[29 Pa.B. 2964]
[Continued from previous Web Page] Rule 1.2.P. Petitions for Declaratory Judgment. [Rule *136]
(1) Commencement of Action. Every action for declaratory judgment shall be commenced by petition and citation.
(2) Contents of Petition. The petition shall contain sufficient averments to entitle petitioner to the declaratory relief requested under the Pennsylvania Declaratory Judgments Act including:
(a) a concise statement of the facts relied upon to justify a declaratory judgment proceeding;
(b) the questions(s) of law with respect to which declaratory relief is requested;
(c) a list of all persons whose interest may be affected by the resolution of the questions(s); and
(d) a prayer for the relief desired.
(3) Exhibits. The following exhibits shall be attached to the petition:
(a) a copy of the will or trust or other governing instrument; and
(b) a copy of any other document to be construed.
(4) Final Decree. A form of final decree setting forth the declaratory relief shall be attached to the face of the petition.
Probate Section Comment: The use of Declaratory Judgments Act (Chapter 75, subchapter C of Title 42 Pa.C.S.) in appropriate cases has been viewed favorably by the Philadelphia Orphans' Court Division: Pew Memorial Trust II, 5 D.&C. 3d 698 (1977), and Annenberg Trust, 28 Fiduc. Rep. 75 (1977). This Rule is intended to provide the procedural framework for commencing a proceeding for declaratory relief in appropriate circumstances.
CONSTRUCTION AND APPLICATION OF RULES Rule 2.3.A. Definitions. [Rule *23.1]
The following words when used in these Rules, unless the context clearly indicates otherwise, shall have the meanings ascribed to them in this section:
(1) ''Court of Common Pleas'' means Court of Common Pleas of Philadelphia County;
(2) ''Court'' means the Orphans' Court Division of the Court of Common Pleas of Philadelphia County;
(3) ''President Judge'' means the President Judge of the Court of Common Pleas of Philadelphia County;
(4) ''Administrative Judge'' means the Administrative Judge of the Orphans' Court Division of the Court of Common Pleas of Philadelphia County;
(5) ''Clerk'' means the Clerk of the Orphans' Court Division;
(6) ''Register'' means the Register of Wills of Philadelphia County;
(7) ''Fiduciary'' includes a personal representative, a guardian of the estate of a minor, a guardian of the estate of an incapacitated person, and a trustee;
(8) ''Exception'' means a formal written disagreement with an adjudication, opinion, order or decree of a judge;
(9) ''Objection'' means an oral or written disagreement with any matter other than that which is covered by an exception; and
(10) ''Verify'' means attested to either by:
(a) an affidavit sworn to or affirmed before a Notary Public or other officer authorized to administer oaths; or
(b) a verified statement which shall set forth that it is subject to the penalties of 18 Pa.C.S. § 4904 (relating to unsworn falsification to authorities).
PLEADING AND PRACTICE Rule 3.2.A. Pleadings. [Rule *32.1]
The pleadings in the Orphans' Court shall be limited to a petition, an answer, new matter, reply, preliminary objections, and an answer to preliminary objections.
(1) New Matter. Any defense which is not a denial of the averments of fact in the petition shall be set forth under the heading ''New Matter.''
(2) Reply. A reply shall be required when new matter is set forth in the answer.
(3) Preliminary Objections.
(a) Preliminary objections shall be limited to questions of (i) law, (ii) form, or (iii) jurisdiction, may be filed by any party, and shall be accompanied by one original brief prepared in conformity with Rule 1.2.B.(4)(a)(i)-(ii), (v)--(viii), (4)(c) and (4)(d).
(b) An answer to preliminary objections shall be accompanied by one original brief, prepared in conformity with Rule 1.2.B.(4)(b), (4)(c), and (4)(d), and shall be filed within twenty (20) days after service of the preliminary objections and accompanying brief.
Rule 3.2.B. Disposition of Pleadings. [Rule *32.2]
(1) Failure to Answer a Petition. If the respondent fails to file an answer to a petition, the Court may enter a decree granting the prayer of the petition.1
(2) Failure to Reply. If the petitioner fails to file a reply to an answer which contains new matter, the averments of fact set forth under new matter shall be deemed admitted and the case will be ripe for disposition.
(3) Disposition of Preliminary Objections.
(a) The Assigned Judge shall rule on the preliminary objections. If no judge has been assigned, the Administrative Judge, at the request of any party in interest, shall assign a judge, on a rotation basis, to rule on the preliminary objections.
(b) Preliminary Objections raising questions of fact. Averments of fact raised in preliminary objections shall be deemed admitted if no answer is filed. If an answer is filed which denies averments of fact raised in preliminary objections, the Assigned Judge may schedule an evidentiary hearing.
