[28 Pa.B. 3024]
[Continued from previous Web Page]
DIVORCE RULES (The numbering of these rules does not coincide exactly with the Divorce Rules under the Pennsylvania Rules of Civil Procedure.)
Rule 1920(a). Uncontested Divorces.
A party may file a praecipe directing the Prothonotary to forward all papers to the Court for review and for entry of a final decree when all costs have been paid or excused and when all requirements of law and the Rules of Civil Procedure have been fulfilled. If any agreement is to be incorporated within the decree, the party shall state whether or not it is to be merged within the decree. If the defendant files the praecipe, he or she shall state by what authority he or she acts.
Rule 1920(b). Alimony.
Claims for alimony pendente lite raised in a divorce complaint or by a subsequent pleading in a divorce action shall be referred to the Domestic Relations Section for a conference upon the written motion of a party, or upon the request of a party at a conference for support. Unless otherwise directed by the Court, an award of alimony pendente lite shall be effective from the date of the motion, or of the request. The procedure for alimony pendente lite shall be in accordance with Pa.R.C.P. 1910.11.
Rule 1920(c). Motion to Appoint Master.
When a case is at issue and all discovery relating to issues to be submitted has been completed, a party may move for the appointment of a master. The motion shall, under Pa.R.C.P. 1920.74, in item (7) list the names of local attorneys who may be interested in the case, or contain a statement that no local attorneys are known to be interested.
Rule 1920(d). Master's List and Compensation.
The Court Administrator shall maintain a list of all attorneys primarily practicing in Adams County and who have not been excused from serving as masters in divorce or annulment. Any attorney may request the President Judge to excuse him or her from such service. Upon motion, the Court will appoint a master from the list to hear the issues set forth in the motion. The master shall be compensated at an hourly rate that will be periodically set by administrative order. Until changed, the hourly rate shall be $50.00 per hour. No motion shall be considered unless there has been deposited with the Prothonotary the sum of $500.00 for the purpose of guaranteeing payment of the master's fee as well as stenographer's. The master may request that additional deposits be made, if the case becomes protracted.
Rule 1920(e). Withdrawal of Issues.
Upon motion of any party, the Court may withdraw issues from the master, whether or not the master has acted upon those issues.
Rule 1920(f). Payment.
(1) Upon notice to the parties, the master may request an order directing the Prothonotary to disburse fees, and when a master's report has not been filed within sixty (60) days of the hearing date, the stenographer may request payment by filing the bill with the Prothonotary. If no exceptions to the sums are filed within ten (10) days, the Prothonotary shall disburse funds as requested.
(2) The master's report shall state the total amount of master's and stenographic fees being charged, and any amount that remains unpaid. If no exceptions or objections to the amounts are filed within the period for filing exceptions, the Prothonotary shall expeditiously pay the balance of fees requested in the report.
(3) If any party excepts or objects to fees, the Prothonotary shall not disburse any money or refund until the Court rules on the exceptions.
Rule 1920(g). Fees.
Under appropriate circumstances, the Court may:
(1) excuse a moving party from depositing all or part of fees, and/or
(2) direct the non moving party to pay the all or part of the fees, and/or
(3) direct that the County pay all or part of the fees
Rule 1920(h). Fees as Costs.
Master's fees and stenographer's fees shall be considered costs of the case. In the event the master or the Court assesses costs against a party to the action, the costs shall be paid in full or a sufficient amount to cover the costs and shall be deposited with the Prothonotary within thirty (30) days of the date of the court order. If the payment or the deposit is not made within the thirty (30) day period, in addition to other remedies, the Court may direct the master to liquidate sufficient marital property to pay all sums due and owing.
Rule 1920(i). Notice.
The master shall give at least ten (10) days written notice of the time and place for taking testimony to the attorneys of record, or to the parties, in the manner prescribed by Pa.R.C.P. 1920.51.
Rule 1920(j). Hearings and Amendments.
Subject to the directions of the Court, the master shall have the usual powers of the Court with regard to the detention of witnesses for examination and the general course of the proceedings before him/her. The master shall also have the authority and power to rule on objections to the admissibility of evidence and to permit amendments to the complaint in order to have the pleadings consistent with the testimony given. However, no amendment shall be permitted which changes the grounds of the divorce alleged. In cases where amendments to the complaint have been granted, the notice of the filing of the master's report shall contain a brief summary of the amendments allowed.
Rule 1920(k). Revocations.
The appointment of a master may be revoked by the Court sua sponte, or upon motion of either party for cause shown, or upon the motion of the master on the grounds that no hearing has been held within ninety (90) days after the date of his/her appointment.
Rule 1920(l). Exceptions.
