[45 Pa.B. 7098]
[Saturday, December 19, 2015]
[Continued from previous Web Page]
CHAPTER V. RULES GOVERNING SPECIFIC TYPES OF PETITIONS
5.1. Declaratory Judgment. 5.2. Family Exemption. 5.3. Intestate Share to Surviving Spouse from Real Estate. 5.4. Revocation, Vacating or Extension of Time for Filing of Surviving Spouse's Election. 5.5. Appointment of a Guardian ad litem or a Trustee ad litem. 5.6. Appointment of a Guardian for the Estate or Person of a Minor. 5.7. Appointment of a Trustee. 5.8. Discharge of Fiduciary and Surety. 5.9. Partition. 5.10. Public Sale of Real Property. 5.11. Private Sale of Real Property or Options Therefor. 5.12. Mortgage or Lease of Real Property. 5.13. Inalienable Property. 5.14. Designation of a Successor Custodian. 5.15. Confirmation of Trustee Appointment.
Rule 5.1. Declaratory Judgment.
(a) Commencement of Action. An action for declaratory judgment shall be commenced by petition and citation directed to the interested parties.
(b) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, the petition shall contain sufficient averments to entitle petitioner to the declaratory relief requested under the Pennsylvania Declaratory Judgments Act, 42 Pa.C.S. § 7531 et seq., including:
(1) a concise statement of the facts relied upon to justify a declaratory judgment proceeding;
(2) the question of law, if any, with respect to which declaratory relief is requested;
(3) identity of all interested parties; and
(4) a prayer for the relief desired.
(c) Exhibits. A copy of the will, trust, other governing instrument, or any other document to be construed shall be attached to the petition as an exhibit.
Note: Rule 5.1 has no counterpart in former Orphans' Court Rules, but is based upon Philadelphia Local Rule 1.2.P.
Rule 5.2. Family Exemption.
(a) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, a petition for a family exemption shall set forth the following:
(1) facts establishing a prima facie right of the petitioner to the exemption;
(2) whether allowance of the claim is being requested prior to the confirmation or audit of the Account;
(3) a description of the property claimed; and
(4) if the exemption is claimed from real estate and a valuation has not been agreed upon by all interested parties, the nomination of two appraisers for appointment by the court to appraise the same.
(b) Exhibits. A copy of the qualifications and credentials of the two appraisers nominated in the petition for appointment by the court shall be attached to the petition as exhibits.
(c) Award by Consent. The court may, at the request of the petitioner, award in distribution specific real estate included in the Account in satisfaction of, or on account of, the family exemption without compliance with the procedure outlined in subparagraphs (a) and (b) of this Rule if all interested parties agree in writing that the petitioner is entitled to the family exemption and to the valuation at which such real estate is to be awarded.
Note: Rule 5.2 is based upon former Rule 12.1.
Rule 5.3. Intestate Share to Surviving Spouse from Real Estate.
(a) Contents of Petition. When no Account is filed and all or part of the spouse's intestate share under 20 Pa.C.S. § 2102 is claimed from real estate, the claim shall be presented by petition, which shall conform to the requirements provided by the Rules in Chapter III, and shall set forth the following:
(1) facts establishing a prima facie right of the spouse to the statutory intestate share;
(2) a description of the property claimed; and
(3) if the exemption is claimed from real estate and a valuation has not been agreed upon by all interested parties, the nomination of two appraisers for appointment by the court to appraise the same.
(b) Exhibits. A copy of the qualifications and credentials of the two appraisers nominated in the petition for appointment by the court shall be attached to the petition as exhibits.
(c) Award by Consent. The court may, at the request of the surviving spouse, award specific real estate in satisfaction of, or on account of, the spouse's statutory intestate share without compliance with the procedure outlined in subparagraphs (a) and (b) of this Rule if all interested parties agree in writing that the surviving spouse is entitled to the statutory share and to the valuation at which such real estate is to be awarded.
Note: Rule 5.3 is based upon former Rule 12.2.
Explanatory Comment: Deletion of specific reference to the former statutory allowance of $10,000.00 increased to $30,000.00 allows greater flexibility. The Rule would not need to be amended in the future if the statutory amount should be further increased. With the broader language employed there is no longer any need to refer to the specific statutory provisions. As amended, the Rule recognizes the present practice of making the award of real estate in satisfaction of the spouse's allowance a part of the distribution decree when a court accounting is filed. While this Rule will be employed only in a minimum of instances for the foregoing reason and also because of the availability of § 3546 of Title 20, it, nevertheless, is considered advisable to preserve it in its altered form as a guide when it is to be employed.
Rule 5.4. Revocation, Vacating or Extension of Time for Filing of Surviving Spouse's Election.
(a) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, a petition to revoke or vacate an election of a surviving spouse to take against the will and other conveyances of the decedent shall set forth the following:
(1) the date of the decedent's death, whether a will has been probated and, if so, a reference to the place and date of probate;
(2) the name and capacity of the fiduciary of the decedent's estate, if any, and a reference to the record of his appointment;
(3) the name, address and relationship, if known, of the other interested parties and the nature and the extent of each of their interests;
(4) the names of the interested parties who have consented to the revocation or vacating of the election and the names of those who have not consented;
(5) a description and valuation of the decedent's real and personal property affected by the election;
(6) the date and manner of executing the election desired to be revoked or vacated and whether the same has been recorded, registered or filed, and if so, the date and place thereof;
(7) whether the surviving spouse has made or executed and delivered at any place an election contrary to that desired to be revoked or vacated, and whether that election has been recorded, registered or filed, and if so, the date and place thereof;
(8) the facts relied upon to justify the revocation or vacating of the election; and
(9) a request for a citation upon the interested parties who have not joined in the petition or who have not consented thereto to show cause why the election should not be revoked or vacated.
(b) A petition for the extension of the time in which the surviving spouse may file an election to take against the will and other conveyances shall be filed prior to the expiration of six months as provided in 20 Pa.C.S. § 2210 with the clerk of the county where decedent's will was probated.
(c) Notice of the filing of any petition under this Rule shall be provided to the personal representative of decedent's estate in accordance with Rule 3.5(b)(1).
Note: Rule 5.4 is based upon former Rule 12.3.
Rule 5.5. Appointment of a Guardian ad litem or a Trustee ad litem.
(a) On petition of the accountant or any interested party, or upon its own motion, the court may appoint one or both of the following if the court considers that the interests of the non-sui juris individuals are not adequately represented:
(1) a guardian ad litem to represent a minor or a person believed to be incapacitated under the provisions of Chapter 55 of Title 20, but for whom no guardian of the estate is known to have been appointed by a Pennsylvania court or by the court of any other jurisdiction; and
(2) a trustee ad litem to represent an absentee, a presumed decedent, or unborn or unascertained persons not already represented by a fiduciary.
(b) The same person may be appointed as guardian ad litem and trustee ad litem and may be appointed for more than one non-sui juris individual when the interests to be represented are not conflicting.
(c) Contents of Petition. The request for the appointment of guardian ad litem and trustee ad litem may be made in one petition. In addition to the requirements provided by the Rules in Chapter III, the petition shall set forth the following:
(1) the name, age and address of the minor or person believed to be incapacitated under the provisions of Chapter 55 of Title 20, but for whom no guardian of the estate is known to have been appointed;
(2) the relationship, if any, of such non-sui juris individual to any interested party and to the decedent or settlor;
(3) the interest of such non-sui juris individual in the property or in the matter at issue;
(4) the provisions of any instrument creating such interests;
(5) the necessity for such interests to be represented by a guardian ad litem or a trustee ad litem; and
(6) the proceeding in which such non-sui juris individual is to be represented.
(d) A decree appointing a guardian ad litem or trustee ad litem shall specify the period or proceeding during which the guardian ad litem or trustee ad litem shall act as such.