(c) Preliminary Objections which may be disposed of as a matter of law. If no issues of fact are raised by the preliminary objections and answer, the Assigned Judge shall dispose of the preliminary objections as a matter of law, and shall deem all averments of fact in the pleading to which the preliminary objections have been filed to be admitted for the purpose of ruling on the preliminary objections.
(d) Oral argument on preliminary objections may be scheduled at the discretion of the Assigned Judge.
(4) Joinder of Issue. No formal joinder of issue is required.
(a) Issues of Fact. Issues of fact will not be heard on the argument list. Except as otherwise provided by Rules 7.1.A. and 10.2.C., when an issue of fact is raised by the pleadings, the Administrative Judge, upon the written request of any party, may refer the matter to a master, to the Auditing Judge if an account is to be filed, or to a Hearing Judge.
(b) Issues of Law. Pleadings that are closed shall be disposed of in conformity with Rule 3.2.B.(3)(a), (c) and (d), dealing with disposition of preliminary objections.
Rule 3.4.A. Form. Additional Requirements. [Rule *34.1]
(1) Typing. Endorsement. Every pleading shall be typewritten, double-spaced, or printed, and shall be endorsed with the name of counsel appearing in court.
(2) Signature and Certification. All pleadings shall be signed and verified by the parties. If this is impracticable, they may be signed and verified by someone familiar with the facts, in which case the reason for the failure of the parties to do so shall be set forth.
(3) Decree. Every decree shall bear the caption of the case and shall be attached to the face of the petition.
(4) Consents. The affidavit to the petition shall recite that all necessary consents are attached or shall set forth the names of the persons who do not consent. The Court may direct that notice be given or that a citation be issued, directed to persons who do not consent to show cause why the prayer of the petition shall not be granted.
Rule 3.5.A. Service of Copies of Pleadings. Exceptions. Objections. [Rule *35.1]
(1) Pleadings. In General. A copy of every pleading filed in a case shall be promptly served upon counsel of record for all parties in interest.
(2) Exceptions. Objections. Copies of exceptions or written objections shall be delivered to the Auditing or Hearing Judge and served upon the accountant or counsel to the accountant, and upon all parties adversely affected thereby, or their counsel of record.
Rule 3.5.B. Citation Procedure. [Rule *35.2]
(1) When, pursuant to the procedure of Rule 1.2.A.(1), a decree awarding a citation has been signed, the Clerk shall prepare the citation and the appropriate number of duplicate copies, returnable on the date fixed in the decree, or if no return date is so fixed, as counsel directs. Counsel shall obtain the citation and copies from the Clerk and shall arrange for service of the copies of the citation and of the petition. Proof of service shall be by return of the sheriff, or by affidavit or the person mailing, publishing, or personally serving the citation, or by written acceptance of service by or on behalf of the person to whom the citation is directed.
(2) Except as pertaining to citations issued pursuant to (a) Chapter 55 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5511) regarding alleged incapacitated persons and any rules pertaining thereto, and (b) Rule 12.3.B. pertaining to a petition by a surviving spouse to restrain the payment or transfer of property, the original citation with proof of service annexed or endorsed on a form printed on the reverse side shall be filed with the Clerk.
(3) When a person to whom the citation is directed has not filed an answer or preliminary objection, a motion for a default order may be presented to the Court without further notice.
(4) When a party to whom a citation has been awarded fails or is unable to serve the citation and petition within the time provided by law, an alias citation may be requested from the Judge who issued the decree awarding said citation. The alias citation and petition are to be served in the same manner as the original citation. If the party to whom an alias citation has been awarded fails or is unable to serve the alias citation within the time provided by law, a pluries citation may be requested from the Judge who issued the decree awarding said alias citation. The pluries citation and petition are to be served in the same manner as the original citation.
Probate Section Comment: In selecting the return date when none has been fixed by the Court, counsel should take into consideration the time required to prepare the citation, the time necessary to effect service, the requirements of Section 765 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 765), and Sup. Ct. O.C. Rule 32. Counsel should be mindful of the method of service required in each case.
Rule 3.6.A. Philadelphia Orphans' Court Division Practice. [Rule *36.1]
(1) Except upon agreement of counsel, leave to take depositions, or obtain discovery or the production of documents, may be granted only on petition upon cause shown.
(2) Where leave has been granted by the Court, the procedure relating to depositions, discovery, and the production of documents shall be governed by the order of the Court.
Rule 3.6.B. Pre-Trial Conference. [Rule *36.2]
(1) In any action the Court, on its own motion or on motion of any party, may direct counsel for the parties to appear for a conference to consider:
(a) the identification of the issues;
(b) the necessity or desirability of amendments to the pleadings;
(c) the possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof; and
(d) such other matters as may aid in the disposition of the action.
(2) The Court may make an order reciting the action taken at the conference, identifying the issues for trial, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered.