Exceptions to the master's report, or any motions or reasons for a new trial in relation to the verdict of any jury, where applicable, which either party shall desire to make, shall be filed with the Prothonotary, and a copy thereof served at the same time upon the opposite party or his/her attorney of record. If no exceptions have been filed to the master's report within ten (10) days, and all costs have been paid, the Prothonotary shall submit such report and all the papers in the case, including his/her certificate stating that all costs have been paid to the Court for final decree.
Rule 1920(m). Delinquent Reports.
(a) If a master fails to file a report and recommendation within the period established by Pennsylvania Rules of Civil Procedure, the master shall report such failure to the Court, explain reasons for the failure and state when the report shall be filed.
(b) The Court may terminate a master's appointment, reduce or deny the master's compensation, or order such other relief as may be appropriate, where: a master has violated this rule, or has failed to comply with the time limits of the Pennsylvania Rules of Civil Procedure, without adequate explanation. Such relief may be ordered by the Court sua sponte, or upon application of any party.
Rule 1920(n). Counseling.
If either party requests counseling under § 202 of the Divorce Code, the party making such request shall deposit Fifteen Dollars ($15.00), with the Prothonotary at the time of filing the request to cover the cost of the counselor's report, unless the Court shall order otherwise.
The party requesting counseling shall provide the appointed counselor with a copy of the court Order directing such counseling.
Rule 1921. Procedure Relating to Masters' Hearings.
Subject to the Court's power to withdraw issues from the master, procedures shall be as prescribed by Pa.R.C.P. 1920.55-2.
Rules 1922-- 2204. Reserved.
WRONGFUL DEATH Rule 2205. Notice.
In addition to the form of notice authorized by Pa.R.C.P. 2205, a plaintiff in a wrongful death action may give notice to persons entitled to recover damages in the action by any means of service, other than ordinary mail, authorized by state rules.
Rules 2206--2951. Reserved.
Rule 2952. Confession of Judgment.
(a) A plaintiff seeking leave to confess judgment pursuant to Pa.R.C.P. 2952(9), shall apply for a court order in substantially the following form:
Caption And Now, this __ day of _____ , __ , plaintiff applies for leave of court to enter judgment by confession against defendant(s), pursuant to Pa.R.C.P. 2952(9) and alleges that the instrument upon which the judgment is to be entered is:
[ ] more than twenty years old,
[ ] not attached to the complaint, nor is a photostatic copy or like reproduction showing the defendant's signature so attached.
It is requested that the
[ ] schedule a hearing, which ______ expected to be
is or is not
two or more hours in length.[ ] determine the application on the basis of depositions and the pleading.
Respectfully submitted,
_________________
(b) When plaintiff alleges that neither the original, nor a photostatic copy, nor a like reproduction is attached to the complaint, there shall be attached to the application a verified explanation of the reasons.
(c) The Court may, after reviewing the application schedule a pre-hearing conference, a hearing, and/or order that the application be listed for argument.
(d) The court may, at any time, alter the proceedings established by the initial order.
Comment: Rules relating to distributions of sheriff's sale proceeds have been deleted.
RULES OF ORPHANS' COURT DIVISION
ADAMS COUNTY COURT OF COMMON PLEAS Rule 1. The local rules of the Orphans' Court Division of the Adams County Court of Common Pleas shall be known as Adams County Orphans' Court Rules and may be cited as either Adams C. O.C. R. (number), or Local O.C. Rule (number). These rules should be read in conformity with Supreme Court Orphans' Court Rules. Except as otherwise provided in these rules, or by Supreme Court Rules, local Rules of Civil Procedure shall apply to proceedings in the Orphans' Court Division of this Court.
Comment: These rules should be read in conformity with not only state, but also local, rules. For example, Local Civ. R. 213 governs procedure in cases involving extended hearings. In light of extensive rule changes in the area of appearances and withdrawals of counsel, no need exists for special rules applicable to the Orphans' Court Division.
BUSINESS OF THE COURT Rule 1.1. Judges.
The President Judge may periodically assign a judge or judges to the Orphans' Court Division. Until the President Judge determines otherwise, all judges of this Court shall act as judges of the Orphans' Court Division.
CONSTRUCTION AND APPLICATION OF RULES Rule 2.3. Definitions.
The following words when used in these rules, unless the context clearly indicates otherwise, shall have the meaning ascribed to them in this section.
(A) ''Auditor'' and ''master,'' are generally used interchangeably, without regard to technical distinctions, in these rules. The terms may be similarly used in orders, unless the scope of duties or context indicates otherwise. Notwithstanding technical differences between the two terms, an auditor shall have all the powers and duties of a master, and vice versa, unless the order of appointment or scope of duties make this inappropriate.
(B) ''Exception'' means a formal disagreement with an appraisal, with a report of an auditor or master, or with an adjudication, opinion, or decree of the Court. The term includes ''objection,'' and the two terms may be used interchangeably.
