[29 Pa.B. 2964]
[Continued from previous Web Page] Rule 8.7.A. Report of Auditor or Master. [Rule *87.1]
(1) Auditor to Examine and Audit Account.
(a) Time and Contents of Notice. At least thirty (30) days prior to filing the report, the auditor appointed to examine and audit an account shall give notice to all parties in interest or their counsel which shall state:
(i) the date upon which the report filed;
(ii) that a copy of the report is either enclosed or will promptly be sent upon request; and
(iii) that any person who objects to the report must file written objections thereto with the auditor prior to the intended filing date under the penalty that the Court may otherwise assume that there is no objection and may accept the report as submitted.
(b) Objection to Report. Prior to the date set by the auditor for filing the report, any party in interest may file with the auditor written objections to the report. In such event, the auditor shall supplement the report by a full consideration of the objections seriatim, setting forth concisely all reasons for recommending that the Court sustain or dismiss each objection. The auditor shall then file the report, together with a copy of the objections and the supplemental report, giving the parties in interest or their counsel concurrent notice of such filing and a copy of the supplemental report.
(2) Auditor to State Account. Objections to the report of an auditor who states an account shall be asserted as objections to the auditor's account, as provided in Rule 6.10.A.
(3) Master Amicus Curiae. Paragraph (1) shall apply to a master and an amicus curiae with the powers of a master.
Probate Section Comment: Objections to the report of an auditor appointed to examine and audit an account, a master or an amicus curiae should be presented in a form substantially similar to exceptions to an adjudication.
Rule 8.8.A. Filing With Clerk. [Rule *88.1]
The Court may require that security be filed with the Clerk for the compensation and expenses of the auditor, master, or amicus curiae.
OFFICIAL EXAMINERS Rule 9.1.A. Charitable Trusts. Visitorial Powers. [Rule *92]
(1) Exercise: In General.
In the exercise of its visitorial and supervisory powers over charitable trusts, in general, the Court will, in its discretion, from time to time, by general rule or special order, direct the official examiner, or a special examiner appointed for the purpose, to make an examination of the assets of a designated trust and an investigation to determine whether the purposes of the trust are being carried out in the manner provided by the trust instrument; and to submit to the Court a written report thereon which shall follow as nearly as may be the form prescribed by these Rules for a master's report and shall contain specific recommendation for the Court's consideration.
(2) Cemetery Trusts.
In the exercise of its visitorial and supervisory powers over cemetery trusts, the Court will, from time to time, appoint a cemetery trust examiner, or examiners, who shall, periodically, inspect all cemetery lots and places of interment or sepulcher maintained under cemetery trusts subject to the jurisdiction of the Court; audit, informally, trustee's accounts pertaining thereto; examine the assets thereof; and submit written reports thereon to the Court in accordance with such rules and regulations as the Court will, from time to time, promulgate.
Rule 9.1.B. Termination of Trust. [Rule *93]
A trustee making distribution of the corpus of a trust upon its termination without formal accounting shall obtain from the distributees a receipt and waiver of accounting which shall be delivered to the examiner and attached to the examiner's report thereof. Such receipt and waiver shall not constitute an approval by the Court of the administration of the trust, nor operate as a discharge by the Court of the trustee or the trustee's sureties. If an estate is distributed without an accounting, the fiduciary shall be personally liable for the compensation of the examiner, unless provision is made therefor at the time of distribution.
Rule 9.1.C. Compensation. [Rule *94]
(1) In General. Each estate shall be liable for the compensation of the examiner based upon a schedule of fees fixed by the Court. In special circumstances, the compensation of the examiner will be fixed by special order of the Court.
(2) Charitable Trusts.
(a) In General. Each estate shall be liable for the compensation of the examiner in such amount as the Court shall specifically fix in each case.
(b) Cemetery Trusts. The cemetery trust examiner, or examiners, appointed under Rule 9.1.A.(2), supra, shall be paid by the trustees in an amount fixed by the Court.
REGISTER OF WILLS Rule 10.2.A. Certification of Record. [Rule *102]
(1) Contents of Petition. A petition to fix a date for a hearing upon a certification of record to the Court from the Register shall be filed with the Clerk and thereafter promptly presented to the Administrative Judge or his or her designee and shall set forth:
(a) the nature of the proceedings before the Register;
(b) the basis for the certification of record; and
(c) the names and addresses of all parties in interest, including those who have not been made parties to the record.