Rule 3.6.C. Perpetuation of Testimony and Court Records. [Rule *37]
To the extent not provided for by special order in a particular case, the practice and procedure relating to perpetuation of testimony and Court records shall conform to the practice and procedure in the Trial Division of the Court of Common Pleas of Philadelphia County.
NOTICE Rule 5.1.A. Method. Legal Periodical. [Rule *51.1]
The Legal Intelligencer shall be the legal periodical for the publication of legal notices in Philadelphia County, whenever publication in a legal periodical is required by Act of Assembly, or by Rule or order of Court.
Rule 5.1.B. Method. Public Sale of Real Property. [Rule *51.2]
Notice of the public sale of real property shall be given:
(1) by advertisement once a week for three successive weeks in a newspaper of general circulation in each county wherein any portion of the real estate is located and in the legal publication, if any, designated by Rule of Court of that county for publication of notices, the first publication to be made not less than twenty-one (21) days before the date of sale;
(2) by posting a notice at a conspicuous place on the premises; and
(3) at least twenty (20) days prior to sale, by notice to each party in interest by service on the attorney appearing of record for such party, or if there is no such attorney, by personal service or, if the party's residence is known, by delivery at such residence or by mail.
The advertisement and notices shall specify the time and place of the proposed sale and shall clearly identify the property by the street address or other adequate description.
Rule 5.2.A. Method. When No Fiduciary. [Rule *52.1]
Whenever notice is to be given to a person who is not sui juris, for whom there is no guardian, trustee, attorney-in-fact or other fiduciary, notice shall be given by service upon such person, if he or she is over fourteen (14) years of age, and, in all such cases, upon
(1) such person's next of kin;
(2) such person's spouse;
(3) the person with whom such person resides or by whom he or she is maintained;
(4) the superintendent or other official of the institution having custody of such person; or
(5) in such manner as the Court by special order may direct.
Rule 5.2.B. Method. Presumed Decedents and Unascertained Persons. [Rule *52.2]
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 the absence thereof, in such manner as the Court by special order shall direct.
Rule 5.4.A. Return of Notice. Additional Requirements. [Rule * 54.1]
(1) In General.
(a) Copy of Notice to be Attached. A copy of the notice required to be given shall be attached to the petition or return and shall set forth the date notice was given.
(b) Personal Service. Return of personal service of notice shall set forth the date, time, place and manner of service, and that a true and correct copy of the notice was handed to the person served.
(c) Registered or Certified Mail. Return of notice by registered or certified mail shall set forth the date and place of mailing and shall include the return receipt, or a photostatic copy thereof. When the person who gives notice by registered or certified mail has personal knowledge or cause to believe that such notice was not received by the person to be notified, it shall be so stated in the return. When a person resides in a foreign country, a statement that the notice was so mailed to that person at the designated address shall be sufficient unless otherwise ordered.
(d) Publication. Return of notice by publication shall consist of proofs of publication, together with affidavits of publication by the publisher or its agent.
(2) Real Property. 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 paragraph (1);
(b) the price obtained; and
(c) the name and address of the purchaser and an averment that the purchaser was the highest bidder.
ACCOUNTS AND DISTRIBUTION Rule 6.1.A. Form of Accounts. [Rule *61.1]
(1) Accounts shall be stated in conformity with the Uniform Fiduciary Accounting Principles and accompanying commentaries, illustrations and forms of account recommended by the Committee on National Fiduciary Accounting Standards in collaboration with the National Center for State Courts or in such other form of account as may be approved by the Supreme Court of the Commonwealth.
(2) Every account filed with the Register or Clerk shall be signed by each accountant and shall be verified by at least one accountant. The verification to a personal representative's account shall contain a statement that the Grant of Letters and the first complete advertisement thereof occurred more than four months before the filing of the account.
Rule 6.3.A. Time and Contents of Notice. [Rule *63.1]
Notice shall be given at least fifteen (15) days prior to the audit and shall set forth:
(1) the date and place of the audit, the time and the courtroom to be furnished upon request unless given in the notice;
(2) that (except as to non-residuary legatees or claimants whose legacies or claims have been or will be satisfied in full) a copy of the account and a copy of the will or trust instrument accompany the notice, or have been furnished previously, or will be sent upon request, as the case may be, and that any person who objects to the transactions shown in the account must appear in person or by counsel at the audit under penalty that the Court may otherwise assume that there is no objection and may approve the account as stated;
(3) the accountant's understanding of the nature of the claim, interest or objection of the party notified; whether the claim, interest or objection is admitted or contested; if admitted, whether it will be paid in full or in part, and, if contested, that an appearance in person or by counsel must be made at the audit to press any such claim, interest or objection;
(4) the amount of any receipt, disbursement, claim for counsel fee and/or fiduciary's commission, which does not appear in the account and which is to be reflected in the adjudication; and
(5) the accountant's interpretation of any dispute, or fairly disputable question, known to or reasonably ascertainable by the accountant, together with a copy of the instrument or material parts thereof containing any provision which forms the basis of the dispute, and a statement that if the person notified does not agree with the accountant's interpretation, he or she must appear at the audit in person or by counsel to present his or her contention, under penalty for failure to appear that the Court will assume that he or she agrees with the accountant's interpretation.
