pennsylvania on any date prior to the date the account will be confirmed absolutely;
(3) a statement of any question of interpretation or distribution which will be presented to the Court for determination and the position taken on the question by the accountant, if any, together with a statement that any person who wishes to take a position on the question or a position different from the accountant must file with the Clerk of the Orphans' Court at the Blair County Courthouse, Hollidaysburg, Pennsylvania on any date prior to the date the account will be confirmed absolutely file in writing a statement of their position on the question of interpretation or distribution; and,
(4) a description of the nature and value or amount of any unresolved claim; a statement whether the claim is admitted or contested; if the claim is admitted, a statement whether it will be paid in full or in part; and if the claim is contested, a statement that the claimant must file written objections with the Clerk of the Orphans' Court at the Blair County, Courthouse, Hollidaysburg, Pennsylvania on any date prior to the date the account will be confirmed absolutely;
(5) The accountant shall attach to the account a certificate signed by the accountant or the attorney for the accountant that he or she has given notice as required in writing of the date the account will be confirmed nisi and the date the account will be confirmed absolutely. The certificate shall also set forth the names and addresses of the persons to whom notice of the filing of the account is being given.
Rule 6.3.1. Advertisement of Accounts.
All accounts required by law to be filed with the Clerk of the Orphans' Court Clerk shall be advertised by the Clerk in the manner prescribed by law. The notices shall specify the date the accounts will be confirmed nisi and the date the accounts will be confirmed absolutely. The notice shall also state that unless written objections are filed with the Clerk of the Orphans' Court at the Blair County Courthouse, Hollidaysburg, Pennsylvania on or before the date the Account is to be confirmed absolutely, the account will be confirmed absolutely and that thereafter distribution may be decreed by the Court, without reference to an auditor, in accordance with any statement of proposed distribution filed with the account.
Rule 6.10.1. Objections to Accounts or Statements of Proposed Distribution.
Objections to an account or statement of proposed distribution must be in writing, numbered consecutively, signed by the objector or his or her attorney, and each objection shall:
(a) be specific as to the item in the account or the item omitted from the account to which the objection is being filed;
(b) raise but one issue of law and fact for each item in the account or omitted from the account to which the objection is being filed. If there are several objections to one item included in or omitted from the account, all such objections shall be included in the same objection; and,
(c) set forth briefly the reason or reasons in support thereof for each objection.
Rule 6.10.2. Objections to Accounts or Statements of Proposed Distribution-Filing-Service of Copy.
(a) Time of Filing. Objections must be filed in writing with the Clerk of the Orphans' Court, Courthouse, Blair County, Pennsylvania no later than the day the account is scheduled to be confirmed absolutely.
(b) Service of Copy. A copy of the objections shall be served without delay after filing on accountant's attorney.
Rule 6.10.3. Objections to Accounts or Statements of Proposed Distribution-Procedure.
(a) When objections to an account or statement of proposed distribution have been filed, the Clerk of the Orphans' Court shall immediately transmit the objection to the President Judge.
(b) The President Judge shall enter such orders or order regarding the objections for disposition including but not limited to scheduling a hearing thereon or referring the objections to an auditor for disposition.
(c) An order of court the objections to an auditor for disposition shall set forth therein the name, address and telephone number of the auditor, any time limits given the auditor for disposition of the objections, the method of calculating the payment of the auditor and such other matters as the President Judge deems appropriate for the efficient disposition of the objections.
(d) An auditor shall be a licensed attorney who is a member in good standing of the Blair County Bar Association. The auditor shall have been licensed to practice law in the Commonwealth of Pennsylvania for a period of no less than five years.
Rule 6.11.1. Small Estates.