(2) Certification by Register. When the record has been certified by the Register, the petition required by paragraph (1) shall be presented by the party who instituted the contest, or, in special circumstances, as the Court may direct.
(3) Citation. Upon allowance of the petition by the Administrative Judge or his or her designee, a citation will be issued, directed to all parties in interest, including those not represented on the record, to show cause why the matter upon which the certification is requested or based, as the case may be, should not be determined by the Court.
Rule 10.2.B. Certifications. Assignment to an Audit List. Notice. [Rule *103]
(1) Certifications allowed pursuant to Rule 10.2.A, after filing proof of service of the citation, shall be placed on the audit list and assigned by the Clerk to the Judges in rotation. In special circumstances, the Administrative Judge may assign a judge to hear the matter. Where proof of service is filed before 3 p.m. on the fifth Wednesday preceeding an audit list, the matter shall be placed on that audit list.
(2) The Clerk shall forthwith send notice to counsel who filed the petition for citation of the date when the matter will appear on the audit list.
(3) The Clerk shall, at least fifteen (15) days prior to the call of such audit list, give notice in writing to all parties in interest of the following:
(a) that the matter has been placed upon an audit list, and the date, the time and the courtroom scheduled for the call of the audit;
(b) the nature of the interest of the person to whom such notice is given; and
(c) a brief description of the nature of the dispute.
(4) In those instances where the matter has been specially assigned by the Administrative Judge to a Hearing Judge, notice shall be given by such party, and at such time and in such form, as the Hearing Judge may direct.
Rule 10.2.C. Appeal from Register. [Rule *104]
(1) Commencement of Appeal.
(a) Appeals from the judicial acts or proceedings of the Register shall be initiated by filing a notice of appeal with the Clerk on the form supplied by the Clerk and with respect to an Inheritance Tax Appeal, a copy shall be filed with the Register.
(b) After the notice of appeal has been filed with the Clerk, the Register upon request shall forthwith transmit the record to the Clerk.
(2) Petition for Citation.
Contemporaneously with the filing of the notice of appeal, the appellant shall file a petition for citation with the Clerk which shall set forth:
(a) the nature of the proceedings before the Register;
(b) the basis for the appeal together with copies of all wills involved in the controversy known to be in existence;
(c) the names and addresses of all parties in interest, including those who have not yet been made parties to the record; and
(d) the facts upon which jurisdiction is based.
(3) Issuance of Citation.
If the petition sets forth a prima facie case, a citation will be issued, directed to all parties in interest, including those not represented on the record, to show cause why the appeal should not be sustained and the judicial act or proceeding complained of be set aside.
(4) Service of Citation.
In accordance with Rule 3.5.B., service of the citation, together with a copy of the petition for citation, shall be made on all parties in interest within thirty (30) days of the issuance of the citation by the Clerk and the original citation with proof of service endorsed or annexed thereon shall be filed with the Clerk.
(5) Placement on Audit List.
The Clerk shall place the appeal upon the next available audit list sixty (60) days after the issuance of the citation.
(6) Notice of Audit List.
The appellant, at least fifteen (15) days prior to the call of such audit list, shall give notice in writing to all other parties in interest of the following:
(a) that the matter has been placed upon an audit list, and the date, the time, and the courtroom scheduled for the call of the audit;
(b) the nature of the interest of the person to whom such notice is given; and
(c) a brief description of the nature of the dispute.
(7) Special Notice.
In those instances where the matter has been specifically assigned to a Hearing Judge, notice shall be given by such party, and at such time and in such form, as the Hearing Judge may direct.
Rule 10.2.D. Grant of Jury Trial. [Rule *106]
(1) On appeal from the Register, or in a proceeding removed from or certified by the Register, the Hearing Judge in his or her discretion may impanel a jury at any stage of the proceedings and forthwith proceed with a jury trial.
(2) On appeal from the Register, or in a proceeding removed from or certified by the Register, the Hearing Judge in his or her discretion may, either at the conclusion of all the evidence presented by proponents and contestants or before all such evidence has been produced, when the Hearing Judge is satisfied that sufficient evidence has been presented so to warrant, grant a jury trial at a future date.
(3) If a jury trial is granted, as provided in paragraph (1) or (2) hereof, the Hearing Judge shall enter a decree specifying the issues to be tried, which may be in the form agreed upon by the parties, or as the Hearing Judge shall determine.