(C) ''Judge'' means a judge assigned by the President Judge to the Orphans' Court Division.
(D) ''Objection'' is included in the definition of ''exception.''
(E) ''Code'' means the ''Probate, Estates and Fiduciaries Code,'' 20 Pa.C.S.A. § l0l et seq.
(F) ''Master'' may be used interchangeably with ''auditor,'' subject to the discussion relating to the definition of ''auditor.''
Comment: The distinction between objection and exception is too esoteric to be of significance and is potentially confusing, since many people use the terms interchangeably. The prior rule's requirement that objections and exceptions be in writing conflicts with other rules allowing oral objections in certain instances. The terms, ''auditor'' and ''master'', are used interchangeably to avoid disputes about the authority or scope of duties of a person designated as one or the other.
PLEADING AND PRACTICE Rule 3.1.
Since there are no local rules specifically applying only to pleadings and practice in equity, Supreme Court Rule 3.1 shall govern pleadings and practice in the Orphans' Court Division, except as otherwise provided. Unless ordered by a judge, notices to defend in the form specified by Rules of Civil Procedure shall not be required.
Rule 3.4. Form of Petition.
(a) A proposed order or decree, bearing the caption of the case, shall be attached to the face of the petition.
(b) Copies of documents essential to proper relief shall be attached to the petition as exhibits.
Rule 3.6. Depositions etc.
Any party seeking a special order relating to depositions, discovery, production of documents and/or perpetuation of testimony shall give all interested parties, or their counsel, at least ten days advance notice before presenting the request. Otherwise, the party shall proceed in accordance with Rules of Civil Procedure.
Rule 4. Reserved.
Rule 5.1. Legal Periodical and Advertisement.
The Adams County Legal Journal shall be the legal periodical for the publication of legal notices in Adams County, whenever publication in a legal periodical is required by Act of Assembly or by Rule or Order of Court.
When advertisement is directed in these rules, unless otherwise provided, it shall be in accordance with publication requirements of Supreme Court Rule 5.1(c).
Comment: Attention is invited to the requirement in Supreme Court Rule 5.1(c) that publications occur once a week for three consecutive weeks, as contrasted with once under Pa.R.C.P. 430. Attention is also invited to the provisions of 20 Pa.C.S.A. § 745(b), which establish specific requirements for advertising accounts.
Rule 5.2(a). Method--When No Fiduciary.
Whenever notice is to be given to a person who is not sui juris for whom there is no guardian, trustee, or committee, notice shall be given by serving it upon him/her, if he/she is over fourteen (14) years of age, and, in all cases, upon the following persons:
(1) his/her next of kin; and/or
(2) his/her spouse; and/or
(3) the person with whom he/she resides or by whom he/she is maintained; and/or
(4) the superintendent or other official of the institution having custody of him/her; and/or
(5) in such manner as the Court, by Special Order, may direct.
Rule 5.2(b). Method--Presumed Decedents and Unascertained Persons.
Whenever notice is to be given to an absentee, a presumed decedent, or to an unknown or unascertained person, it shall be given in the manner provided by Act of Assembly or, in absence thereof, in such manner as the Court, by Special Order, shall direct.
Rule 5.4. Return of Notice--Requirements.
(A) Return of service shall in all cases show the date and manner of service and be attached to a copy of the notice served.
(B) Return of service by registered or certified mail shall also have attached the return receipt, or a photocopy thereof, or an adequate explanation of the failure to so attach.
(C) Registered or Certified Mail. Return of notice by registered or certified mail shall state the date and place of mailing and shall include the return receipt, or photocopy thereof. When the person who gives notice by registered or certified mail has personal knowledge, or has cause to believe, that such notice was not received by the person to be notified, he/she 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 ordered.
(D) Return of notice by publication shall consist of proofs of publication, together with affidavits of publication by the publisher or his/her agent.
Rule 5.5. Notice to Attorney General.
No notice shall be required to the Attorney General with respect to a pecuniary legacy to charity in the amount of $25,000.00 or less, which has been or will be paid in full.
Comment: It should be noted that Supreme Court Rule 5.5 excuses notice only in the case of a ''pecuniary legacy.'' No opinion is expressed as to whether this provision applies to a gift of property, e.g. stock.
ACCOUNTS AND DISTRIBUTION Rule 6.1. Form--Local Requirements.
(A) Accounts will be typed on 8 1/2'' by 11'' paper fastened together at the top and numbered consecutively at the bottom.
(B) All accounts shall begin with a caption which shall set forth the nature of the account, the name and capacity of the fiduciary, and the name of the estate.
(C) The first account of a personal representative shall contain, immediately following the caption, the date of death of the decedent and the dates when letters of the estate were advertised in each of the publications for that purpose. A copy of each of the proofs of publication shall be attached to the account.