Probate Section Comment: Confirmation of the account of a terminated trust, guardianship or agency by annexation is authorized under Section 3501.2 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3501.2). Confirmation of the account of a distributed estate or trust is similarly authorized under Section 7188 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 7188). Notice of such annexation (or piggybacking) of an account is required for confirmation.
Rule 6.3.B. Supplemental Notice. [Rule *63.2]
In any case in which an audit has been continued, notice of the rescheduled audit date must be given to parties in interest by the accountant or by such other person as the Court may direct.
Rule 6.4.A. Filing for a Particular Audit. [Rule *64.1]
Subject to the provision of Sup.Ct. O.C. Rule 6.4, an account to appear on a particular audit list must be filed not later than 3 p.m. on the fifth Wednesday preceding the day on which such list will be called.
Rule 6.4.B. When Audit Lists Called. Postponed or Adjourned. [Rule *64.2]
Generally, the audit lists shall be called during the week beginning with the second Monday of September and the weeks beginning with the first Monday of other months. The call of an audit list may be postponed or adjourned at the discretion of the Auditing Judge or the Court. When the first Monday of the month falls on a holiday on which the Courts are closed, the audit list shall be called on the next business day.
Rule 6.6.A. Advertisement of Accounts. Posting. [Rule *66.1]
The Clerk shall give notice of all accounts and of the time and place of the call of the audit list by:
(1) advertising once a week for two (2) successive weeks in The Legal Intelligencer and in one Philadelphia daily newspaper of general circulation; and
(2) posting copies of the audit lists in the office of the Clerk and on the day of the audit in or about the several courtrooms.
Rule 6.6.B. Division of Accounts. [Rule *66.2]
Accounts duly advertised for audit on a particular day shall be divided by the Clerk, under the supervision of the Court, into substantially equal audit lists, each of which shall be assigned by lot to a judge of the Court.
Rule 6.9.A. Filing of the Petition for Adjudication and Statement of Proposed Distribution. [Rule *69.1]
The petition for adjudication and statement of proposed distribution shall be filed with the Clerk at the time the account is filed. No account shall be accepted for filing and advertisement unless accompanied by the petition for adjudication and statement of proposed distribution.
Probate Section Comment: Those filing accounts are advised to see Rule 6.9.D. for other papers that may be required to be filed at the time that the account is filed.
Rule 6.9.B. Forms. Execution. Verification. [Rule *69.1.1]
Except by leave of the Auditing Judge, forms of the petition for adjudication and statement of proposed distribution authorized by the Court shall be used. The petition for adjudication and statement of proposed distribution shall be signed by each accountant and verified by at least one of them.
Rule 6.9.C. Additional Receipts and Disbursements. [Rule *69.1.2]
Receipts and disbursements subsequent to the date to which the account was stated and to be included in the adjudication shall be set forth in the petition for adjudication and statement of proposed distribution and in the audit notice.
Probate Section Comment: The Court prefers that claims for counsel fees and fiduciary commissions appear as disbursements in the account. Rule 6.3.A.(4) states that claims for counsel fees and fiduciary commissions which are not included in the account must be included in the audit notice. Such claims should not be set forth on the attorney's appearance slip unless the requirements of Rule 6.3.A. concerning notice have been satisfied. Generally, appearance slips should be used to inform the Court of minor errors or discrepancies in the account, or additional filing fees and other nominal expenses incurred by the accountant since the closing date of the account that are to be included in the adjudication.
Rule 6.9.D. Papers to Be Filed with Accounts. [Rule *69.1.3]
(1) All Accounts. At the time of filing of an account, counsel shall file:
(a) a petition for adjudication and statement of proposed distribution;
(b) copies of all agreements with respect to settlements and compromises;
(c) copies of agreements, if any, with respect to the accountant's compensation, if credit therefor is taken in the account or requested at the audit;
(d) a waiver of an income accounting by those entitled to the income, if the account does not contain a complete income accounting and such a waiver is not attached to the account;
(e) the official receipt for any inheritance tax paid during the period of the accounting; and
(f) a statement of the method and date of giving notice to all parties in interest of the filing of the account and the petition for adjudication and statement of proposed distribution and of the time of the audit, or alternatively, an averment that such notice shall be given and a certification thereof shall be submitted at the audit as hereinafter set forth. In those instances where notice has been given, a copy of said notice, as well as the names and addresses of the parties notified, shall be appended to the petition for adjudication and statement of proposed distribution. In those instances where notice is yet to be given, a copy of said notice, as well as the names and addresses of the parties notified, shall be submitted to the Court at audit, together with a statement executed by the accountant or the accountant's counsel certifying that notice has been given.