Rule 10.2.E. Inheritance Tax Appeals. [Rule *107]
An appeal from an inheritance tax appraisement shall be filed in the office of the Register on the form provided by the Register. Thereafter, appellant shall file with this Court a petition in accordance with Rule 10.2.B. and proceed as provided in Rule 10.2.C.
JURY TRIALS Rule 11.2.A. Trial Judge. [Rule *110]
When a jury trial has been granted by a Hearing Judge as provided in Rule 10.2.D.(1), the Hearing Judge impaneling the jury shall proceed to the trial of the case; however, when a jury trial has been granted as provided in Rule 10.2.D.(2), the case will be assigned to the Judges in rotation, or, in special circumstances, the Administrative Judge may assign a judge to preside.
Rule 11.2.B. Motions After Trial. [Rule *112.1]
Motions after trial shall be placed by the Clerk on the argument list, as of course.
SPECIAL PETITIONS Rule 12.1.A. Family Exemption. Additional Requirements. [Rule *121.1]
(1) Contents of Petition.
A petition for the family exemption shall also set forth in separate paragraphs:
(a) the name, residence and date of death of decedent;
(b) the name, address, and relationship of the petitioner to the decedent, and whether the petitioner was a member of the same household as the decedent at the date of his death;
(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; where, when, and to whom letters were granted; if decedent died intestate, the names, relationship, and addresses of those interested as next of kin;
(e) the location and valuation of the property claimed; and
(f) that twenty (20) 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.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) a copy of the will;
(b) a copy of the inventory showing the valuation of the property claimed, when the exemption is claimed from personal property, and the gross estate exceeds the amount of the family exemption provided by law; and
(c) a verified return of notice.
Rule 12.1.B. When Appraisal Unnecessary. [Rule *121.2]
Unless otherwise directed by the Court, no appraisal shall be required, if the exemption is claimed:
(1) from personal property and the gross value of the decedent's estate does not exceed the amount of the family exemption provided by law; or
(2) wholly or in part from real estate, if all parties in interest agree on the valuation.
Rule 12.1.C. Allowance. [Rule *121.3]
(1) Prior to Audit.
(a) Personal Property. If the petition requests the exemption prior to audit, the petitioner shall file the petition with the Clerk and thereafter shall give twenty (20) days' written notice of such intention to all persons adversely affected thereby who do not join in the prayer of the petition. In the absence of objection, on presentation of a verified return of notice, an appropriate decree may be entered.
(b) Real property. If the petition requests the exemption prior to the audit and the parties in interest do not agree upon the valuation, the practice and procedure shall be as provided by Rule 12.2.C.
(2) At Audit. The petition may be filed with the Clerk at any time prior to the audit in order that the demand may be a matter of record, and the filing thereof shall be brought to the attention of the Auditing Judge, or the request may be presented at the audit. The Auditing Judge may require that the property claimed be appraised or that notice be given in such manner as the Auditing Judge shall direct.
Rule 12.1.D. Voluntary Distribution. [Rule *121.4]
When the personal representative without the Court's approval delivers assets of the estate in satisfaction of the family exemption the same shall be set forth as a disbursement in the account and may be the subject of objection by any claimant or party in interest.
Rule 12.1.E. Procedure Under Section 3546 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3546). [Rule *74]
(1) Contents of Petition. A petition under Section 3546 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3546) for the determination of title shall set forth:
(a) the name of the petitioner and petitioner's relationship to the decedent;
(b) the facts on which the claim of the petitioner is based;
(c) whether the decedent died testate or intestate, and where, when, and to whom letters were granted;
(d) a description of real property located within the Commonwealth, and the place, book, and page of recording the last deed thereto;
(e) the names and addresses of all known creditors and parties in interest; and
(f) the facts material to a determination of the title.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) the notice which has been given to creditors, and parties in interest; if the heirs of the decedent are unknown, a copy of the notice given to the Attorney General; and
(b) a copy of decedent's will.