(D) Principal of personal estate and principal of converted real estate shall be stated separately.
(E) Every account filed with the Register or Clerk shall be signed by each accountant, unless special leave of Court is obtained, and shall be verified by at least one accountant.
(F) If the account incorporates by reference the contents of the inventory, a true and correct copy of the inventory shall be attached for review by the Court; said true and correct copy of the inventory need not be filed of record in the Office of the Clerk of Courts.
Comment: Present Supreme Court Rule 6.1 gives an accountant an option as to which form is followed. Thus, this rule should be properly captioned ''local'' rather than ''additional'' requirements, as was previously done.
Rule 6.2.
No account presented by the Register or by the Clerk of the Orphans' Court shall be confirmed, nor any decree of distribution made, unless it be made to appear by the certificate of the accountant or his/her attorney, that written notice of the time of presentation of the account and proposed statement of distribution and the character thereof has been given for at least twenty-eight (28) days prior to the date fixed to every unpaid creditor who has given written notice of his/her claim to the accountant and to every other person of whom the accountant has notice or knowledge who claims an interest in the estate as beneficiary or next of kin. Acceptance of such notice may be in writing by the party in interest or by his/her attorney.
Rule 6.3.
All accounts shall be presented for confirmation at a regular confirmation date and must be filed not later than forty (40) days prior thereto. Although written objections are not required, if objections are made in open court at the time of presentment, the Court may require that the objector file a written objection within ten days. The Court may also require the objector to state, in writing, the specific grounds upon which objections are based. Failure to comply within ten (10) days, or such other time set by the Court, may be considered a withdrawal of any objection made only orally.
Rule 6.9.
Accounts and any accompanying statements of proposed distribution filed in the office of the Register of Wills shall be marked ''filed,'' a notation of the date of said filing made on the decedent's index of the estate, and then transmitted to the Clerk of the Orphans' Court on the next succeeding business day for audit and confirmation by the Court after proper advertising. The Register of Wills and Clerk shall be entitled to such fees as are authorized by law, and/or by administrative order of this Court, for accounts filed in that office. Until changed, a filing fee of $3.00, in addition to fees established by the legislature and/or Supreme Court, is imposed.
Rule 6.9(a).
The statement of proposed distribution shall be filed at the same time and in the same office with the account it accompanies.
Rule 6.9(b).
A statement of proposed distribution shall be on a paper separate from the account which it accompanies. It shall contain the names of the persons to whom it is proposed to award the balance for distribution, the amount or share awarded to each and a brief statement of the nature and reasons for the proposed awards, and a copy of the will, if any.
Rule 6.9(c).
All statements of proposed distribution shall be signed by each accountant unless special leave of Court is obtained, and all statements of fact therein shall be verified by at least one (1) accountant.
Rule 6.9(d).
A fiduciary who, upon the filing of an account which reveals a balance for distribution, is unable for any reason to file therewith a statement of proposed distribution in accordance with the requirements of the Pennsylvania Supreme Court Orphans' Court Rules, shall in lieu thereof, file with the account a statement of the reasons why distribution cannot be proposed which shall conclude with a request for the appointment of an auditor to make distribution.
Rule 6.9(e).
The Clerk shall give notice by advertisement of the time when statements of proposed distribution filed with him/her and with the Register will be presented to the Court for approval. The notice shall be given in conjunction with the notice of the account which it accompanies.
Rule 6.9(f).
If distribution is to be made to a minor for whom no guardian has been appointed, the accountant may request distribution in accordance with either subsection 5101 or 5103 of the Code. If distribution is requested in accordance with 5103, there shall be a statement that the distribution will not exceed the amount to which accounts are insured and the following wording:
''As to the interest of the minor(s) above named, it is proposed that his/her (their) share(s) be deposited in a separate savings account in the _____ Bank at _____ , Pennsylvania, with the following notation: (Name of Minor) and _____ his/her mother-father-person having custody--not to be withdrawn until the minor, ______ , becomes of age or in compliance with an Order of the Orphans' Court Division of the Adams County Court of Common Pleas during his/her minority.''
Rule 6.9(g).
Where real estate is distributed, the real estate in the statement of proposed distribution shall be described by metes and bounds when such description is available.
OBJECTIONS TO ACCOUNTS AND STATEMENTS OF PROPOSED DISTRIBUTION Rule 6.10(a).
Objections to accounts and/or to statements of proposed distribution shall be governed by Rules 6.3 and 7.1 et seq. A copy of objections shall be served on the accountant or his/her attorney.
Rule 6.10(b).
(1) Objections by the Register of Wills to deductions in an account or in the statement of proposed distribution shall be considered solely to determine the clear taxable value of the estate. Objections to the amount of such deduction will be disposed of by the Court after hearing and/or argument, but the account may be confirmed and distribution awarded subject to sufficient funds being withheld to pay inheritance tax.