(2) Accounts of Personal Representatives. In addition to the papers required by Rule 6.9.D.(1), at the time of the filing of an account of a personal representative, counsel shall file:
(a) the original letters, together with proof of advertisement thereof; and
(b) a typewritten copy of the inventory and of the will and codicils, certified by the accountant or counsel to be true and correct.
(3) Accounts of Trustees. In addition to the papers required by Rule 6.9.D.(1), at the time of the filing of an account of a trustee, counsel shall file:
(a) the original letters or the original trust instrument, if not submitted at a prior audit;
(b) a copy of the trust instrument, certified by the accountant or counsel to be true and correct; and
(c) a preliminary audit statement prepared on the form supplied by the Court and signed by the attorney who will appear for the accountant at the audit.
(4) Accounts of Guardians of the Estates of Minors. In addition to the papers required by Rule 6.9.D.(1), at the time of the filing of an account of a guardian of the estate of a minor, counsel shall file:
(a) a copy of the will, deed or decree by which the guardian was appointed;
(b) a statement that notice of the audit has been given to all known, unpaid claimants;
(c) a statement of the former minor or, if the former minor has been adjudicated an incapacitated person, of the guardian of the estate of the former minor, setting forth the date the former minor attained majority; and that the former minor or the guardian of the estate of the former minor:
(i) has examined the account;
(ii) approves the account and requests that it be confirmed; and
(iii) agrees that the guardian of the estate of the minor shall be discharged upon distribution to the former minor or to the guardian of the estate of the former minor of the balance shown in the account, subject to such additional credits as may be authorized by law and set forth in the adjudication.
(5) Accounts of Guardians of the Estates of Incapacitated Persons. In addition to the papers required by Rule 6.9.D.(1), at the time of the filing of an account of a guardian of the estate of an incapacitated person, counsel shall file:
(a) a statement of the manner and date of appointment of the guardian and a copy of the decree by which the guardian was appointed; and
(b) a statement of whether a personal representative has been appointed if the incapacitated person is deceased; and if so, the date and place of grant of letters and a valid certificate of appointment.
(6) Distribution to Foreign Fiduciary. In addition to the papers required by Rule 6.9.D.(a)(1), at the time of filing an account, when a share of the estate is distributable to a foreign fiduciary, counsel shall file:
(a) a certificate of appointment issued within three months of the date of the filing or a copy of the instrument evidencing the authority of the fiduciary to receive the fund, certified by the proper authorities at the place of issuance to be in effect at the time of the filing;
(b) an affidavit by the foreign fiduciary setting forth whether or not an ancillary administrator has been appointed in Pennsylvania, together with averments that:
(i) the foreign fiduciary is authorized, under the laws of the jurisdiction in which the foreign fiduciary qualified, to receive the fund to be distributed;
(ii) the filing of security has been waived, or the amount of the bond which has been filed and the name of the surety; and
(iii) there are no creditors within the Commonwealth of Pennsylvania of the estate for which the foreign fiduciary has been appointed and no rights of any resident of Pennsylvania will be adversely affected by the requested distribution.
(7) Submission of Original Documents. Unless otherwise ordered by the Auditing Judge, original documents, including, but not limited to, letters testamentary and deeds of trust, need not be refiled if they had been filed in connection with a prior proceeding and counsel certifies the date of the prior submission.
Probate Section Comment: Paragraph (5) applies to those who have been adjudged an incapacitated person by the Court, whether under Chapter 55 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5501 et seq.) or its predecessor.
The requirements of paragraph (6) are based on Chapter 41 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 4101 et seq.). Particular attention is directed to Section 4111 and its correlation with paragraph (6)(b)(iii) of the Rule. Under Section 4111, the Court has broad discretionary power to refuse distribution of a share of an estate to the domiciliary personal representative of a deceased nonresident creditor or other distributee and to require an ancillary administration in Pennsylvania.
Paragraph (7) describes situations in which original documents need not be filed with the audit papers. Letters testamentary, letters of administration, inheritance tax receipts and deeds of trust which are filed with the audit papers will customarily be returned to counsel once an adjudication is issued.
Rule 6.9.E. Appearances. [Rule *69.2]
Counsel for the accountant shall personally appear at the call of the audit list and enter an appearance on the form supplied by the Court. Counsel for any other party in interest who desires to raise objections or otherwise to be heard (or the accountant or other party in interest appearing pro se) shall also personally appear at the call of the audit list and enter an appearance on the form supplied by the Court.