Rule 12.2.A. Allowance to Surviving Spouse of Intestate. Additional Requirements. [Rule *122.1]
(1) Contents of Petition. A petition for the allowance to the surviving spouse of an intestate shall also set forth in separate paragraphs:
(a) the information required in a petition for family exemption under Rule 12.1.A., as far as appropriate;
(b) the death of decedent, intestate, without issue or adopted children; the names, addresses, and the relationship of those interested as next of kin; and
(c) that ten (10) days' prior 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.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) if a ceremonial marriage occurred, a certified copy of the marriage certificate;
(b) if there were prior marriages by either spouse, a copy of the death certificate, if dissolved by death; or a certified copy of the decree of divorce by which such marriages were dissolved;
(c) a copy of the inventory and appraisement; and
(d) a verified return of notice.
Rule 12.2.B. Conclusiveness of Averments. [Rule *122.2]
If the averments of the petition are not conclusive as to the right of the spouse to the allowance being claimed, the matter may be referred to a master, to a Hearing Judge or to the Auditing Judge.
Rule 12.2.C. Appraisal. Notice. Confirmation. [Rule *122.3]
(1) Filing of Appraisal. The appraisers shall, within thirty (30) days after their appointment, file with the Clerk an appraisal of the property claimed.
(2) Notice of Appraisal. Upon the filing of the appraisal, notice thereof shall be given to the personal representative, and to the next of kin; and, if there be neither personal representative, nor next of kin, to the Attorney General. The notice shall contain a copy of the petition and the appraisal, and a statement that confirmation of the appraisal and the setting apart of the real estate to the surviving spouse will be requested and may be allowed by the Court, of which not less than ten (10) days' notice is given therein, unless objections are filed. If the address or whereabouts of any of the next of kin in unknown, notice shall be given in such manner as the Court shall direct.
(3) Confirmation and Setting Apart of Allowance. In the absence of objection, at the expiration of ten (10) days after giving of notice under paragraph (2), and after the last appearance of the advertisement, if any, upon submission of proof of notice, the Court may enter a decree.
Committee Comment: The Rule recognizes the present practice of making the award of real estate in satisfaction of the spouse's allowance a part of the distribution decree when a Court accounting is filed. While this Rule will be employed only in a minimum of instances for the foregoing reason and also because of the availability of Section 3546 of the Probate, Estates and Fiduciaries Code, it, nevertheless, is considered advisable to preserve it in its altered form as a guide when it is to be employed.
Rule 12.3.A. Petition to Enforce the Rights of an Electing Spouse under Chapter 22 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. 2201 et. seq.). [Rule *123.1]
(1) Contents of Petition. The petition by an electing spouse shall set forth the following:
(a) the name, date of death and residence of the decedent;
(b) the name and address of the petitioner, and the petitioner's residence on the date of the decedent's death;
(c) an averment that the petitioner is the surviving spouse of the decedent; the date and place of the ceremonial marriage, and the name of the 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;
(e) the approximate value of all assets which may be subject to the spouse's election, to the extent known by petitioner;
(f) the date of the filing of the election, and the date and method of notice to the decedent's personal representative of the filing;
(g) a description of the party or parties against whom relief is sought, including whether each party is a fiduciary, custodian or obligor, and whether each is the original beneficial recipient or a successive donee to the property or its proceeds;
(h) a description of the relief sought, describing the specific acts to be performed or the extent of the personal liability to be imposed;
(i) any other information relevant to the disposition of the petition; and
(j) a prayer for a citation to show cause why the relief sought should not be granted, or if no citation is required, a prayer for the relief requested.
(2) Exhibits. The following shall be attached to the petition:
(a) a copy of the decedent's will, deed of trust or other instrument of conveyance (if any) pertaining to the property with respect to which relief is requested; and
(b) consents to the relief requested signed by those parties in interest who have consented thereto and who have not jointed in the petition.
(3) Service of Citation and Notice.
(a) Petitions Requiring the Issuance of a Citation.
(i) In accordance with Rule 3.5.B., service of the citation shall be made on all parties to whom the citation is directed, and the original citation with proof of service endorsed or annexed thereon shall be filed with the Clerk.
(ii) Petitioner shall given written notice to all other parties in interest who have neither joined in the petition nor consented to the requested relief by letter and copy of citation mailed to all such parties at least twenty (20) days prior to the return date of the citation.
(iii) Counsel to petitioner shall file with the Clerk, prior to the return date of the citation, a certification of mailing which shall list the names and addresses of all parties to whom notice was so given, including a copy of the notice given.