Petitions under § 3102 of the PEF Code for distribution of small estates shall set forth:
(a) the name and address of the petitioner and petitioner's relationship to the decedent;
(b) the name, date of death, and domicile of the decedent;
(c) whether the decedent died testate or intestate, the date of the probate of the will, if applicable, and the date of the grant of letters, if any, and whether the personal representative has been required to give bond and, if so, the amount of the bond;
(d) the name and relationship of all beneficiaries entitled to any part of the estate under the will or intestate laws, a brief description of their respective interests, whether any of them has received or retained any property of the decedent by payment of wages under Section 3101 of the PEF Code, or otherwise, and whether any of them is a minor, incompetent or deceased, as well as the name of any decedent's fiduciary;
(e) the person or persons, if any, entitled to the family exemption and, if a claim therefore is made in the petition, any additional facts necessary to establish the person's right to the family exemption;
(f) an inventory of the real and personal estate of the decedent, the value ascribed to each item, either incorporated in the petition or attached as an exhibit;
(g) a list showing the nature, amounts, and preferences of all unpaid claims against the estate and indicating which claims are admitted;
(h) if any unpaid beneficiary, heir, or claimant has not joined in the petition, a statement that notice of the intention to present the petition has been given as required by these Rules; and
(i) a prayer for distribution of the personal property to those entitled and, if appropriate, for the discharge of the personal representative.
(j) There shall be attached to the petition the following exhibits:
(1) the original of the decedent's will if it has not been probated, or a copy thereof if it has been probated;
(2) the joinders or consents of unpaid beneficiaries, heirs and claimants insofar as they are obtainable;
(3) an itemized list of disbursements made prior to the filing of the petition, indicating the payor and whether the disbursements were in payment of administration expenses, preferred or ordinary debts, items of distribution or the family exemption; and,
(4) a certificate of the Register showing the status of payment of the inheritance tax.
(k) No appraisement shall be required unless ordered by the Court.
Note: See PEF Code § 3102.
Rule 6.11.2. Confirmation Absolute.
Unless objections are filed in accordance with B.C.O.C.R. 6.10.1., the confirmation of accounts and statements of proposed distribution filed with accounts shall be made absolute by the Clerk, without further order of Court.
Rule 6.11.3. Confirmation of Title to Real Property.
In General—When the account and the statement of proposed distribution filed therewith have been finally confirmed as hereinbefore provided. Such confirmation shall be in the nature of confirmation of title to real property in the respective distributees.
Separate Awards—A schedule of distribution shall set forth separate awards of real property in separate paragraphs.
Description—Real property shall be described in the manner appearing in the last deed of record, or in some other proper manner, and in addition, shall include information pertinent to the derivation of title.
Certification by Prothonotary—The Prothonotary may, at the request of any party in interest, certify excerpts from a decree of distribution for recording in any public office for recording deeds.
Rule 7.1.1. Exceptions. Generally.
No exceptions shall be filed to decrees, adjudications, confirmations, or other decisions or orders of Court or in proceedings unless the right to except is expressly conferred by an Act of Assembly, by a general rule, or by a special order. All decrees, adjudications, confirmations or other decisions or orders of Court, other than those to which the exceptions are so allowed to be taken, shall be final and definitive.
Note: See B.C.O.C.R. 2.3.1.
Rule 7.1.2. Exceptions. Time and Place of Filing.
(a) Decrees, adjudications, confirmations or other decisions of the Court shall be confirmed absolutely, as of course, unless written exceptions thereto are filed within ten (10) days after the date the decision or order is filed.
(b) If timely exceptions are filed by a party, any other party may file exceptions within ten (10) days after the date on which the first exceptions were filed. However, such exceptions shall in no event raise questions which could have been, but were not, raised by objections to an account or by claims presented in accordance with B.C.O.C.R. 6.10.1.
(c) Exceptions shall be filed with the Prothonotary.
Rule 7.1.3. Exceptions. Partial Distribution.
When the matters which are the subject of an adjudication, schedule of distribution, or the report of an auditor or master, are so separate and distinct that an exception to any one or more, whether sustained or dismissed, cannot affect the remainder, and the accountant will not be prejudiced by the distribution of such remainder, confirmation of the adjudication, schedule of distribution, or report, shall not be suspended, except as to those matters to which exceptions have been filed; distribution may proceed as to the remainder, and any party from whom such distribution has been withheld may petition the Court to order distribution.
Rule 7.1.4. Exceptions. Form.
Exceptions shall be in writing, numbered consecutively, signed by the exceptant or by his or her attorney, and each exception shall
(a) be specific as to description and amount;
(b) raise but one issue of law or fact, but if there are several exceptions to items included in or omitted from the adjudication relating to the same issue, all such exceptions shall be included in the same exception; and
(c) set forth briefly the reason or reasons in support thereof.
AUDITORS AND MASTERS
Rule 8.1.1. Appointment.