(2) Any party in interest or the accountant may seek adjudication of a dispute concerning deductions disallowed by the Register prior to filing an account. Issues may be resolved after hearing, argument and/or upon case stated.
Rule 6.10(c).
Objections filed by anyone other than the Register of Wills may be determined after determination of facts and/or argument. Any party may request that a judge conduct a hearing to determine disputed facts, or that the matter be referred to an auditor. Notwithstanding a request for a hearing by the Court, an auditor may be appointed, in the discretion of the judge assigned the case.
Rule 6.11.
If no objections are filed to either the account or the statement of proposed distribution, the Court may, on the day fixed for the presentation thereof, make a final decree confirming the account absolutely and directing distribution in accordance with the statement.
EXCEPTIONS OR OBJECTIONS OTHER THAN THOSE MADE IN OPEN COURT Rule 7.1.
Exceptions or objections other than those made in open court, when the case is being considered by the court, shall be in writing and copies thereof shall be served on all interested parties or their attorneys.
Rule 7.2.
All exceptions shall be filed with the Clerk. The Clerk shall transmit exceptions to an auditor's decision for initial consideration and ruling.
Rule 7.3.
The grounds of each exception must be clearly set forth.
Rule 7.4.
Exceptions shall be heard by a judge who shall sustain or dismiss them in whole or in part or enter any appropriate order.
AUDITORS AND MASTERS Rule 8.1.
The Clerk shall provide a certificate of appointment to auditors and masters expeditiously after appointment. Auditors and masters shall schedule hearings without undue delay, and give notice thereof in accordance with Supreme Court Rule 5.1.
Rule 8.2.
Reports of auditors and masters shall be filed with the Clerk.
Rule 8.3. Reports.
In addition to requirements in Supreme Court Rules 8.3. and 8.4, reports shall contain an appendix which shall:
1. Recite the person's commission,
2. Contain notices given, with a description of how delivered or given,
3. Contain written waivers of notice,
4. Contain exceptions to the report and requests for findings submitted by counsel,
5. Contain exhibits, unless they accompany the report. Accounts and documents filed independently with the Court or belonging to its archives, and original documents reserved by the owner or custodian thereof, shall not be incorporated in the appendix. Copies, however, may be,
6. Recite the chronological summary of proceedings before the auditor,
7. Contain a bill of costs as taxed by the auditor, in the manner in which bills of costs are taxed in the Prothonotary's office.
Rule 8.4. Reserved.
Rule 8.5(a).
Auditors and masters shall call for appearances at the beginning of each hearing. Persons failing to enter a formal appearance shall not be entitled to notice of any further proceedings, or the completion and filing of the report, unless such rights are specially granted by the auditor.
Rule 8.5(b). Procedure.
Procedure followed shall be in accordance with good order, but may be less formal than court proceedings. Auditors shall initially determine what claims have been presented for resolution. In addition to claims to which specific objection has previously been made, interested parties or counsel may orally object to claims to which prior general objection has been made. Claims to which no objection has been made shall be allowed without further proof. Any claimant surprised by objection may request and be given an opportunity to support the claim.
Rule 8.5(c). Conduct of Hearings.
Hearings, continuances and adjournments, shall generally be in accordance with practice and procedures governing proceedings by masters in divorce cases. After the closing of the evidence has been announced and noted, any party may submit requests for findings of fact and conclusions of law within time limits set by the auditor or master.
Rule 8.6.
Upon the completion of the report, the auditor shall lodge it in the Clerk's office for inspection purposes only. The report shall not be filed by the Clerk, but shall be made available for inspection. Auditors shall give notice in writing to all parties or attorneys entitled to notice that:
(a) the report is available for examination in the Clerk's office, and
(b) exceptions thereto must be filed with the Clerk within ten (10) days.
If exceptions are filed, the Clerk shall return the report and exceptions to the auditor or master. If no exceptions are filed, the Clerk shall mark the report as filed, and transmit it to the Court for entry of an order.
Service of notice shall be sufficient if mailed first class mail, addressed to the person entitled to receive it.
Rule 8.7(a).
Other than in unusual circumstances and by leave of court, no exceptions shall be permitted after the ten-day period established by Rule 8.6.
Rule 8.7(b).
Rule 8.7(c).
The auditor or master shall expeditiously rule upon and dispose of exceptions. Rulings, modifications and amendments shall then be filed, and the Clerk will mark the report, with rulings, modifications and amendments as filed. The Clerk shall then transmit the report, rulings, amendments and modifications to the Court for entry of a decree nisi. The auditor or master shall provide notice of filing to interested parties or counsel, and advise them that objections or exceptions to the decree nisi, or request for resubmission to the auditor or master, must be made within ten (10) days.
Rule 8.7(d).