Note: Rule 5.5 is based upon former Rule 12.4, with some modifications to provide for a person believed to be incapacitated under the provisions of Chapter 55 of Title 20, but not yet adjudicated as such or for whom no guardian is known to have been appointed.
Rule 5.6. Appointment of a Guardian for the Estate or Person of a Minor.
(a) Contents of Petition. Separate petitions for each minor must be filed requesting the appointment of a guardian of the estate or person of each such minor. In addition to the requirements provided by the Rules in Chapter III, the petition shall set forth the following:
(1) the name, address and relationship of the petitioner to the minor;
(2) the name, address and age of the minor;
(3) the names and addresses of his or her parents, if living, and whether the minor's parents consent to the petition if the petition is not being filed by the minor's parents;
(4) the need for the appointment of a guardian;
(5) if the petition is filed due to the death of the minor's parent or legal guardian, or if the minor is to receive property under a will, deed or other written instrument conveying property whether the petitioner knows if the parent, legal guardian or decedent appointed a guardian for the minor in his or her will, deed or any other written instrument, and if so, the name of such proposed guardian;
(6) that the minor has no guardian presently appointed 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 order discharging or removing the previously appointed guardian;
(7) the name, address and age of the proposed guardian and his or her relationship to the minor, if any;
(8) 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;
(9) if the minor is fourteen years of age or older, the preference of the minor, if any, as to who should be appointed as guardian;
(10) if the petition is for the appointment of a guardian of the person, the religious persuasion of the minor's parents and the religious persuasion of the proposed guardian;
(11) if the petition is for the appointment of a guardian of the estate of the minor, an itemization of the assets of such estate, their location, approximate value and income, if any;
(12) if the minor is entitled to receive any property as a party to any court action or proceeding, a reference to the court record and the amount of the property to which the minor is entitled; and
(13) 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 or her by the United States Veterans' Administration, or its successor.
(b) Exhibits. The following shall be attached to the petition:
(1) the proposed guardian's written consent to the appointment;
(2) the written consents of the minor's parents to the petition if they are not the petitioners and if they consent to the petition; and
(3) a copy of decedent's will, deed, or other written instrument referenced in subparagraph (a)(5) of this Rule that appoints a guardian.
(c) If the minor is fourteen years of age or older, the minor shall appear in court at the time of the hearing, if any.
Note: Rule 5.6 is derived from former Rule 12.5.
Explanatory Comment: In a change from former Rule 12.5, Rule 5.6 requires separate petitions for each minor even if the same person is proposed as the guardian of the estates or persons of several minors. Separate Accounts must be filed for the estate of each minor. See Rule 2.3. Additionally, petitioner must attach a copy of any known written instrument that appoints a guardian to receive property or proceeds on behalf of a minor. See 20 Pa.C.S. § 5115. As used in (a)(5) and (a)(12) of this Rule, ''property'' includes cash and cash proceeds.
Rule 5.7. Appointment of a Trustee.
(a) Contents of Petition. A petition for the appointment of a trustee may be filed by a resigning trustee, the current trustee or any trust beneficiary and shall conform to the requirements provided by the Rules in Chapter III and set forth the following:
(1) the situs of the trust and if any court previously has exercised jurisdiction over the trust;
(2) the provisions of the instrument creating the trust;
(3) the general character, location, and value of the trust property;
(4) the reasons why any individual or corporation named in the trust instrument as trustee or successor trustee is unable or unwilling to serve;
(5) the names, addresses and relationships of all interested parties and whether those who have not joined in or consented to the petition have been given notice of the filing of the petition, or the reason for failing to give any interested party notice;
(6) the name and address of the proposed trustee and his or her relationship, if any, to any interested party; and
(7) whether the proposed trustee has any interest in the trust.
(b) Exhibits. The following shall be attached to the petition:
(1) a copy of the trust instrument;
(2) the proposed trustee's written consent to the appointment;
(3) the signed written consents of all interested parties who have not signed or joined in the petition, but who consent to the appointment of the proposed trustee; and
(4) if issued, the consent or letter of acquiescence from the Office of the Attorney General if required under 20 Pa.C.S. § 7764(d)(2).
Note: Rule 5.7 is based upon former Rule 12.6.
Explanatory Comment: See 20 Pa.C.S. § 7764.
Rule 5.8. Discharge of Fiduciary and Surety.
(a) Account Previously Filed. A petition for the discharge of a fiduciary and his or her surety, or of the surety alone, subsequent to an Account having been filed and confirmed, shall conform to the requirements provided by the Rules in Chapter III and set forth the following:
(1) the nature of the fiduciary capacity;
(2) the date and a reference to the record of the fiduciary's appointment;
(3) the date of filing the fiduciary's Account and the date of the court's adjudication or order confirming the Account; and
(4) that the entire estate has been distributed to the creditors and parties entitled thereto and that no other property belonging to the estate has been received or remains to be accounted for by the fiduciary.
(b) Account Annexed. In lieu of filing and advertising an Account, a personal representative who is distributing an estate under the provisions of 20 Pa.C.S. § 3531, or the guardian of the estate of a minor who has attained majority and whose gross estate does not exceed the statutory limitation of an administration without appointment of a guardian, may annex an Account to the petition for discharge with the information required above, modified to indicate any previous distribution, and suggesting the proper distribution of any balance on hand.
Note: Rule 5.8 is based upon former Rule 12.7.
Explanatory Comment: Pursuant to Rule 2.9(b), an adjudication of an Account discharges the fiduciaries as to the transactions set forth in the adjudicated Account.
Rule 5.9. Partition.
In addition to the requirements provided by the Rules in Chapter III, a petition for partition shall set forth the following:
(a) the date of the decedent's death and whether he or she died testate or intestate, in whole or in part;
(b) a description, giving the size and location, of the property to be partitioned, the liens and charges to which it is subject and the rents due from tenants thereof, and that the property has not been partitioned or valued for partition;
(c) the name, address and relationship of those interested in the land to be partitioned, the extent of the interest of each of such persons, and, if such interest is created by a recorded deed or will, a reference to such record; and
(d) a request for a citation upon the interested parties who have not joined in or consented to the petition to appear and show cause why an inquest in partition should not be granted.
Note: Rule 5.9 is substantively identical to former Rule 12.8.
Rule 5.10. Public Sale of Real Property.
(a) In addition to the requirements provided by the Rules in Chapter III, a petition for the public sale of real property shall set forth the reason for filing the petition, a description, stating the size and location of the property to be sold, and the liens and charges to which it is subject.
(b) Public notice of the sale shall be given as required by law and as may be further required by local rule or as the court may order in a particular matter.
Note: Rule 5.10 is substantively identical to former Rule 12.9.
Rule 5.11. Private Sale of Real Property or Options Therefor.
(a) Contents of Petition. In addition to the requirements provided by the Rules in Chapter III, a petition for the private sale or exchange of real property, or for the grant of an option for any such sale or exchange shall set forth the following:
(1) the information required in a petition for the public sale of real property under Rule 5.10(a); and
(2) the name and address of the proposed purchaser and the terms of the proposed sale, exchange or option, the consideration therefor, and that this consideration is more than can be obtained at public sale.
(b) Exhibits. The petition shall be supported by the affidavits of at least two competent persons setting forth that they have inspected the real property to be sold, exchanged or optioned, that they are not personally interested in the proposed sale, exchange or option, that they are acquainted with the value of real estate in the area, that in their opinion the proposed consideration is more than can be obtained at public sale, and in the case of an exchange, that they are acquainted with the value of real estate in the locality of the property to be received.
Note: Rule 5.11 is substantively identical to former Rule 12.10.
Rule 5.12. Mortgage or Lease of Real Property.
In addition to the requirements provided by the Rules in Chapter III, a petition to mortgage or lease real property shall set forth the following:
(a) the information required in a petition for the public sale of real property under Rule 5.10(a), as far as practicable; and
(b) the name of the proposed mortgagee or lessee and the terms of the proposed mortgage or lease.