An auditor shall be appointed only when all parties in interest or their counsel consent thereto in writing. A master may be appointed by the Court on its own motion or upon the petition of the accountant or of any party in interest. All auditors and masters shall be members of the Bar of the Supreme Court of Pennsylvania.
Rule 8.1.2. Notice of Hearings.
Once appointed, an auditor shall schedule a hearing and give notice thereof to all parties in interest at least ten (10) days prior to the hearing. The notice of the auditor shall be given in accordance with B.C.O.C.R. 5.1.
Rule 8.1.3. Masters.
Rules pertaining to auditors shall extend to masters insofar as applicable.
Rule 8.2.1. Filing of Report. Place. Time.
(a) The report of an auditor or master who has been appointed to assist the Court in the audit of an account or the disposition of an issue of fact in a matter shall be filed with the Prothonotary.
(b) The report of the auditor or master shall be filed within ninety (90) days after his appointment and shall be extended only upon application to the Court for good cause shown.
Rule 8.3.1. Form of Auditor's Report.
[No local rule.]
Rule 8.4.1. Form of Master's Report.
[No local rule.]
Rule 8.5.1. Transcript of Testimony.
[No local rule.]
Rule 8.6.1. Notice of Intention to File. Proof of Notice.
An auditor or master shall give ten (10) days notice in writing to all parties in interest or their counsel of record of his intention to file his report with the Court on a day certain.
Rule 8.7.1. Confirmation of Report. Exceptions.
Exceptions to the report may be filed with the auditor within ten (10) days after the receipt of the notice required by B.C.O.C.R. 8.6.1. If exceptions are filed, the auditor shall reconsider his or her report and present it to the Court with the exceptions attached. Immediately upon filing the report, the auditor shall give notice thereof to the attorney for each party in interest. Thereafter, no exceptions may be filed without leave of Court for good cause shown. When exceptions are filed by the auditor or by leave of Court for good cause shown, the Court may schedule the matter for argument.
Rule 8.7.2. Confirmation.
Following the notice and exception procedures of B.C.O.C.R. 8.6.1. and 8.7.1., an auditor's report and any exceptions thereto shall be filed with the Court. If no exceptions have been filed with the auditor, it will be confirmed absolutely.
Rule 8.8.1. Compensation and Security.
The auditor or master shall be compensated by reasonable fees as fixed by the Court and paid from such sources as the Court shall direct.
Rule 9.1.1. Appointment of Official Examiners.
Rules pertaining to auditors shall extend to official examiners insofar as applicable.
REGISTER OF WILLS
Rule 10.2.1. Form of Appeal.
When an appeal is taken from a judicial act or from a proceeding before the Register, the records of the matter shall be certified to the Court in accordance with 20 Pa.C.S.A. Section 907 (relating to certification of records to the Court). The appeal shall be in the form of a petition to the Court and shall set forth:
(a) the nature of the proceedings before the Register;
(b) the basis of the appeal, including the facts or circumstances upon which it is based;
(c) the names and the addresses of all parties in interest, including those who have not been parties of record.
(d) a request that a Citation be issued directed to all parties in interest including those not represented on the record to show cause why the appeal should not be sustained and the judicial act or proceeding complained of be set aside and reversed.
Rule 10.2.2. Citation.
Upon allowance of the petition, a citation shall be issued by the Court, to which an answer must be filed on a date set forth in the citation, directed to all parties in interest, including those not represented on the record, to show cause why the appeal should not be sustained and the judicial act or proceeding complained of be set aside. The Court may then schedule the matter for hearing. The citation and a copy of the petition shall be served by the party taking the appeal in the manner provided by the Probate, Estates and Fiduciaries Code § 765.
Rule 10.2.3. Disposition-No Answer.
If no answer is filed, upon proof of service of the citation, the Court may grant the relief requested.
Rule 11.1.1. Selection of Jurors. [Reserved.]
Rule 12.1.1. Family Exemption. Additional Contents of Petition.
In addition to the requirements of Pa.O.C. Rule 12.1. a petition for the family exemption shall also set forth:
(a) the name, residence, and date of death of the decedent;
(b) the name, address, and relationship of the petitioner to the decedent, and whether the petitioner was a member of the same household as the decedent on the date of his or her death;
(c) if petitioner be the surviving spouse, the date and place of the marriage; and if a common law marriage is asserted, all averments necessary to establish the validity of the marriage;
(d) whether the decedent died testate or intestate; whether, when and to whom letters were granted; and the names, relationship, and addresses of those interested in the estate; and
(e) the location, description and value of the property claimed.