The decree nisi shall be confirmed absolute, unless prior exceptions are renewed, new exceptions are filed, or a request is made for resubmission to the auditor or master, within ten (10) days. Any party may at any time after the ten-day period list exceptions or requests for argument.
Rule 9. Reserved.
APPEALS FROM THE REGISTER OF WILLS Rule 10.1. Petition and Rule.
Appeals from judicial acts or proceedings of the Register of Wills, and the practice and procedure with respect thereto shall be governed by Local Civ. Rule 206. However, the order directing that a rule issue shall also direct the Register to certify the record to the Court. The petition shall include the following information:
(a) the nature of the proceedings before the Register;
(b) the basis for the certification, requested certification or appeal; and
(c) the names of all parties in interest, including those not a party to the record.
Comment: Uniformity is served by making appeals subject to the procedure utilized with petitions and rules. Since the new rule applies to all appeals, no need exists for references to special appeals, such as from imposition of inheritance tax. State Rule 11.1 and 11.2, regarding jury trials, do not require supplementing.
SPECIAL PETITIONS
FAMILY EXEMPTIONS Rule 12.1(a). Contents of Petition.
A petition for the family exemption also shall set forth in separate paragraphs and in substantially the following order:
(1) the name, residence and date of death of decedent;
(2) 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 at the date of his/her death;
(3) if petitioner is the surviving spouse, the date and place of the marriage; and, if a common law marriage is asserted, all averments of facts necessary to establish the validity of the marriage;
(4) whether the decedent died testate or intestate; whether, where, when, and to whom letters were granted; if decedent died intestate, the names, relationship, and addresses of those interested as next of kin;
(5) the location, description, and valuation of property claimed; and
(6) that ten (10) days prior notice of the filing of the petition has been given to the personal representative, or when no letters have been granted, to the parties adversely affected, with a copy of such notice attached as an exhibit.
Rule 12.1(b).
No appraisal shall be required when the exemption is claimed from cash, bank savings and loan deposits, listed securities and well-known local securities. When the exemption is claimed from other items of personalty, the petitioner shall attach a sworn appraisal of one qualified, disinterested person. The Court may accept the appraisal of the attorney filing the petition for frequently traded items having an established price such as automobiles.
Rule 12.1(c).
If the petition requests the exemption from real estate, the practice and procedure shall be as provided in Rule 12.2(b) unless all parties in interest agree in writing to a valuation at which it is to be awarded.
Rule 12.1(d).
Where the exemption is claimed in personalty, no notice or advertisement of the appraisal shall be required unless directed by the Court on special order.
Rule 12.1(e).
(1) Voluntary Distribution. When the personal representative, at his/her own risk, delivers assets of the estate in satisfaction or on account of exemption, he/she shall set forth the same as a credit in the account. The same may be the subject of objection by any claimant or party in interest.
(2) When Petition Filed. When the procedure is by petition, questions as to the appraisement or allowance, or both, may be raised only by objection made in open court at the time fixed for presentation of the petition.
(3) Higher Bid. Objections which relate only to the amount of the appraisement will be dismissed unless a definite and bona fide higher bid for the property is made, or facts appear warranting consideration by the Court.
ALLOWANCE TO SURVIVING SPOUSE OF INTESTATE Rule 12.2(a). Contents of Petition.
A petition for the allowance to the surviving spouse of an intestate shall also set forth in separate paragraphs:
(1) the information required in a petition for family exemption under Rule 12.1(a), as far as appropriate; and
(2) the death of decedent, intestate, without issue or adopted children; the names, addresses, and the relationship of those interested as next of kin; and
(3) that ten (10) days prior written notice of the intended presentation of the petition has been given to the personal representative or, if no personal representative has been appointed, to those interested as next of kin; and, if there be no next of kin, to the Attorney General, with a copy of such notice attached as an exhibit; and
(4) shall have attached thereto a copy of the inventory and appraisement.
Rule 12.2(b). Appraisal--Notice--Confirmation.
(1) Filing of Appraisal. Appraisers appointed pursuant to Supreme Court Rule 12.2(3) shall, within thirty (30) days after their appointment, file with the Clerk an appraisal of the property claimed.
(2) Notice of Appraisal. Upon filing of the appraisal, the Clerk shall give notice thereof to the personal representative, and to the next of kin; and, if there is neither personal representative nor next of kin, to the Attorney General. Notice to the Attorney General shall contain a copy of the petition and the appraisal. All notices shall state that:
(a) Confirmation of the appraisal and an award of the property to the surviving spouse will be considered by the Court at a stated open court date that is at least ten (10) days later than the date notice is given.
(b) The person to whom notice is given shall have the right to appear at the stated time and object.
(c) If no objections are made, the property shall be awarded to the surviving spouse at the appraised value.