Note: Rule 5.12 is substantively identical to former Rule 12.11.
Rule 5.13. Inalienable Property.
In addition to the requirements provided by the Rules in Chapter III, a petition under Chapter 83 of Title 20 shall set forth the facts required by 20 Pa.C.S. § 8301, as applicable, and the following:
(a) the names of all interested parties who have not joined in or consented to the petition, and their addresses, if known; and
(b) if the petition is for the public or private sale of real property subject to a life estate with remainder over and the real property is not held in trust, the petition shall request the appointment of a named trustee to make the sale and hold the proceeds in trust.
Note: Rule 5.13 is substantively identical to former Rule 12.12.
Rule 5.14. Designation of a Successor Custodian.
A petition for the designation of a successor custodian under the Pennsylvania Uniform Gifts to Minors Act shall conform to the requirements provided by the Rules in Chapter III and set forth as far as practicable the information required in a petition for the appointment of a guardian of the estate of a minor.
Note: Rule 5.14 is substantively identical to former Rule 12.13.
Rule 5.15. Confirmation of Trustee Appointment.
(a) Contents of Petition. Where an initial or successor trustee is appointed pursuant to a trust instrument or by the unanimous agreement of all qualified beneficiaries (as defined in 20 Pa.C.S. § 7703) pursuant to 20 Pa.C.S. § 7764, a petition for the court to confirm such appointment shall conform to the requirements provided by the Rules in Chapter III and shall set forth the following:
(1) the reason for filing the petition; and
(2) the pertinent provisions of the instrument creating the trust and providing for the appointment of the trustee.
(b) Exhibits. The following shall be attached to the petition:
(1) a copy of the trust instrument duly certified by counsel to be a true and correct copy; and
(2) the designated trustee's written consent to serve.
Note: Rule 5.15 is substantively identical to former Rule 12.14.
CHAPTER VI. (Reserved)
CHAPTER VII. RULES RELATING TO PRE-HEARING AND HEARING PROCEDURE
7.1. Depositions, Discovery, Production of Documents and Perpetuation of Testimony. 7.2. Motion for Judgment on the Pleadings. 7.3. Motion for Summary Judgment. 7.4. Injunctions.
Rule 7.1. Depositions, Discovery, Production of Documents and Perpetuation of Testimony.
The court, by local rule or order in a particular matter, may prescribe the practice relating to depositions, discovery, production of documents and perpetuation of testimony. To the extent not provided for by local rule or an order governing a particular matter, the practice relating to depositions, discovery, production of documents and perpetuation of testimony shall conform to the practice in the Trial or Civil Division of the local Court of Common Pleas.
Note: Rule 7.1 is identical to former Rule 3.6.
Rule 7.2. Motion for Judgment on the Pleadings.
After the relevant pleadings are closed, but within such time as not to unreasonably delay the hearing, any party may move for judgment on the pleadings. The court shall enter such judgment or order as shall be proper on the pleadings.
Note: Rule 7.2 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. No. 1034.
Explanatory Comment: The Official Note to Pa.R.C.P. No. 1034 is fully incorporated by reference herein, except that the court may, but is not required to, promulgate local rules governing the procedure for these motions.
Rule 7.3. Motion for Summary Judgment.
(a) After the relevant pleadings are closed, but within such time as not to unreasonably delay a hearing, any party may move for summary judgment in whole, or in part, as a matter of law in the manner set forth in Pa.R.C.P. Nos. 1035.1, 1035.2, and 1035.4.
(b) The party against whom the motion for summary judgment is filed shall respond in accordance with Pa.R.C.P. Nos. 1035.3(a)—(b) and 1035.4.
(c) The court shall rule upon the motion for summary judgment as provided in Pa.R.C.P. Nos. 1035.3(c)—(e) and 1035.5.
Note: Rule 7.3 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. No. 1035.1 et seq.
Explanatory Comment: The Notes, Official Note and Explanatory Comments to Pa.R.C.P. No. 1035.1 et seq. are incorporated by reference herein, except that the court may, but is not required to, promulgate local rules governing the procedure for these motions.
Rule 7.4. Injunctions.
Upon petition, the court may issue a preliminary, special, or permanent injunction in accordance with the rules and procedures provided in Pa.R.C.P. No. 1531.
Note: Rule 7.4 has no counterpart in former Orphans' Court Rules, but is derived from Pa.R.C.P. No. 1531.
Explanatory Comment: With the repeal of 20 Pa.C.S. § 772, the propriety of and procedure for obtaining an injunction in an Orphans' Court matter was uncertain. This Rule clarifies that an injunction may be requested and issued in this court. The procedure for requesting the issuance of an injunction shall conform to the practice set forth in Pa.R.C.P. No. 1531. The Notes and Explanatory Comments to Pa.R.C.P. No. 1531 are fully incorporated by reference herein.
CHAPTER VIII. RECONSIDERATION
8.1. Exceptions and Post-Trial Motions. 8.2. Motions for Reconsideration.
Rule 8.1. Exceptions and Post-Trial Motions.
Except as provided in Rule 8.2, no exceptions or post-trial motions may be filed to any order or decree of the court.
Explanatory Comment: The former exception practice is discontinued, and this Rule clarifies that post-trial motion practice applicable in the Civil Division of the Court of Common Pleas is not applicable in the Orphans' Court Division.
Rule 8.2. Motions for Reconsideration.
(a) By motion, a party may request the court to reconsider any order that is final under Pa.R.A.P. 341(b) or 342, or interlocutory orders subject to immediate appeal under Pa.R.A.P. 311, so long as the order granting reconsideration is consistent with Pa.R.A.P. 1701(b)(3).
(b) Upon a motion to do so, a court may reconsider an interlocutory order at any time.
(c) Motions for reconsideration are not permitted to any order in involuntary termination or adoption matters under the Adoption Act, 23 Pa.C.S. § 2101 et seq.
Explanatory Comment: The period for filing an appeal is not tolled by the filing of a motion for reconsideration unless the court grants the motion for reconsideration prior to the expiration of the appeal period. See Pa.R.A.P. 1701(b)(3). Interlocutory orders may be reconsidered anytime during the pendency of the proceeding. See Key Automotive Equip. Specialists, Inc. v. Abernethy, 636 A.2d 1126, 1128 (Pa. Super. 1994); 42 Pa.C.S. § 5505.
CHAPTER IX. AUDITORS AND MASTERS
9.1. Notice of Hearings. 9.2. Filing of Report. 9.3. Form of Auditor's Report. 9.4. Form of Master's Report. 9.5. Transcript of Testimony. 9.6. Notice of Filing Report. 9.7. Confirmation of Report. 9.8. Security for Expenses and Fees.
Rule 9.1. Notice of Hearings.
An auditor or master appointed pursuant to 20 Pa.C.S. § 751 shall give notice of scheduled hearings in such manner and to such parties as local rules shall prescribe.
Note: Rule 9.1 is substantively identical to former Rule 8.1.
Rule 9.2. Filing of Report.
An auditor or master shall file his or her report within 90 days after his or her appointment, unless the court extends the time upon request.
Note: Rule 9.2 is based upon former Rule 8.2.
Rule 9.3. Form of Auditor's Report.
An auditor's report shall include a statement of the questions involved, findings of fact, conclusions of law, and, if the Account is approved by the auditor, it shall also expressly confirm the Account and shall specify, or indicate by reference to the petition of adjudication/statement of proposed distribution, the names of the persons to whom the balance available for distribution is awarded and the amount or share awarded to each of such persons.
Note: Rule 9.3 is identical to former Rule 8.3.
Rule 9.4. Form of Master's Report.
A master's report shall state the number, times, dates and duration of the hearings held, the number, extent and causes of any delays or continuances, and the basis of the court's jurisdiction, and shall include a statement and discussion of the questions involved, findings of fact and conclusions of law, and specific recommendations.
Note: Rule 9.4 is identical to former Rule 8.4.