(b) Notice in the Case of Petitions Not Requiring the Issuance of a Citation. In accordance with Rule 1.2.A., petitioner shall give written notice of the intended presentation of the petition to the Court and shall attach to the petition a certification in the form required by Rule 1.2.A.(2)(b).
(4) Decree. There shall be attached to the face of the petition:
(a) In the case of petition requiring the issuance of a citation, a preliminary decree in approved form awarding a citation as requested in the petition; and
(b) A final decree in approved form providing for the relief requested. In appropriate cases, the decree will fix the amount of security, if any, to be entered.
Comment: Under Section 764 of the Probate, Estates and Fiduciaries Code Section (20 Pa.C.S. § 764), jurisdiction of the person is obtained by citation awarded by the Orphans' Court Division. Accordingly, petitioner should request the award of a citation directed to each person over whom personal jurisdiction is required in order to obtain the relief requested.
Rule 12.3.B. Petition to Restrain the Payment or Transfer of Property under Section 2211(d) of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 2211(d)). [Rule *123.2]
(1) Contents of Petition. The petition by a surviving spouse shall set forth the following:
(a) the same information which is required under paragraphs (1)(a) through (d) under Rule 12.3.A.;
(b) if an election has been filed, the date of the filing, and the date and method of notice to the decedent's personal representative of the filing;
(c) an averment that the property whose transfer or payment the petitioner seeks to restrain is property which may be subject to election as set forth in Section 2203 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 2203) and a detailed description of the property to the extent known by the petitioner, which shall include the following:
(i) the nature of the property and its approximate fair market value;
(ii) the names of all persons holding title to the property at the time of the decedent's death and at the time of presenting the petition;
(iii) the identification of any fiduciary having an interest in the property; and
(iv) the nature of the decedent's interest in the property and the date of any transfers of any interest held by the decedent in the property;
(d) an averment that failure to restrain the transfer or payment of the aforesaid property may result in irreparable injury to the petitioner;
(e) any other information relevant to the disposition of the petition; and
(f) a prayer for a citation, directed to all persons whom the petitioner alleges may transfer or make payments of the property described in paragraph (1)(c) hereof, to show cause why they should not be restrained from making payments or transfers of the aforesaid property.
(2) Exhibits. The following shall be attached to the petition:
(a) a copy of the decedent's Will, deed of trust or other instrument of conveyance (if any) pertaining to the property with respect to which relief is requested; and
(b) consents to the relief requested signed by those parties in interest who have consented thereto and who have not joined in the petition.
(3) Service of Citation and Notice.
(a) Service of the citation shall be made on all parties to whom the citation is directed, and the original citation with proof of service endorsed or annexed thereon shall be presented at the hearing.
(b) Petitioner shall give written notice to all other parties in interest who have neither joined in the petition nor consented to the requested relief, by letter and copy of citation mailed to all such parties at least twenty (20) days prior to the hearing. At the hearing counsel to petitioner shall present a certification of mailing which shall list the names and addresses of all parties to whom notice was so given, including a copy of the notice given.
(4) Decree. There shall be attached to the face of the Petition:
(a) A preliminary decree in approved form awarding a citation as requested in the petition and fixing a date for a hearing; and
(b) A final decree in approved form providing for the relief requested. In appropriate cases, the decree will fix the amount of security, if any, to be entered.
Rule 12.3.C. Petition to Extend the Time for a Surviving Spouse to Elect to Receive an Elective Share in Accordance with Section 2210(b) of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 2210(b)). [Rule *123.3]
(1) Contents of Petition. A petition by a surviving spouse shall set forth the following:
(a) The same information which is required under paragraphs (1)(a) through (d) under Rule 12.3.A.;
(b) The fact relied upon to justify an extension of time in which to file an election;
(c) any other information relevant to the disposition of the petition; and
(d) a prayer for the extension requested.
(2) Exhibits. The following shall be attached to the petition:
(a) a copy of the decedent's will, deed of trust or other instrument of conveyance (if any) pertaining to the property which may be subject to the spouse's elective rights; and
(b) consents to the extension requested signed by those parties in interest who do not join in the petition, and the names of those parties who do not consent and a copy of the notice which has been given to them.
(3) Notice. Any party in interest who does not join in the petition or consent to the extension shall receive written notice of the intended presentation of the petition to the Court.
(4) Decree. A proposed decree in approved form shall be attached to the face of the petition.