If the address or whereabouts of any of the next of kin is unknown, notice of the filing of such appraisement shall be given in accordance with Supreme Court Rule 5.1.
Comment: No authority exists for reducing advertisement below that required in state rule 5.1, other than by special order of court.
SURVIVING SPOUSE'S ELECTION Rule 12.3. Extension of Time For Filing of Surviving Spouse's Election.
The petitioner shall file the petition with the Clerk and thereafter give ten (10) days written notice of intention to request the extension in open Court to all persons adversely affected thereby who do not join in the prayer of the petition.
If no objection is made, the Court may enter an appropriate decree upon the filing of a verified return of notice.
APPOINTMENT AND DISCHARGE OF FIDUCIARIES Rule 12.4.
In every case where a guardian ad litem or trustee ad litem is appointed, the estate shall be liable for the compensation of the guardian ad litem or trustee ad litem in an amount to be set by the Court upon receipt by the Court of a written report of said guardian ad litem or trustee ad litem prior to the final hearing in the particular case.
APPOINTMENT OF A GUARDIAN FOR THE ESTATE OR PERSON OF A MINOR Rule 12.5(a). Minor Over the Age of Fourteen.
If the minor is over the age of fourteen (14) years, he/she shall appear in person at the presentation of the petition for the appointment of a guardian unless the petition contains his/her written joinder in the request for the designation of the given guardian.
Rule 12.5(b). Consent of Guardian.
The petition shall have attached thereto the consent of the guardian to act as such.
(1) The consent of an individual guardian shall also contain the following statements:
a. his/her business and domicile;
b. that he/she is a citizen of the United States, able to speak, read, and write the English language;
c. that he/she is not the fiduciary or an officer or employee of the corporate fiduciary of an estate in which the minor has an interest nor the surety of such a fiduciary; that he/she has no interest adverse to the minor; and,
d. if the minor and proposed guardian reside in the same household, that it is not the intention of the guardian to apply for an allowance for the support or education of the minor during minority.
(2) When the proposed guardian is a corporate fiduciary, its written consent to act as such shall contain a statement that it is not the fiduciary of an estate in which the minor has an interest nor the surety of such a fiduciary; and, that it has no interest adverse to the minor.
Rule 12.5(c). Small Estates to Minors.
(1) Any petition to have the estate of a minor awarded without the appointment of a guardian or the entry of security shall contain, inter alia, the following:
a. a statement that the net value of the entire real and personal estate of the minor does not exceed the statutory limitations; and,
b. the name of bank or insured savings and loan association in Adams County as a suggested depository.
(2) The Court may require that said fund be deposited in an interest bearing deposit in said bank or be invested in said insured savings and loan association in the name of the minor and in the name of the natural guardian of the minor, subject to the express restriction, to be noted on the records of the depository, that no withdrawals shall be made therefrom during minority without Order of Court, with a further requirement that evidence of the deposit or investment marked to indicate the restriction, be promptly exhibited to the Court.
(3) When the Court authorizes the parent or other person maintaining the minor to execute a receipt, deed, mortgage, or other instrument affecting property, real or personal, of the minor it shall be conditioned on the deposit of the proceeds in an account restricted as in (2) above.
Rule 12.5(d). Allowances From Minor's Estate.
When a petition is necessary for an allowance from a minor's estate, the petition shall set forth:
(1) the manner of the guardian's appointment and qualification and the dates thereof;
(2) the age and residence of the minor, whether his/her parents are living, the name of the person with whom he/she resides, the name and age of his/her spouse and children, if any;
(3) the value of the minor's estate, real and personal, and the net annual income;
(4) the circumstances of the minor, whether employed or attending school; if the minor's parent(s), or other person(s) charged with the duty of supporting him/her is/are living, the financial condition and income of such person and why he/she is/are not discharging his/her duty to support the minor; and, whether there is adequate provision for the support and education of the minor;
(5) the date and amount of any previous allowance by the Court; and,
(6) the financial requirements of the minor and his/her family unit, in detail, and the circumstances making such allowance necessary.
APPOINTMENT OF A TRUSTEE Rule 12.6. Exhibit.
The following exhibits shall be attached to the petition:
1. a copy of the trust instrument; and,
2. a written consent of the proposed trustee to act as such.
DISCHARGE OF A FIDUCIARY AND SURETY Rule 12.7(a). Discharge of a Fiduciary--Additional Provisions.
(1) The petition shall contain the averment that all parties interested in the estate as distributees have signed releases or aver a satisfactory explanation of the failure to procure releases. If such releases are not obtained, notice of intended presentation of petition for discharge shall be advertised once in a newspaper of general circulation published in Adams County and in the Adams County Legal Journal at least ten (10) days prior to the time specified in the notice for asking the order of final discharge.