Rule 9.5. Transcript of Testimony.
The transcript of testimony taken before an auditor or master shall be filed with the report.
Note: Rule 9.5 is identical to former Rule 8.5.
Rule 9.6. Notice of Filing Report.
An auditor or master shall give notice of the filing of the report or of the intention to file the report in such manner and to such parties as local rules shall prescribe.
Note: Rule 9.6 is identical to former Rule 8.6.
Rule 9.7. Confirmation of Report.
(a) The report of an auditor shall be confirmed in such manner as local rules shall prescribe.
(b) The report of a master shall not be approved until a decree is entered adopting its recommendations.
Note: Rule 9.7 is identical to former Rule 8.7.
Rule 9.8. Security for Expenses and Fees.
An auditor or master, the accountant, or any interested party may apply to the court at any time for leave to require security for the payment of the auditor's or master's expenses and fees, and, when such leave is granted, the auditor or master may decline to proceed until security is entered.
Note: Rule 9.8 is substantively identical to former Rule 8.8.
CHAPTER X. REGISTER OF WILLS
10.1. Forms. 10.2. Petition Practice. 10.3. Hearings. 10.4. Appeals from the Register of Wills. 10.5. Notice to Beneficiaries and Intestate Heirs. 10.6. Status Report by Personal Representative.
Rule 10.1. Forms.
The forms approved by the Supreme Court for statewide practice before the Register as set forth in the Appendix shall be used. No other forms shall be allowed or required by local rule or practice in such instances.
Note: Rule 10.1 is new, but is derived from former Rule 10.1.
Explanatory Comment: Rule 10.1 has been modified from former Rule 10.1 by now mandating the exclusive use of statewide forms promulgated by the Supreme Court. See Rule 1.8.
Rule 10.2. Petition Practice.
When a matter requires the Register to exercise discretion or decide an issue of fact or law, the pleading and practice shall conform as near as practical to the practice and procedure before the court as provided by Chapter III of these Rules and 20 Pa.C.S. § 906 (relating to caveats). The Register may issue a citation if appropriate and may require a party to prepare the form of citation. Service of citations issued by the Register shall be the responsibility of the party requesting the issuance of the citation.
Note: Rule 10.2 is new.
Rule 10.3. Hearings.
(a) Evidentiary hearings before the Register shall be recorded by stenographic or electronic means when directed by the Register or requested by an interested party, the cost of which shall be allocated as directed by the Register.
(b) The Register may issue subpoenas to compel attendance at evidentiary hearings as provided in 20 Pa.C.S. § 903(1).
(c) The Pennsylvania Rules of Evidence shall apply in all evidentiary hearings before the Register.
(d) The Register may require parties to submit memoranda and/or proposed findings of fact and conclusions of law.
(e) The Register shall promptly decide the matter at issue by written order or decree. The order or decree may, but need not, contain a brief opinion or recitation of relevant facts and legal conclusions as found by the Register.
Note: Rule 10.3 is new.
Explanatory Comment: In any matter, the Register or the Register's designee may hold an informal conference to narrow or define the issues, consider the necessity or desirability of amendments to the pleadings, obtain admissions of fact and stipulations as to documents, or to otherwise aid in the disposition of the matter.
Rule 10.4. Appeals from the Register of Wills.
Appeals to the court from an order or decree of the Register shall be by petition and governed by Chapter III of these Rules and any applicable local rules.
Note: Rule 10.4 is new, but is derived from former Rule 10.2.
Rule 10.5. Notice to Beneficiaries and Intestate Heirs.
(a) Within three (3) months after the grant of letters, the personal representative to whom original letters have been granted or the personal representative's counsel shall send a written notice of estate administration in the form approved by the Supreme Court to:
(1) every person, corporation, association, entity or other party named in decedent's will as an outright beneficiary whether individually or as a class member;
(2) the decedent's spouse and children, whether or not they are named in, or have an interest under, the will;
(3) where there is an intestacy in whole or in part, to every person entitled to inherit as an intestate heir under Chapter 21 of Title 20;
(4) the appointed guardian of the estate, parent or legal custodian of any beneficiary who is a minor;
(5) the appointed guardian of the estate or, in the absence of such appointment, the institution or person with custody of any beneficiary who is an adjudicated incapacitated person;
(6) the Attorney General on behalf of any charitable beneficiary (i) which is a residuary beneficiary, including as a beneficiary of a residuary testamentary trust; (ii) whose legacy exceeds $25,000; or (iii) whose interest in a legacy will not be paid in full;
(7) the Attorney General on behalf of any governmental beneficiary;
(8) the trustee of any trust which is a beneficiary; and
(9) such other persons and in such manner as may be required by local rule.
(b) A ''beneficiary'' shall be deemed to include any person who may have an interest by virtue of the Pennsylvania anti-lapse statute, 20 Pa.C.S. § 2514.
(c) Notice shall be given by personal service or by first-class, prepaid mail to each person and entity entitled to notice under subparagraph (a)(1)—(9) whose address is known or reasonably available to the personal representative.
(d) Within ten (10) days after giving the notice required by paragraph (a) of this Rule, the personal representative or the personal representative's counsel shall file with the Register a certification that notice has been given as required by this Rule.
(e) Upon the failure of the personal representative or the personal representative's counsel to file the certification on a timely basis, the Register shall, after ten (10) days subsequent to providing written notice to the delinquent personal representative and his counsel, notify the court of such delinquency.
(f) This Rule shall not alter or diminish existing rights or confer new rights.
(g) The Register shall deliver a copy of Rule 10.5 and the forms of notice and certification approved by the Supreme Court to each personal representative not represented by counsel at the time letters are granted.
Note: Rule 10.5 is substantively identical to former Rule 5.6, except that subparagraph (d) of this Rule no longer prohibits the Register from charging a fee for filing this certification. The form of notice and certification of notice required by Rule 10.5 is set forth in the Appendix. Subparagraph (e) of this Rule is not intended to limit the inherent power of the court to impose sanctions upon a delinquent personal representative or counsel.
Explanatory Comment: It is not the intention of this Rule to require notice beyond the degree of consanguinity entitling a person to inherit under Chapter 21 of Title 20.
Rule 10.6. Status Report by Personal Representative.
(a) Report of Uncompleted Administration. If administration of an estate has not been completed within two years of the decedent's death, the personal representative or counsel shall file at such time, and annually thereafter until the administration is completed, a report with the Register showing the date by which the personal representative or his, her, or its counsel reasonably believes administration will be completed.
(b) Report of Completed Administration. Upon completion of the administration of an estate, the personal representative or his, her or its counsel shall file with the Register a report showing:
(1) completion of administration of the estate;
(2) whether a formal Account was filed with the Orphans' Court;
(3) whether a complete Account was informally stated to all parties in interest;
(4) whether final distribution has been completed; and
(5) whether approvals of the Account, receipts, joinders and releases have been filed with the clerk.
(c) Form of Status Report. The report required by this Rule shall be in the form approved by the Supreme Court.
(d) Copy of Rule. Upon the grant of letters, the Register shall give a copy of Rule 10.6 to each personal representative not represented by counsel.
(e) Failure to File a Status Report. After at least ten (10) days subsequent to providing written notice to a delinquent personal representative and counsel, the Register shall inform the court of the failure to file the report required by this Rule with a request that the court conduct a hearing to determine what sanctions, if any, should be imposed.
Note: Rule 10.6 is based upon former Rule 6.12, except that this Rule no longer includes former subparagraph (d) that prohibited the Register from charging a fee for filing the status report. The form of status report required by Rule 10.6 is set forth in the Appendix.
CHAPTER XI. (Reserved)
CHAPTER XII. (Reserved)
CHAPTER XIII. (Reserved)
[RULE 14. GUARDIANSHIP] CHAPTER XIV. GUARDIANSHIPS OF INCAPACITATED PERSONS
Rule 14.1. [Local rules] (Reserved).