Rule 6.9.F. Partition, Allotment or Distribution of Proceeds of Real Property. [Rule *69.3]
When an accountant or any party in interest requests a partition, allotment or distribution of proceeds of real property, the Court shall make such orders as are deemed advisable concerning the appointment of appraisers; the furnishing of an information certificate or distribution policy from a title insurance company, drawn in the name of the Commonwealth to the use of all persons interested; provisions for owelty; the giving of notice; and such other requirements as may be necessary under the circumstances to protect the parties.
Rule 6.10.A. Under Direction of Auditing Judge. [Rule *70.1]
Objections to an account or statement of proposed distribution shall be made at the audit in such manner as the Auditing Judge shall direct.
Rule 6.10.B. Objections. [Rule *76]
(1) Family Exemption.
(a) Prior to Audit. Written objections to the allowance of the family exemption shall be filed with the Clerk within twenty (20) days of the filing of the petition for allowance. Such objections shall be referred to the Auditing Judge for disposition, or, in special circumstances the petition will be assigned to a judge for hearing and determination. In the absence of objection, the family allowance may be granted on petition.
(b) Audit. Objection to the allowance of the family exemption at the audit shall be presented in such form and shall be disposed of in such manner as the Auditing Judge may deem proper.
(2) Allowance to Surviving Spouse of Intestate. Written objections to the setting aside of real or personal property to the surviving spouse of an intestate shall be filed with the Clerk within twenty (20) days of the filing of the petition for allowance. Such objections will be referred to the Auditing Judge for disposition, or, in special circumstances, the petition will be assigned to a judge for hearing and determination. In the absence of objection, real or personal property may be set aside to the surviving spouse of an intestate on petition and subsequent confirmation.
(3) Report of Master. Appointment by Auditing Judge or Hearing Judge. Objections to the report of a master appointed by an Auditing Judge to assist the Court in the audit of an account, or by a Hearing Judge to whom a case has been assigned, shall be filed with the appointing judge, who shall make such disposition thereof as the Court deems proper.
(4) Appraisal. Objections to appraisals shall be filed in writing with the Clerk prior to confirmation or approval, or with the Court on the date fixed for confirmation or approval. Such objections shall be assigned to the Judge who appointed the appraisers for his disposition.
(5) Real Property. Sale or Mortgage. Objections to a petition for the proposed sale or mortgage of real property shall be filed with the Clerk within twenty (20) days of the filing of such petition. Such objections will be referred to the Auditing Judge for disposition, or, in special circumstances, the petition will be assigned to a judge for hearing and determination. In the absence of objection, a decree may be entered approving the proposed sale or mortgage of real property.
(6) Proceeding under Section 3102 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S.§ 3102) regarding Small Estates. Estates of Minors or Incapacitated Persons. Written objections to a petition in a proceeding under Section 3102 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3102) regarding small estates, or to any petition filed in connection with the estate of a minor or the estate of an incapacitated person, other than matters properly presented at the audit of an account, shall be filed with the Clerk within twenty (20) days of the filing of such petition. If no objection is made by any party in interest, a decree may be entered ex parte. If objection is made, the petition shall be assigned to a judge for hearing and determination.
(7) Not Otherwise Covered by Rule. Objections not otherwise covered by these Rules shall be presented at such time and place, and in such form, as the Court may direct.
(8) Effect Upon Distribution. When the matters which are the subject of a schedule of distribution, or the report of an auditor or master, are so separate and distinct that an objection to any one or more, whether sustained or dismissed, cannot affect the remainder, and the accountant will not be prejudiced by the distribution of such remainder, confirmation of the schedule of distribution or report shall not be suspended, except as to those matters to which objections have been taken; distribution may proceed as to the remainder; and any party from whom such distribution has been withheld may petition the Court to order distribution.
Rule 6.10.C. Accounts and Distribution. [Rule *145]
The practice and procedure with respect to the filing and audit of accounts, as well as the distribution of the assets comprising the estate, shall conform with the practice and procedure governing trustees' accounts.
Rule 6.11.A. Schedules of Distribution. [Rule *72]
(1) Filing. When directed by the Auditing Judge or at the election of the accountant, a Schedule of Distribution, in the form approved by the Court, shall be filed with the Clerk. The Auditing Judge, in his or her discretion, may direct that only awards of real property or personal property to be distributed in kind need be included in the schedule of distribution.
(2) Certification. The attorney for the accountant shall certify that the schedule is correct and in conformity with the adjudication. See (3)(a), (3)(b)(ii) and (6)(b) for additional statements to be included in the certification where appropriate.
(3) Consent or notice.
(a) Written consents to the schedule of distribution may be attached thereto. The attorney for the accountant shall certify whether or not the parties whose consents are attached constitute all parties in interest affected by the filing of the schedule and all other parties to whom notice was directed by the Court.
(b) Notice of the filing of the schedule shall be given to all parties in interest affected thereby and to such other parties as the Court may direct, except those parties whose consents are attached. The notice shall state the date of filing, that a copy of the schedule accompanies the notice or will be sent upon request, and that any party who objects to the schedule must file objections within twenty (20) days of the filing of the schedule under penalty that the Court may otherwise assume that there is no objection and may approve the schedule as filed.