Note: See Pa.O.C. Rule 3.4., B.C.O.C.R. 3.4.1, 3.4.2 and 3.4.3., and PEF Code §§ 3121 to 3126.
Rule 12.2.1. Allowance to Surviving Spouse. Additional Contents of Petition.
A petition for the allowance to the surviving spouse of an intestate shall also set forth the information required in a petition for the family exemption under B.C.O.C.R. 12.1.1 insofar as is appropriate. Such a petition shall have a copy of the inventory attached to it.
Note: See PEF Code §§ 2102 to 2110.
Rule 12.3.1. Elective Share. Extension of Time-Contents of Petition.
A petition for extension of time in which the surviving spouse may file an election to take against the will shall set forth the facts relied upon to justify the extension sought.
Note: See PEF Code §§ 2201 to 2211.
Rule 12.4.1. Appointment of a Guardian ad Litem of a Trustee ad Litem.
[No local rule.]
Rule 12.5.1. Appearance in Court-Minor Over Fourteen.
If the minor is over the age of fourteen years old, the minor shall appear at the presentation of the petition and nominate the guardian in open Court. If the minor is unable to appear in person, the reasons for the minor's absence shall be set forth in the petition.
Note: See Pa.O.C. Rule 12.5(e) and PEF Code § 5113.
Rule 12.5.2. Small Estates of Minors.
(a) A petition for the award of an estate of a minor without the appointment of a guardian or the entry of security shall contain the following:
(1) a statement that the net value of the entire real and personal estate of the minor does not exceed the statutory limitations; and
(2) the name of a bank or insured savings and loan association with at least one office in Blair County as the suggested depository.
(b) In the absence of satisfactory reasons for doing otherwise, the Court shall direct that any cash be deposited in an interest bearing account in such a depository in the name of the minor or the name of a natural guardian of the minor. In all cases, the account shall be expressly restricted by means of a notation on the records of the depository that no withdrawals may be made from the account until the minor attains the age of majority, except as authorized by a prior order of the Court. Further, evidence of the marking of the account to indicate the restriction shall be filed promptly as part of the record.
(c) Any authorization by the Court given to a parent or other person or institution maintaining the minor to execute a receipt, deed, mortgage or other instrument affecting real or personal property of the minor within the statutory limit shall be conditioned on the deposit of the proceeds therefrom in an account restricted as in (b) above.
Note: See PEF Code §§ 5101 to 5103.
Rule 12.5.3. Allowances from Minor's Estate.
A petition for an allowance from a minor's estate shall set forth:
(a) the manner of the guardian's appointment and qualification and the dates thereof;
(b) the age and residence of the minor, whether his or her parents are living, the name of the person with whom he or she resides, and the name and age of his or her spouse and children, if any;
(c) the value of the minor's estate, real and personal, and his or her annual income;
(d) the circumstances of the minor, whether employed or attending school; whether a parent or other person charged with the duty of supporting the minor is living, the financial condition and income of the person and why the person is not discharging his or her duty of support; and whether there is adequate provision for the support and education of the minor, his or her spouse and children;
(e) the date and amount of any previous allowance by the Court; and
(f) the financial requirements of the minor and his or her family, in detail, and the circumstance making the allowance necessary.
Note: See PEF Code § 5164.
Rule 12.6.1. Appointment of Trustee. Exhibit attached to Petition.
A copy of the instrument creating the trust shall be attached as an exhibit to the petition.
Rule 12.7.1. Discharge of a Fiduciary of Surety.
[No local rule.]
Rule 12.8.1. Partition.
[No local rule.]
Rule 12.9.1. Public Sale of Real Property.
[No local rule.]
Rule 12.10.1. Private Sale of Real Property.
[No local rule.]
Rule 12.11.1. Mortgage or Lease of Real Property.
[No local rule.]
Rule 12.12.1. Inalienable property.
[No local rule.]
Rule 12.13.1. Designation of a Successor Custodian.
[No local rule.]