[The practice and procedure with respect to incapacitated persons' shall be as prescribed by local rules, which shall not be inconsistent with Rules 14.2—14.5.]
Note: See Rule 1.5.
Rule 14.2 Adjudication of [incapacity and appointment of a guardian of the person and/or estate of an incapacitated person] Incapacity and Appointment of a Guardian of the Person and/or Estate of an Incapacitated Person.
A petition to adjudicate [incapacity] an individual as an incapacitated person shall meet all requirements set forth at 20 Pa.C.S. § 5511. A citation and notice in the form approved by the Supreme Court shall be attached to and served with a petition. The procedure for [determination of] determining incapacity and for appointment of a guardian shall meet all requirements set forth at 20 Pa.C.S. §§ 5512 and 5512.1.
[Committee Comment—2006: The form of citation and notice formerly found in the body of rule 14.5 has been moved to the Appendix.]
Explanatory Comment: See Rule 14.5(a) for form of citation and notice.
Rule 14.3. Review [hearing] Hearing.
A petition for a review hearing shall set forth:
[(1)] (a) the date of the adjudication of incapacity;
[(2)] (b) the name and address of the guardian;
[(3)] (c) if the incapacitated person has been a patient in a mental [hospital] health facility, the name of such [institution] facility, the date of admission, and the date of discharge;
[4)] (d) the present address of the incapacitated person, and the name of the person with whom the incapacitated person is living;
[(5)] (e) the names and addresses of the presumptive adult heirs of the incapacitated person; and
[(6)] (f) an averment that:
[(i)] (1) there has been significant change in the incapacitated person's capacity;
[(ii)] (2) there has been a change in the need for guardianship services; or
[(iii)] (3) the guardian has failed to perform duties in accordance with the law or act in the best interest of the incapacitated person.
[Official Note: See 20 Pa.C.S. § 5512.2.]
Explanatory Comment: For the court's disposition of a petition for a review hearing and evidentiary burden of proof, see 20 Pa.C.S. § 5512.2.
Rule 14.4. Proceedings [relating to real estate] Relating to Real Estate.
A petition for the public or private sale, exchange, lease, or mortgage of real estate of an incapacitated person or the grant of an option for the sale, exchange or lease of the same shall conform as far as practicable to the requirements of these [rules] Rules for personal representatives, trustees and guardians of minors in a transaction of similar type.
Rule 14.5. [Form of citation and notice] Forms.
[The citation and notice to be attached to and served with a petition for adjudication of incapacity and appointment of guardian shall be substantially in the form approved by the Supreme Court.
Committee Comment—2006: The form of citation and notice formerly found in the body of Rule 14.5 has been moved to the Appendix.]
The following forms located in the Appendix shall be used exclusively.
(a) Important Notice—Citation with Notice;
(b) Annual Report of Guardian of the Estate;
(c) Annual Report of Guardian of the Person; and
(d) Guardian's Inventory.
Explanatory Comment: In accordance with Rule 1.8, these forms must be used exclusively and cannot be replaced or supplanted by a local form.
[RULE 15] CHAPTER XV. ADOPTIONS * * * * *
[RULE 16] CHAPTER XVI. PROCEEDINGS PURSUANT TO SECTION 3206 OF THE ABORTION CONTROL ACT
[Official] Note: The right of a minor to petition the court for consent under Section 3206(c), 18 Pa.C.S. § 3206(c), shall be carried forth pursuant to the following procedures:
Rule 16.1. Definitions[.]; Scope.
(a) As used in this Rule , the following words shall have the following meaning:
[''act'' means] ''Act''—the Act of June 11, 1982, P. L. 476, No. 138, as amended, 18 Pa.C.S. [Section] § 3201 et. seq., known as the Abortion Control Act[.];
[''applicant'' means] ''Applicant''—a pregnant woman: (i) who is less than eighteen years of age and not emancipated or (ii) a person acting on behalf of a pregnant woman who has been adjudged an incapacitated person pursuant to Chapter 55 of [the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. Section 5501, et seq.] Title 20 (relating to incapacitated persons);
[''application'' includes] ''Application''—a legal paper, including a motion or petition;
[''court'' means] ''Court''—the Orphans' Court Division of the Court of Common Pleas, except in proceedings brought: (a) in Philadelphia in which the applicant is a minor in which case the term ''court'' means the Family Court Division; (b) in Allegheny County where said proceedings shall be heard in the Juvenile Court Section of the Family Court Division;
[Official] Note: See Rule of Judicial Administration 2157 governing distribution of business within courts of common pleas.
[''proceeding'' means] ''Proceeding''—a proceeding pursuant to Section 3206(c) of the Act, 18 Pa.C.S. [Section] § 3206(c).
[Official] Note: Section 3206(c) of the Abortion Control Act relates to proceedings seeking authorization for a physician to perform an abortion.
(b) The procedure set forth in [Rule] Chapter 16 shall govern proceedings pursuant to Section 3206(c) of the Act, 18 Pa.C.S. [Section] § 3206(c).
[Official] Note: These rules implement Section 3206 of the Abortion Control Act and work with that section to provide a full procedure. Procedures which are set forth in that section rather than the rules include the following:
1. Participation in the proceeding and representation by an attorney, Section 3206(e). The court shall be responsible for adopting a procedure to assure that the court advises the pregnant woman of her right to counsel and that counsel is appointed upon her request;
2. Conduct of the hearing, including the exclusion of persons, evidence to be heard and notices to be given the applicant, Section 3206(f)(3) and (4) and Section 3206(h); and
3. Specific factual findings and legal conclusions by the court in writing, Section 3206(f)(1).
Section 3206 of the Act provides for an ''expedited [appeal''.] appeal.'' See Rule 3801 et seq. of the Rules of Appellate Procedure, which provide a complete procedure governing the appeal.
Pa.R.A.P. 3804 requires that the court reporter, without charge to the applicant, transcribe the notes of testimony and deliver them to the clerk of the court by 5:00 o'clock p.m. of the business day following receipt of the notice of appeal to the Superior Court.
Rule 16.2. Confidentiality.
(a) The proceeding shall be confidential.
[Official] Note: See [subdivision] subparagraph (b) of this rule governing the sealing of the record. See Rule 16.6 for provisions governing docketing. See Section 3206(f)(3) of the Act for the exclusion of persons from the hearing.
(b) The record, including the application, pleadings, submissions, transcripts, exhibits, orders, evidence, findings and conclusions and any other written material to be maintained, shall be sealed.
(c) The identity of the applicant shall not be disclosed in any decision of the proceeding.
Rule 16.3. Precedence of Proceeding.
The proceeding shall be given such precedence over other pending matters as will ensure that the court renders a decision within three business days of the date of the filing of the application.
Rule 16.4. Commencement[.]; Venue[.]; No Filing Fees.
(a) The proceeding shall be commenced by filing an application in the appropriate division of the court of common pleas of the county in which the applicant resides or in which the abortion is sought.
(b) No filing fees or court costs shall be required of the applicant.
Rule 16.5. Application[.]; Contents[.]; Form of Verification[.]; Assistance in Preparation.
(a) The application shall set forth the following:
(1) the initials of the applicant;
(2) the age of the applicant;
(3) the names and addresses of each parent, guardian or, if the petitioner is a minor whose parents are deceased and no guardian has been appointed, any other person standing in loco parentis to the applicant;
(4) a statement that the applicant has been fully informed of the risks and consequences of the abortion;
(5) a statement whether the applicant is of sound mind and has sufficient intellectual capacity to consent to the abortion;
(6) a prayer for relief asking the court to enter an order authorizing a physician to perform an abortion upon applicant;
(7) an unsworn verification by the applicant stating that the information therein is true and correct and that the applicant is aware that any false statements made in the application are subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities; and
(8) the signature of the applicant, which may consist of the applicant's initials.