(2) In the case of minor's estate not exceeding $10,000.00 where the account accompanies the petition, the petition shall aver that there are no unpaid creditors and the former minor has consented to the petition, or aver a satisfactory explanation of the failure of the minor to consent.
Rule 12.7(b).
A petition for discharge of a personal representative and/or his/her surety under § 3531 of the Code shall conform as far as practicable to the requirements of a petition under Rule 12.15 (Small Estate).
Rule 12.8. Reserved.
REAL PROPERTY--SALE Rule 12.9(a). Public Sale--Contents of Petition--Additional Requirements.
(1) Personal Representative.
A petition by a personal representative to sell real property at public sale under § 3353 of the Code shall also set forth in separate paragraphs;
a. the name, residence, and date of death of the decedent; whether he/she died testate or intestate; and, the date of the grant of letters;
b. that the personal representative is not otherwise authorized to sell by the Act; or, is not authorized or is denied the power to do so by the will; or, that it is desirable that the sale have the effect of a judicial sale, stating the reasons;
c. whether an inventory and appraisement have been filed; the total value of the property shown therein; and, the value at which the real property to be sold was included therein;
d. if the personal representative entered bond with the Register, the name of the surety and the amount of such bond;
e. the names and relationships of all parties in interest; a brief description of their respective interest; whether any of them are minors, incompetents or deceased, and, if so, the names and the record of the appointment of their fiduciaries;
f. a full description of the real property to be sold, the improvements thereon, by whom it is occupied, its rental value and current tax assessment; and,
g. sufficient facts to enable the Court to determine that the sale is desirable for the proper administration and distribution of the estate.
(2) Payment of Debts.
A petition by a personal representative to sell real property at public sale for payment of debts, under § 3353 of the Code, shall also set forth in separate paragraphs;
a. the information required to be set forth under sub-paragraph 1, as far as appropriate;
b. a statement that the personal estate and the rents of real property are insufficient for payment of debts;
c. a statement of all real property owned by decedent, wherever situated, which has come to petitioner's knowledge;
d. a full description of the real property to be sold, the improvements thereon, by whom it is occupied, its rental value and current tax assessment;
e. that the trustee is not otherwise authorized to sell by the Act, or is denied the power by the trust instrument; or, that it is advisable that the sale have the effect of a judicial sale, stating the reasons; and,
f. sufficient facts to enable the Court to determine that the proposed sale is for the best interests of the trust.
(3) Guardian.
A petition by a guardian to sell real property at public sale, under § 3353 of the Code, shall also set forth in separate paragraphs:
a. the age of minor;
b. the names of his/her next of kin and the notice given them of the presentation of the petition;
c. how title was acquired, stating the date and place of probate of the will or recording of the deed;
d. a recital of the provisions of the will or deed relating to the real property to be sold;
e. that the guardian is not otherwise authorized to sell by the Act, or is denied the power by the trust instrument; or, that it is advisable that the sale have the effect of a judicial sale, stating the reasons;
f. a full description of the real property to be sold, the improvements thereon, by whom it is occupied, its rental value, and current tax assessment; and,
g. sufficient facts to enable the Court to determine that the proposed sale will be for the best interests of the minor.
Rule 12.9(b). Method--Public Sale of Real Property Pursuant to Court Order.
(1) Notice of the public sale of real property shall be given:
(a) by advertisement in approved form;
(b) by handbills, one of which shall be posted at a conspicuous place on the real property to be sold and at least three (3) of which shall be posted in three (3) public places in the vicinity of such real property; and
(c) by personal notice or registered or certified mail to all known parties in interest, of the time and place of the proposed sale, at least ten (10) days prior thereto.
(2) Personal Representative. Trustee. Guardian.
A copy of the will, deed, or decree by which the fiduciary was appointed shall be attached to a petition by a personal representative, trustee, or guardian, to sell real property at public sale.
(3) Payment of Debts.
If the sale is for payment of debts, a copy of the inventory and appraisement of decedent's personal estate filed with the Register shall also be attached to the petition.
Rule 12.9(c). Public Sale--Notice--Confirmation.
(1) Notice. After the allowance of a petition for public sale, notice in approved form shall be given in the manner provided by Rule 12.9(b) above.
(2) Return of Public Sale. Return of public sale of real property for the purpose of approval or confirmation by the Court shall be in the form of an affidavit, which shall set forth:
a. the notice given as provided by Rule 12.9(b) above;
b. the price obtained; and,
c. the name and address of the purchaser and an averment that he/she was the highest bidder.
(3) Confirmation. If no objection is filed, the Court may enter a decree confirming the sale upon submission of the return of sale.
Rule 12.9(d). Public Sale--Security.
On the return day of the sale, the Court, in the decree approving or confirming the sale, will fix the amount of security or additional security which the personal representative, trustee, or guardian shall be required to enter, or will excuse the fiduciary from entering additional security.
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