Rule 12.14.1. Confirmation of Appointment of Trustee.
[No local rule.]
Rule 12.12.1. Cemetery Companies.
[No local rule.]
DISTRIBUTION; SPECIAL SITUATIONS
Rule 13.1.1. Representation by Counsel.
If, pursuant to Pa.O.C. Rule 13.1, a foreign distributee or claimant is represented by counsel who possesses a valid duly authenticated power of attorney executed by the distributee or claimant, said power of attorney shall be filed in the office of the Prothonotary and a copy thereof served upon the fiduciary.
Rule 13.2.1. Existence and Identity.
If notice to a foreign consulate is required pursuant to Pa.O.C. Rule 13.2, a copy of said notice shall be attached to the Petition for Adjudication and, at the audit, the fiduciary shall provide a report as to any information resulting from such notice.
Rule 13.3.1. Report by Fiduciary.
If, pursuant to Pa.O.C. Rule 13.3, a report is submitted, said report shall be submitted with the schedule of distribution and shall include, substantially, the following:
(a) Unknown Distributee. If it appears that the identity or whereabouts of a distributee is unknown or there are no known heirs, a written report verified by the fiduciary or counsel setting forth:
(1) the nature of the investigation made to locate the heirs of the decedent in complete detail; and
(2) in cases of intestacy, a family tree, as complete as possible, supported by such documentary evidence as the fiduciary has been able to obtain.
(b) Non-resident Distributee. If the fiduciary requests the Court to withhold distribution to a non-resident distributee, a written report verified by the fiduciary or counsel setting forth:
(1) the relationship of the distributee to the decedent and any available information concerning his or her present whereabouts;
(2) in cases of intestacy, a family tree, as complete as possible, supported by such documentary evidence as the fiduciary has been able to obtain; and
(3) the reasons for the request that distribution be withheld and the suggested manner of withholding.
Rule 14.2.1. Petition to Adjudicate Incapacity. By Whom Filed.
[No local rule.]
Note: See 20 Pa.C.S. § 5511(a): The petitioner may be any person interested in the alleged incapacitated person's welfare.
Note: See Pa.O.C. Rule 12.5. (a): A petition for the appointment of a guardian for the estate or person of a minor shall be filed by the minor, if over fourteen years of age, and if under such age, by his parent or parents, the person with whom he resides or by whom he is maintained or by any person as next friend of the minor.
Rule 14.2.2. Petition to Adjudicate Incapacity. Contents.
[No local rule.]
Note: See Pa.O.C. Rule 12.4 and 12.5.
Note: See 20 Pa.C.S. § 5511(e): PETITION CONTENTS.—The petition, which shall be in plain language, shall include the name, age, residence and post office address of the alleged incapacitated person, the names and addresses of the spouse, parents and presumptive adult heirs of the alleged incapacitated person, the name and address of the person or institution providing residential services to the alleged incapacitated person, the names and addresses of other service providers, the name and address of the person or entity whom petitioner asks to be appointed guardian, an averment that the proposed guardian has no interest adverse to the alleged incapacitated person, the reasons why guardianship is sought, a description of the functional limitations and physical and mental condition of the alleged incapacitated person, the steps taken to find less restrictive alternatives, the specific areas of incapacity over which it is requested that the guardian be assigned powers and the qualifications of the proposed guardian. If a limited or plenary guardian of the estate is sought, the petition shall also include the gross value of the estate and net income from all sources to the extent known.
Note: See Pa.O.C. Rule 12.5.(b) [where petition is for appointment of a guardian of a minor]: ''The petition shall set forth (1) the name, address and age of the minor, and the names and addresses of his parents, if living; (2) the name, address and relationship to the minor of the petitioner, if the petition is not filed by the minor; (3) that the minor's parents consent to the petition, if it is not filed by them, or the reason why they do not consent; (4) the necessity of the appointment of a guardian and that the minor has no guardian or that a guardian already appointed has died or has been discharged or removed by the court, together with the date of such death, discharge or removal and a reference to the court record of such discharge or removal; (5) the name, address and age of the proposed guardian and his relationship to the minor, if any; (6) the nature of any interest of the proposed guardian adverse to that of the minor including inter alia a reference to any estate in which the minor is interested and in which the proposed guardian is a fiduciary or surety or employee of a fiduciary or surety therein; (7) if the petition is for the appointment of a guardian of the person, the religious persuasion of the parents of the minor and of the proposed guardian; (8) if the petition is for the appointment of a guardian of the estate, an itemization of the assets of such estate, their location, approximate value and income, if any; (9) if the minor is entitled to receive any money as a party to any action or proceeding in any court, a reference to the court record and the amount to which the minor is entitled; and (10) that notice has been given to the United States Veterans' Administration or its successor, if the minor is the child of a veteran and insurance or other gratuity is payable to him by the United States Veterans' Administration, or its successor.''