(b) Where necessary to serve the interest of justice, the court shall refer the applicant to the appropriate personnel for assistance in preparing the application.
[Committee Comment—2006: The form of unsworn verification previously found in subdivision (b) has been deleted. This unsworn verification required by subdivision (a)(7) is the standard form of verification made subject to the penalties of Section 4904 of the Crimes Code, 18 Pa.C.S. § 4904.
Forms formerly found in rule 16.11 and 16.12 for applications and separate unsworn verifications by minors have been moved to the Appendix.]
Rule 16.6. Dockets[.]; Document Maintenance.
(a) Each court shall maintain a sealed docket which is not open to public inspection.
(b) The proceeding shall be docketed by case number only.
(c) The name or initials of the applicant shall not be entered on any docket which is subject to public inspection.
(d) Documents pertaining to the proceeding shall be maintained in a closed file which shall be marked ''confidential'' and identified by the case number only.
Rule 16.7. (Reserved).
Rule 16.8. (Reserved).
Rule 16.9. (Reserved).
Rule 16.10. Form; Generally.
The form of application by a minor and form of separate unsworn verification shall be prepared and filed in substantial conformity with the forms approved by the Supreme Court.
[Explanatory] Note: Additional averments will be required for an application filed on behalf of a person who has been adjudged an incapacitated person pursuant to Chapter 55 of [the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. Section 5501, et seq.] Title 20 (relating to incapacitated persons).
[Committee Comment—2006: Forms formerly found in Rules 16.11 and 16.12 for applications and verifications by minors have been moved to the Appendix.]
Rule 16.11. (Reserved).
[Committee Comment—2006: The form formerly found in Rule 16.11 for application by a minor has been moved to the Appendix.]
Rule 16.12. (Reserved).
[Committee Comment—2006: The form formerly found in Rule 16.12 for unsworn verification by a minor has been moved to the Appendix.]
ORPHANS' COURT PROCEDURAL RULES COMMITTEE REPORT
Rescission and Replacement of Pennsylvania Orphans' Court Rules 1.1 through 13.3 and Rule 17, with Amendment of Rules 14.1 through 16.12
Given that the last substantial revision to the Supreme Court Orphans' Court Rules occurred in November 1975, with an effective date of January 1, 1976, then-Chief Justice Ralph J. Cappy of the Supreme Court of Pennsylvania approved a proposal by the Orphans' Court Procedural Rules Committee (the ''Committee'') to review and elaborate upon the skeletal collection of prior rules governing statewide practice and procedure. Publicly announcing this project on October 17, 2007, Chief Justice Cappy explained that the ''intent here is to simplify the current system and standardize governing procedures so everyone has a clearer idea of what is expected and better outcomes are realized for the citizens of Pennsylvania.''
The Committee thereafter published a proposal for new Orphans' Court Rules on April 13, 2013 in the Pennsylvania Bulletin, 43 Pa.B. 2010, with a comment period that expired on June 13, 2013. The Committee received numerous comments which were thoroughly reviewed and vetted. Where necessary or deemed appropriate the Committee revised the published proposal based upon the comments received. The Committee then submitted a revised draft of these proposed new Orphans' Court Rules to the Pennsylvania Supreme Court (the ''Court'') with a recommendation for their adoption. The Court adopted the following rules by Order dated December 1, 2015, with an effective date of September 1, 2016.
It is the Committee's intent and belief that the recently adopted Supreme Court Orphans' Court Rules (the ''O.C. Rules'' or ''Rules'') will standardize procedures throughout the Commonwealth for presenting and having disputes adjudicated in the orphans' court divisions of the courts of common pleas and will promote uniformity in the content of pleadings. These new statewide O.C. Rules are intended to accomplish the following three objectives:
(1) promote a standard statewide practice and reduce variations caused by reliance on local practice;
(2) provide clear procedures to practitioners and judges throughout the state, especially those in counties without dedicated orphans' court divisions; and
(3) harmonize orphans' court proceedings with general civil practice to the extent possible.
The Committee is aware that, with respect to the adjudication and confirmation of accounts, Title 20 (the Probate, Estates and Fiduciaries Code) distinguishes between counties having a separate orphans' court division and those counties having no separate orphans' court division. 20 Pa.C.S. §§ 3511, 3512. The Committee analyzed these statutory provisions to determine whether this distinction required or warranted differing procedures for the filing of Accounts, the need to have accompanying petitions for adjudication/statements of proposed distribution filed with Accounts, and the procedures for providing notice to interested parties. In the end, the Committee recommended that a trust or estate beneficiary in a smaller county is entitled to the same notice, information and protection as a trust or estate beneficiary in a larger county with a separate orphans' court division. Consequently, these new O.C. Rules do not differentiate between judicial districts with and without a separate orphans' court division; but rather, these new Rules ensure that best procedural practices are mandated and followed throughout the Commonwealth. To the extent that uniform statewide procedures embodied in these O.C. Rules might be viewed as conflicting with the statutory provisions of 20 Pa.C.S. §§ 3511 and 3512, the Rules include a cross-reference to Pa.R.C.P. No. 133, which suspends all statutes addressing procedural aspects to the extent that such statutes are inconsistent with procedural rules.
The Committee also carefully considered which rules of civil procedure to cross-reference in these Rules, which rules of civil procedural to adopt and restate within the text of the Rules, and which rules of civil procedure not to incorporate because of irrelevancy or undue burdens. For example, the rules of civil procedure regarding discovery have not been incorporated herein, but rather the conduct of discovery is left to the local orphans' court, with a proviso defaulting to the rules of civil procedure only if not otherwise provided for by a local rule. In addition, where appropriate, the pertinent rules of civil procedure have been narrowly tailored, such as in Orphans' Court Rule 2.8, limiting the grounds upon which preliminary objections may be raised against the objections filed to an Account.
The new O.C. Rules reflect an attempt to strike a balance between increasing the number and breadth of procedural rules so that all parties throughout the Commonwealth are operating with known procedures while not unduly burdening these same participants with additional requirements. Having a standardized, detailed roadmap to orphans' court proceedings hopefully will enable practitioners to operate more efficiently, which in turn will improve the presentation of matters before the bench. In counties without separate, dedicated orphans' court divisions, these O.C. Rules will address many areas that were not covered in the skeletal collection of prior rules. Having the same established method operate in all sixty judicial districts will assist the appellate courts when a matter is appealed. The appellate courts will be able to more readily determine if there were any procedural defects in the proceeding below, and if so, whether these defects affected substantive rights. In the end, these developments will benefit litigants and the public at large.
The new rules are divided into sections addressing, inter alia, introductory matters and definitions, the filing and audit of Accounts, the procedures for initiating litigation by citation and petition, pre-hearing and post-hearing procedures, and rules for practice before the Registers of Wills. In brief summary,
• Chapter I contains introductory rules which consolidate and expand upon prior O.C. Rule 1 and prior O.C. Rule 2.
• Chapter II contains rules and procedures specific to the filing and auditing of Accounts and the resolution of issues and disputes through the audit or confirmation process. This Chapter encompasses and adds to the procedure previously found in prior O.C. Rule 6, prior O.C. Rule 9, and prior O.C. Rule 13.
• Chapter III sets forth rules and procedures concerning the resolution of issues and disputes through citations and notice petitions, which modifies and expands upon some of the procedures contained previously in prior O.C. Rule 3 and prior O.C. Rule 5.
• Chapter IV addresses general formatting rules, service upon individuals and entities who are acting in a representative capacity, service upon the Office of the Attorney General, the docketing and service of court orders, and the implementation of electronic filing. This Chapter relocates and amplifies upon procedures previously found in prior O.C. Rule 3 and prior O.C. Rule 5.
• Chapter V sets forth rules addressing specific petitions and for the most part contains rules that merely have been relocated from prior O.C. Rule 12, without substantial revisions.
• Chapter VI is being reserved for future use.