(i) Notice shall be given no later than the day of the filing of the schedule, by a letter addressed to the last known address of the party or to his or her attorney of record.
(ii) It shall be sufficient return of notice for the attorney for the accountant to certify on the schedule that due notice of the filing thereof was given as required by this Rule. A copy of the letter of notice and a list of those to whom notice was sent shall be submitted with the schedule.
(4) Objections.
(a) Objections may be filed within twenty (20) days of the filing of the schedule, and shall indicate the basis for the objections and in what respect the schedule fails to conform to the adjudication. In no event may objections raise questions which actually were or could have been raised at the audit of the account or which could be raised by exceptions to the adjudication.
(b) Objections shall be filed in duplicate with the Clerk, who shall deliver a copy to the Auditing Judge. The Auditing Judge shall re-examine the subject matter; may hold a hearing or argument thereon, at the Auditing Judge's discretion; and may make such disposition of the objections as the Auditing Judge deems proper in a supplemental adjudication.
(5) Approval.
(a) Where the consents of all necessary parties are attached, the Court may approve the schedule immediately upon filing. Where notice was given to any party, the Court may approve the schedule twenty (20) days after the filing thereof.
(b) In the absence of objections, the schedule shall become absolute on the date of approval thereof.
(c) Where objections have been filed, any party may file exceptions to the Auditing Judge's disposition of the objections within twenty (20) days thereof. Where the objections are dismissed and the schedule is approved, the schedule shall become absolute on the twentieth day following approval.
(d) Upon absolute approval of the schedule, the accountant shall have the authority to make necessary assignments and transfers of any property awarded, and the schedule will be attached to and become part of the adjudication.
(6) Confirmation of Title to Real Property. Approval of the schedule of distribution shall constitute confirmation of title in the distributees.
(a) Separate Awards. A schedule of distribution shall set forth separate awards of real property in separate paragraphs.
(b) Description. Certification by Counsel. Real property shall be described in the same detail and with the same particularity as is commonly required to be included in deeds, and, in addition, shall include information pertinent to the derivation of title. Counsel for the accountant shall certify that counsel or counsel's agent has examined the last recorded deed or the record thereof in the public office for recording deeds in the county in which the real estate is located and that the description in the schedule is in conformity therewith.
(c) Certification by Clerk. The Clerk shall, upon request, certify excerpts from an approved schedule of distribution for recording in any public office for recording deeds.
Rule 6.11.B. Settlement of Small Estates under Section 3102 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S.§ 3102). [Rule *73]
(1) Contents of Petition. A petition for the settlement of a small estate shall set forth:
(a) the name, date of death and residence of the decedent;
(b) the name and address of the petitioner and petitioner's relationship to the decedent;
(c) if petitioner be the surviving spouse, the date and place of the ceremonial marriage, and the name and official capacity of the person who performed the ceremony; or, in case of a common-law marriage, all averments necessary to establish the validity of such a marriage;
(d) whether the decedent died testate or intestate; if letters were granted, where, to whom and when they were granted; and the amount of bond (if any) given by the personal representative;
(e) the names, relationships and a brief description of the interests of all persons entitled to share in the decedent's estate under the will or intestate laws; a statement as to whether any of them is a minor, an incapacitated person or deceased, with the name of his or her fiduciary, if any; and a statement as to whether any of them has received or retained any property of the decedent under Section 3101 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3101), or otherwise;
(f) the person or persons, if any, entitled to the family exemption and, if a claim is to be made in the petition, any additional facts necessary to establish the right thereto, as required by Rule 12.1.A.;
(g) a list of the assets of the decedent and the value of each asset, either incorporated in the petition or attached as an exhibit;
(h) an itemized list, either incorporated in the petition or attached as an exhibit, setting forth under separate headings:
(i) all disbursements made prior to the filing of the petition, including the amounts and dates paid, the names of the payees and a description of the purposes of the disbursements; and
(ii) all unpaid claims against the estate, including the amounts of such claims, the names of the claimants, the bases for such claims and indicating which claims are admitted.
In the case of an insolvent estate, such disbursements and unpaid claims shall be listed under separate categories according to the order of priority of payment under Section 3392 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3392).
(i) an averment as to the status of the inheritance tax;
(j) an averment that twenty (20) days written notice of the presentation of the petition has been given to every unpaid beneficiary, heir or claimant who has not joined in or consented to the petition, and, if the decedent's heirs are unknown, to the Attorney General; and
(k) a prayer for distribution of the personal property to those entitled and, in appropriate cases, for the discharge of the personal representative and the release of any surety.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) a copy of the decedent's will certified by counsel to be a true and correct copy;
(b) consents to the petition signed by those unpaid beneficiaries, heirs and claimants who do not join in the petition, and the names of any of them who do not consent and a copy of the notice which has been given to them; and
(c) a copy of the official Inheritance Tax Assessment and, if an inheritance tax payment was made prior to the date of filing the petition, a copy of the inheritance tax receipt.