Rule 14.2.3. Petition. Contents. Written Consent.
(a) If the proposed guardian is an individual, the written consent of the proposed guardian shall be attached to the petition pursuant to Pa.O.C.Rule 12.5(c), and shall include:
(1) the place of residence of the proposed guardian;
(2) the occupation of the proposed guardian;
(3) a statement that the proposed guardian speaks, reads and writes the English language;
(4) a statement that the proposed guardian does not have any interest adverse to the alleged incapacitated person;
(5) a statement that the proposed guardian is not a fiduciary, or an officer or employee or a corporate fiduciary, of an estate in which the alleged incapacitated person has an interest; not the surety, or an officer or employee of a corporate surety of such a fiduciary.
(b) If the proposed guardian is a corporate guardian, the written consent of the proposed guardian shall contain a statement that it is not the fiduciary of an estate in which the alleged incapacitated person has an interest, nor the surety of such a fiduciary, and that the proposed guardian does not have any adverse interest to the alleged incapacitated person.
Rule 14.2.4. Notice. To Whom Given.
[No local rule.]
Note: See 20 Pa.C.S. § 5511(a): '' . . . notice of the petition and hearing shall be given in such manner as the court shall direct to all persons residing within the Commonwealth who are sui juris and would be entitled to share in the estate of the alleged incapacitated person if he died intestate at that time, to the person or institution providing residential services to the alleged incapacitated person and to such other parties as the court may direct, including other service providers.''
Rule 14.2.5. Notice. Service on Incapacitated Person.
[No local rule.]
Note: See Pa.O.C. Rule 5.2.
Note: See 20 Pa.C.S. § 5511(a): ''Written notice of the petition and hearing shall be given in large type and in simple language to the alleged incapacitated person. The notice shall indicate the purpose and seriousness of the proceeding and the rights that can be lost as a result of the proceeding. It shall include the date, time and place of the hearing and an explanation of all rights, including the right to request the appointment of counsel and to have counsel appointed if the court deems it appropriate and the right to have such counsel paid for if it cannot be afforded. . . . A copy of the petition shall be attached. Personal service shall be made on the alleged incapacitated person, and the contents and terms of the petition shall be explained to the maximum extent possible in language and terms the individual is most likely to understand. Service shall be no less than 20 days in advance of the hearing.''
Rule 14.2.6. Notice. Service on Others.
Notice required in matters involving adjudication of incapacity or appointment or removal of a guardian for an incapacitated person, other than notice upon the alleged or adjudicated incapacitated person, shall be by personal service, by service in such manner as the Court directs and/or as directed by statute in that particular case, or may be made by first-class mail, postage prepaid, to the known or last known address. In the latter case, a certificate of service shall be prepared and filed verifying that the address used is the proper known or last known address, and attaching a postal certificate of mailing.
Note: See 20 Pa.C.S. § 5511(a): ''In addition, notice of the petition and hearing shall be given in such manner as the court shall direct to all persons residing within the Commonwealth who are sui juris and would be entitled to share in the estate of the alleged incapacitated person if he died intestate at that time, to the person or institution providing residential services to the alleged incapacitated person and to such other parties as the court may direct, including other service providers.''
Rule 14.2.7. Hearing. Evidence in Support of Petition.
[No local rule.]
Note: See 20 Pa.C.S. § 5518.
Rule 14.2.8. Small Estates.
If at hearing incapacity is established, and it appears that the gross estate does not exceed the statutory limitation as defined in § 5505 of the P.E.F. Code, the Court may award the entire estate to the person or institution maintaining the incapacitated person, or make such order as may be appropriate under the circumstances.
Rule 14.2.9. Special Petitions for Allowances.