• Chapter VII provides rules relating to pre-hearing and hearing procedures, which includes prior O.C. Rule 3.6 and several new rules borrowed from civil practice.
• Chapter VIII provides new post-hearing procedures which dispense with former O.C. Rules 7.1 and 7.2.
• Chapter IX contains the rules previously found as part of prior O.C. Rule 8 regarding auditors and masters.
• Chapter X sets forth rules relating to practice before the Register of Wills, relocates and amends prior O.C. Rule 5.6 and prior O.C. Rule 6.12, and provides additional new rules.
The next three sequential Chapters (i.e., Chapters XI, XII, and XIII) have been reserved for future use, thereby allowing the guardianship rules, adoption rules and Abortion Control Act rules to remain with their present rule number prefixes of 14, 15, and 16, respectively.
In these O.C. Rules, there are instances where the new rule is substantially identical to its former counterpart and merely has been relocated to a new Chapter based upon the revised structure of these new Rules. (For example, Rules governing Specific Types of Petitions are moved from prior O.C. Rule 12 to Chapter V.) For this reason, following each O.C. Rule is a note indicating whether the rule derives from a prior O.C. Rule, either in total or with modifications, or whether the rule derives from a rule of civil procedure. The Committee has included these notes because it is believed that knowing the origins of a rule will help practitioners and jurists understand the purposes and effect of the rule, thereby aiding in a more proper implementation of the rule. Also, this information is intended to assist local courts and county bar committees in reviewing their local rules to determine the future placement of a current local rule that they wish to retain.
Many local rules promulgated before December 1, 2015 under previously existing O.C. Rules 1 to 13 and 17 will now be obsolete. Consequently, Orphans' Court Rule 1.5, governing the adoption and dissemination of local rules, provides that all existing local rules, except for local rules on guardianships, adoptions, and the Abortion Control Act, will be vacated as of September 1, 2016.
In addition, Orphans' Court Rule 1.5 requires courts to submit any proposed new local rule to the Committee for review and vetting prior to the local rule's promulgation and effective date. The Committee will review and analyze each proposed new local rule only insofar as to determine whether the proposed local rule is inconsistent with a Supreme Court Orphans' Court Rule. Rule 1.5 is modeled after its counterpart rule of criminal procedure. See Pa.R.Crim.P. 105.
Because under subparagraph (e) of new Rule 1.5, it is a prerequisite for the Committee to review and accept each proposed new local rule in advance of its promulgation, local courts must send all proposed new local rules to the Committee by June 1, 2016 so that the Committee has sufficient time to vet the proposed new local rules and send appropriate notices to the local courts before the sunset date of September 1, 2016. The Supreme Court has set forth these dates in its Order of December 1, 2015 re: Review and Vacatur of Local Orphans' Court Rules.
If proposed local rules are submitted to the Committee by June 1, 2016, the Committee will review the proposed local rules to ensure that the proposal is not inconsistent with any current existing Supreme Court O.C. Rule and, absent unforeseen circumstances, the Committee will issue notice to the local court before September 1, 2016 as to whether the local rule may be adopted and promulgated. After June 1, 2016, local courts should continue to submit proposed new local rules to the Committee for review and vetting as required by subparagraph (e) of new Orphans' Court Rule 1.5. However, with respect to proposed local rules submitted for Committee review after June 1, 2016, the Committee does not guarantee that it will be able to respond to the local court prior to September 1, 2016, when all currently existing local rules in Chapters 1 through 13 and 17 are vacated.
It is the Committee's belief that a review and redrafting of local rules will not prove to be difficult or time consuming for local courts and local county rule committees. First, the scope and breadth of the new Supreme Court O.C. Rules is so extensive and detailed that only a few areas will need to be covered by local rules. One of the purposes of the extensive set of new O.C. Rules is to eliminate the need for and presence of numerous and lengthy local orphans' court rules. Second, each new Supreme Court O.C. Rule has a note indicating the origins of that rule. It is anticipated that local county courts and county rule committees will be able to review the current local rules and determine whether to keep, redraft, or eliminate such local rules. The Committee hopes that the project of promulgating new local orphans' court rules will be one of primarily restructuring and reducing, and not one of redrafting and adding.
Subparagraph (d) of Rule 1.5 requires each local rule to correspond to its Supreme Court O.C. Rule counterpart. This subparagraph does not forbid use of a letter before or after the number of the local rule. Finally, while the Committee appreciates the place and importance of local rules to effective and efficient judicial administration, the Committee nevertheless expresses reservations about allowing a local court to dismiss a pleading or grant or deny relief based upon non-compliance with a local rule. Notwithstanding, subparagraph (h) of Rule 1.5 provides that a party can be sanctioned for repeated failures to comply with a local rule.
Highlighting specific rules and changes in practice
In a change from prior practice, Rule 1.8 and Rule 10.1 mandate exclusive use of Supreme Court-promulgated statewide forms. Because a goal of adopting these extensive and thorough statewide O.C. Rules is to implement best practices across the Commonwealth, the Supreme Court-promulgated forms must be used and filed exclusively. Uniformity and standardized practice across the Commonwealth will occur only when all practitioners are required to use, and all Registers and Clerks are required to accept, only Supreme Court-promulgated forms.
The Supreme Court-promulgated form that accompanies the filing of an Account as provided in Rule 2.4 is titled ''Petition For Adjudication/Statement of Proposed Distribution.'' This title, albeit verbose, accounts for the differences between counties with and without separate orphans' court divisions: in counties with separate orphans' court divisions, a petition for adjudication is presented when the Account is called for audit, whereas, in counties without separate orphans' court divisions, the Account is filed along with a statement of proposed distribution requesting confirmation and approval of the proposed distribution. By including both nomenclatures in the title of this form, the Committee means to indicate to practitioners and the bench that the form should be used and should accompany an Account filed in all counties regardless of whether the judicial district has a separate orphans' court division.
Chapter II provides a complete and comprehensive set of rules governing Accounts and the disposition of disputes through the Account process. This Chapter establishes standardized, statewide procedures for (i) preparing and formatting Accounts; (ii) filing Accounts and the accompanying petitions for adjudication/statements of proposed distribution; (iii) providing notice to interested parties that an Account and a distribution proposal has been filed with the court; (iv) raising and pursuing objections by interested parties to the Account or distribution proposal; and (v) obtaining court approval confirming or adjudicating the Account and authorizing distribution as proposed or as modified.
Following a practice currently in place in many counties, subparagraph (a) of Rule 2.4 requires the petition for adjudication/statement of proposed distribution to be filed with the Account. The benefits of filing the petition for adjudication/statement of proposed distribution simultaneously with the Account are as follows:
(1) interested parties are able to obtain a copy and review the petition for adjudication/statement of proposed distribution in advance so that they can then determine whether they have objections to the information and proposals in this pleading;
(2) the accountant or his or her counsel is compelled at the time of the Account's filing to review the governing instrument and determine if there are interpretation questions or potential disputes about distribution; and
(3) the court, if it is so inclined, can review the petition or statement in advance of the audit date or the last day for filing objections and notify the accountant or his or her counsel of deficiencies in the pleading or the absence of documents required to be attached.
Next, Rule 2.5 aims to standardized procedures for who is to be notified of an Account's filing, when and how such notice is to be given, and what must be contained or enclosed with the notice. Starting first with the interested parties to be notified of an Account's filing, the following new subparagraphs are worth noting. Subparagraph (b) of Rule 2.5 requires notice of the Account's filing to be sent to both counsel and the interested individual or entity even when such interested party is represented by counsel. Remembering that estates may take years to administer and trusts may continue for generations, it is commonplace for counsel to have represented an interested party in the filing of a prior Account or the resolution of an earlier dispute. Given that the prior Account was adjudicated or the prior dispute resolved, the attorney-client relationship may have terminated by the time the subject Account is filed. If the individual or entity does not receive notice of the Account's filing, then such individual or entity may remain uninformed and lose rights to review the instant Account and pursue new objections. Second, subparagraph (c) of Rule 2.5 provides that if the proposed distribution is to an estate of which a charity is a beneficiary or to a trust of which a charity is a ''qualified beneficiary'' as such term is defined in 20 Pa.C.S. § 7703, then notice of the Account's filing also must be sent to the Attorney General. Similarly, if the proposed distribution is to an estate or trust and one of the accountants stating the Account is a fiduciary of the receiving estate or trust, then notice of the Account's filing must be provided to the beneficiaries of the recipient estate or trust.