(3) Notice. Any party in interest who does not join in or consent to the petition shall receive written notice of the intended presentation of the petition to the Court.
(4) Decree. A proposed decree, setting forth a list of all disbursements and distributions of the assets of the estate and, in appropriate cases, providing for the discharge of the personal representative and the release of any surety, shall be attached to the face of the petition.
(5) Appraisal. No appraisal of the decedent's personal property is required, unless ordered by the Court.
Probate Section Comment: If the identity or whereabouts of a distributee is unknown or if there are no known heirs, it is suggested that a report in the form provided by Rule 13.3.A. be attached to the petition.
EXCEPTIONS Rule 7.1.A. Exceptions. Rules Governing. [Rule *77.1]
(1) All challenges to an order, decree, opinion, or adjudication of an account shall be raised by written exceptions. An order, decree, or opinion shall become final, and an adjudication of an account shall be confirmed absolutely as of course, after the expiration of twenty (20) days after the date of such order, decree, opinion, or adjudication, unless written exceptions thereto are filed within said twenty (20) days.
(2) Notwithstanding the provisions of paragraph (1) hereof, the Court will not entertain exceptions to the decree of a Hearing Judge awarding a jury trial or to any other interlocutory order or decree.
(3) Notwithstanding the provisions of provisions of paragraph (1) hereof, exceptions to the disposition of schedules of distribution by the Auditing Judge shall only be filed in accordance with Rule 6.11.A.(5)(c).
(4) Exceptions shall be filed with the Clerk, served in accordance with Rule 3.5.A.(2), and listed for argument as provided in Rule 1.2.B.(3).
(5) Exceptions shall be in writing, numbered consecutively, and signed by the exceptant or the exceptant's attorney. Each exception shall:
(a) be specific as to description and amount;
(b) in no event raise questions which could have been raised previously by claim or objection;
(c) raise but one issue of law or fact, but if there are several exceptions relating to the same issue of law or fact, all such exceptions shall be included in one exception; and
(d) set forth briefly the reason or reasons in support of the exception.
Probate Section Comment: Under this Rule, the filing of timely exceptions is necessary to preserve an issue for appellate review. See Estate of Volkhardt, 484 Pa. 52, 398 A.2d 656 (1979). This Rule does not, however, address the issue of whether an order, decree, or opinion is otherwise appealable or final under the appellate rules. See generally Hunter, Pennsylvania Orphans' Court Commonplace Book, Appeals § 6; Pa. R.App.P. §§ 301-342.
Rule 7.1.B. Exceptions. Effect Upon Distribution. [Rule *77.2]
When the matters which are the subject of an adjudication are so separate and distinct that an exception to any one or more, whether sustained or dismissed, cannot affect the remainder, and the accountant will not be prejudiced by the distribution of such remainder, confirmation of the adjudication shall not be suspended, except as to those matters to which exceptions have been taken; distribution may proceed as to the remainder; and any party from whom such distribution has been withheld may petition the Court to order distribution.
AUDITORS AND MASTERS Rule 8.1.A. Appointment. [Rule *80]
(1) Auditor to Examine and Audit Account. An auditor to examine and audit an account may be appointed by the Court when all parties in interest, or their counsel, consent thereto in writing.
(2) Auditor to State Account. An auditor to state an account may be appointed by the Court when a proper account cannot be obtained from a fiduciary. Such appointment may be made sua sponte or upon petition of any party in interest. The auditor may be required to file the account and to participate in such further proceedings as the Court may direct.
(3) Master. Amicus Curiae. A master or an amicus curiae with the powers of a master may be appointed by the Court, sua sponte or upon petition of any party in interest.
Rule 8.1.B. Manner and to Whom Given. [Rule *81.1]
(1) The Court appointed auditor, master, or amicus curiae shall give written notice of such appointment and of the time and place of such appointee's first hearing to all persons who have appeared of record, and to such other persons and in such manner as the Court may direct.
(2) Notice of succeeding hearings given by the auditor, master or amicus curiae at a hearing of which proper notice has been given shall constitute sufficient notice of such succeeding hearings.
Rule 8.2.A. Where Filed. [Rule *82.1]
(1) Report of Auditor. Reports of auditors shall be filed with the Clerk.
(2) Reports of Master, Amicus Curiae. Reports of a master or an amicus curiae, shall be filed with the Appointing Judge.
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1 If an answer is filed which raises issues of fact, either petitioner's counsel or respondent's counsel should write to the Administrative Judge and request that the pleadings be assigned to a Hearing Judge for disposition.
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