(a) A petition for an allowance from an incapacitated person's estate for maintenance and support of the incapacitated person or for payment of counsel fees, shall set forth:
(1) the name of the guardian and date of appointment, or, if the petitioner is not the guardian, the petitioner's relationship to the incapacitated person or the nature of the petitioner's interest;
(2) a summary of the inventory, the date it was filed and the nature and present value of the estate and its income;
(3) the address and occupation, if any, of the incapacitated person;
(4) the names and addresses of the incapacitated person's dependents, if any;
(5) a statement of all claims of the incapacitated person's creditors known to petitioner;
(6) a statement of all previous distribution allowed by the Court;
(7) a statement of the requested distribution and the reasons therefor.
(8) If any portion of the incapacitated person's estate is received from the United States Veterans' Administration or its successor, that notice of the request for allowance has been given to that agency.
Rule 14.2.10. Reports of Guardian. Notice.
(a)(1) Guardian of the Person. At least once within the first twelve months of the appointment and annually thereafter, the guardian of the person shall file a report with the Court outlining the guardian's performance. The form of the report shall be substantially the same as the form available in the office of the Prothonotary. A final report shall be filed within sixty (60) days after the death of the incapacitated person.
(2) Guardian of the Estate. In addition to the filing of an inventory which must be filed within ninety (90) days of appointment, the guardian of the estate shall file a report with the Court at least once within the first twelve months of the appointment and annually thereafter as to the administration of the ward's estate. The Court, in its discretion, may require that the report be filed more frequently. The form of the report shall be substantially the same as the form available in the office of the Prothonotary. A final report shall be filed within sixty (60) days after the death of the ward.
(b) Notice. The guardian shall serve written notice of the filing of the report upon each care provider, next-of-kin, and all parties in interest by first-class mail within ten (10) days of filing the report in substantially the following form:
COURT OF COMMON PLEAS OF
BLAIR COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
ANNUAL REPORT OF GUARDIANIn the matter of the Estate of ______ , an Incapacitated Person. To the care providers, next-of-kin, and all parties in interest in said affairs:Notice is hereby given that ______ , (guardian of the estate-guardian of the person) has filed in the office of the Prothonotary of the said Court the annual report concerning the affairs of the ward. A copy of the report is available for inspection in the office of the Prothonotary, Blair County Courthouse, 423 Allegheny Street, Hollidaysburg, PA 16648.
Rule 14.3.1. Review Hearing.
[No local rule.]
Rule 14.4.1. Proceedings Relating to Real Estate.
[No local rule.]
Rule 14.5.1. Form of Citation and Notice.
[No local rule.]
See the Adoption Act, 23 Pa.C.S. § 2101 et seq. As to adoption jurisdiction in the Orphans' Court Division in Blair County, see PEF Code, 20 Pa.C.S. §§ 711(7).
Rule 15.1.1. Practice and Procedure.
All reports and petitions relating to adoption shall be filed with the Prothonotary and shall be in such form as is designated from time to time by the Court. All filing fees shall be paid at the time of filing. Upon the completion of any proceedings relative to adoption, all documents in connection therewith shall be handled in the manner set forth in Pa.O.C. Rule 15.7.
In every proceeding brought to terminate any parental rights as to a child born in the Commonwealth of Pennsylvania, petitioner shall obtain and provide to the Court at the time of the hearing thereon official certificates obtained from the Pennsylvania Department of Welfare (formerly obtained from the Pennsylvania Department of Health, Bureau of Vital Statistics) identifying any paternity acknowledgements or paternity claims on file with the Department in accordance with 23 Pa.C.S. § 5103(b) as to each such child as to whom termination of parental rights is sought.
Rule 15.5.3. Adoption. Certification of Receipt of Consent.
Where a Petition for Adoption contains the Consent of a natural parent whose parental rights have not previously been terminated, petitioner's attorney shall aver in the subject petition that the natural parent has received a copy of the Consent to adoption that he/she signed.
PROCEEDINGS PURSUANT TO SECTION 3206 OF THE ABORTION CONTROL ACT
Rule 17.1. Short Title.
These rules shall be known as Blair County Orphans' Court Rules and shall be cited as B.C.O.C. Rules.
[Pa.B. Doc. No. 09-1862. Filed for public inspection October 9, 2009, 9:00 a.m.]
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