With respect to when and how notice is to be given, subparagraph (d) of Rule 2.5 requires written notice to be sent 20 days prior to the audit date in counties with separate orphans' court divisions or 20 days prior to the date when objections must be filed in counties without separate orphans' court divisions. If an audit is continued or the date for filing objections is extended, subparagraph (e) requires the mailing of additional notice to all parties who received the initial mailing, not simply those who may have already filed objections.
Lastly, in regards to the contents of the notice, subparagraph (h) of Rule 2.5 requires the position of the accountant to be stated as to (i) any known dispute; (ii) a question regarding a document's interpretation; and (iii) its understanding of the nature of each contested or unpaid claim. While the Committee is aware that some fiduciaries are reluctant to take a stance, preferring instead to be a ''stakeholder,'' it is imperative for the fiduciary as the accountant to expressly state a position. Without a stated position, the beneficiary and/or creditor receiving notice of the Account's filing cannot know whether to pursue objections because such beneficiary and/or creditor is not made aware of what relief is being requested of the court.
O.C. Rule 2.7 regarding objections expands upon prior O.C. Rule 6.10. In crafting this more detailed rule, the Committee reviewed the local rules of many counties and selected those provisions embodying best practices and explaining most clearly and comprehensively how objections should be pleaded and verified, and the time by which objections should be filed with the court.
With the repeal of the equity rules on January 1, 2004, the authority to file and the procedures for resolving preliminary objections to Account objections vanished, resulting in a medley of judicial responses that ranged from refusing to permit preliminary objections to relying upon the rules of civil procedure. O.C. Rule 2.8 rectifies this vacuum and is derived in part from Pa.R.C.P. No. 1028. With that said, Rule 2.8 differs from its civil counterpart by limiting permissible preliminary objections to only two grounds: (i) lack of jurisdiction over the subject matter, and (ii) lack of standing. By limiting preliminary objections to only these two grounds in the Account context, the Committee balanced the need for a procedure by which the court quickly can address and perhaps dismiss objections to an Account with concern from practitioners and the bench not to allow ''scorched earth'' litigation tactics that increase the costs and delay resolution. Specifically, a court's lack of jurisdiction over the estate or trust or a party's lack of standing to pursue objections is paramount to an orderly and expedient adjudication or confirmation of an Account. On the other hand, the exclusion of scandalous or impertinent matter is not essential to the orderly disposition of objections, but rather serves only to delay the proceeding and cause substantial fees to be incurred by the res of the trust or estate or by the objecting party. Lack of jurisdiction over the person would never be a proper objection because the adjudication or confirmation of an Account is an in rem proceeding, not an in personam proceeding. Lack of specificity is not an impediment to resolving objections and thus a preliminary objection on these grounds would not aid the court. In most instances, the objecting beneficiary does not have the means to provide more specificity to its objections; the assets and much of the relevant information concerning these assets is in the possession of the fiduciary who prepared the Account.
If a dispute is not brought before the orphans' court through the filing of an Account and the raising of objections, the other method by which to proceed in orphans' court is through the filing of a petition. The O.C. Rules contained in Chapter III are intended to have petition practice in orphans' court resemble as closely as possible petition practice in the other civil divisions. In fact, many of the Rules in Chapter III are derived from a particular rule of civil procedure as indicated by the notes appearing after each Rule in this Chapter.
Chapter V sets forth rules governing specific petitions. In all but one instance, these Rules are derived from rules contained in prior O.C. Rule 12. The one exception is O.C. Rule 5.1 governing declaratory petitions, which is based upon a particular local court rule. In the Committee's opinion, the prevalence of declaratory judgment actions in orphans' court warrants a specific rule governing these petitions.
Chapter VIII abolishes the long-standing tradition of Exception practice in orphans' court. The benefits and reasons for filing Exceptions are now historical. In a prior time, an en banc panel of orphans' court judges heard the Exceptions and determined whether the underlying order, decision, or adjudication should be vacated or amended. In today's practice, the jurist issuing the underlying opinion or order frequently is the only jurist considering the Exceptions. The practical effect is that Exceptions are considered and resolved today in much the same way that motions for reconsideration are considered and resolved, i.e., by the judge who was the trier of fact.
For this reason, there is no reason to have different appellate tracks for orphans' court matters and civil matters. Parties, practitioners, and jurists at both the lower court and appellate level benefit if the orphans' court division employs the same procedures as the civil division for purposes of having the trial judge reconsider the underlying decision and for pursuing the appeal from any underlying order or opinion. Thus, in the accompanying new Rules, Rule 8.1 eliminates and abolishes Exceptions practice. Rule 8.2 establishes procedures for filing motions for reconsideration. Because this is a new regime in orphans' court, the last clause of subparagraph (a) of Rule 8.2 attempts to make clear that the filing of a motion for reconsideration does not toll the thirty (30) day period for filing an appeal unless, before the expiration of those thirty (30) days, the lower court issues an order granting reconsideration. Lastly, in keeping with prior Exception practice, subparagraph (c) of Rule 8.2 prohibits motions for reconsideration in involuntary termination proceedings and adoption matters, which is consistent with the provisions of children's fast track appeals found in Pa.R.A.P. 904(f) and 1925(a)(2).
Lastly, the Committee believes the Rules in Chapter X strike the appropriate balance between keeping practice before the Register accessible to pro se individuals who cannot or do not wish to retain counsel and having uniform, statewide rules to ensure an orderly administration of quasi-judicial proceedings before the Register. These Rules, particularly Rule 10.3, establish uniform, predictable, and acceptable protocols for hearings conducted before the Register. In response to comments and concerns about the published proposal, the Committee did not recommend that all evidentiary hearings be recorded or transcribed or that the party initiating the hearing bear the costs of such recording and transcribing. Instead, subparagraph (a) of Rule 10.3 requires evidentiary hearings before the Register to be recorded or transcribed only when directed by the Register or requested by an interested party and the cost of this service is to be allocated among the parties as the Register directs. On the other hand, despite criticism, subparagraph (c) of this Rule, as did its counterpart in the published proposal, requires all evidentiary hearings before the Register to be conducted in accordance with the Pennsylvania Rules of Evidence. Justice is delayed and rendered ever more costly if the Registers are not required to adhere to the Pennsylvania Rules of Evidence, because on appeal to the orphans' court, the orphans' court will enforce and abide by the Pennsylvania Rules of Evidence. As a result, hearsay, unauthenticated documents, and unsubstantiated allegations admitted in the Register's hearing no longer will be admissible, which could result in the orphans' court reversing the decision of the Register. In the Committee's opinion, it is better for all interested parties if the inadmissible evidence never is introduced and considered at the initial hearing before the Register.
Before concluding, the Committee wishes to extend both its gratitude and congratulations to all who have served on this Committee since 2007 and those who were specially consulted on this project or reviewed earlier permeations. The Committee is indebted to its present chairperson, John F. Meck, Esq., for steadily guiding this project to completion and to prior chairperson, the Honorable Calvin S. (''Pete'') Drayer, Jr., for his vision in beginning this project. The Committee also thanks its prior chairpersons, Mary Jane Barrett, Esq. and Margaret Gallagher Thompson, Esq., who were instrumental in faithfully maneuvering this project forward.
[Pa.B. Doc. No. 15-2208. Filed for public inspection December 18, 2015, 9:00 a.m.]
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