Rule 12.4.A. Appointment. Additional Requirements. [Rule *124.1]
(1) In General. A guardian ad litem and/or a trustee ad litem will be appointed when the discharge of a trustee or of the trustee's estate is sought, a distribution of corpus is to be made, in any other matter in which the Court considers that the interest of a minor, incapacitated person, absentee, presumed decedent or unborn or unascertained person is not adequately represented by other living persons sui juris who have similar or non-adverse interests or in any other circumstance that the Court deems desirable. If the fiduciary is willing to accept an adjudication without prejudice to the rights of minors and unascertained interests, the Court may waive such appointment.
(2) Procedure. Counsel for the accountant or any party in interest, at least two weeks prior to the date upon which the case is listed for audit or hearing, shall present to the Auditing or Hearing Judge either a petition for appointment of a guardian ad litem and/or trustee ad litem or a written request for the waiver of the appointment of a guardian ad litem and/or trustee ad litem.
(a) A petition for any such appointment shall set forth the information required by Sup. Ct. O.C. Rule 12.4(c).
(b) A request for waiver of any such appointment shall set forth:
(i) the name, address, and, if applicable, date of birth of the minor, incapacitated person, absentee, presumed decedent or unborn or unascertained person and the relationship to the decedent or settlor;
(ii) the interest of the minor, incapacitated person, absentee, presumed decedent or unborn or unascertained person and the provisions of any instrument creating such interest;
(iii) the name, address and interest of each sui juris party in interest who has a similar interest to the minor, incapacitated person, absentee, presumed decedent or unborn or unascertained person and whose interest is not adverse to such person;
(iv) a statement why the accountant or other party in interest believes that such party in interest is qualified to represent the interest of the minor, incapacitated person, absentee, presumed decedent or unborn or unascertained person; and
(v) a statement that notice of the audit or hearing has been given to such party in interest so identified as representative of the minor, incapacitated person, absentee, presumed decedent or unascertained person.
(3) Appointment. A guardian ad litem and/or a trustee ad litem shall be appointed only by the Auditing Judge or Hearing Judge assigned to preside at the audit or hearing at which the guardian ad litem and/or trustee ad litem shall appear and act on behalf of such persons as he or she has been appointed to represent.
(4) Time of Filing of Report. The guardian ad litem and/or trustee ad litem shall file the report within 60 days after appointment by the Court unless the time for filing is otherwise shortened or extended by (a) the Court or (b) agreement of the parties.
(5) Contents of Report. The report of the guardian ad litem and/or trustee ad litem shall contain the following:
(a) a statement of when, how and why the guardian ad litem and/or trustee ad litem was appointed;
(b) the identity and interests of persons on whose behalf the guardian ad litem and/or trustee ad litem has been appointed;
(c) a review of the account, if applicable;
(d) a statement of the legal and other issues involved and the position of the guardian ad litem and/or trustee ad litem with respect thereto; and
(e) such other information as the guardian ad litem and/or trustee ad litem deems relevant.
The report may also contain a request by the guardian ad litem and/or trustee ad litem for compensation.
(6) Discharge. The guardian ad litem and/or trustee ad litem shall be deemed discharged upon the date that the adjudication or judgment becomes final or upon final approval of the schedule of distribution, if one is required, unless reappointed by the Court on its motion with compensation as directed by the Court.
Probate Section Comment: In most instances it is inappropriate for an ad litem to file exceptions.
Rule 12.4.B. Compensation. [Rule *124.2]
Each estate shall be liable for the compensation of the guardian ad litem or the trustee ad litem based upon a schedule of fees fixed by the Court. In special circumstances, the compensation of the guardian ad litem or the trustee ad litem will be fixed by special order of the Court.
Rule 12.5.A. Minor's Estate. Appointing Judge. [Rule *125.1]
The Judge who appoints a guardian or who awards a fund to a minor or to the minor's parent as natural guardian will be designated ''Appointing Judge.'' Generally, all matters pertaining to the administration of the minor's estate will be referred to the Appointing Judge.
Rule 12.5.B. Minor's Estate. Exhibits. [Rule *125.2]
The following exhibits shall be attached to the petition:
(1) Consent of Parents or Person in Loco Parentis. Written consent of the parents or surviving parent of the minor to the appointment of a guardian for his or her estate or person is required. If both parents are deceased, such consent is required of the adult person with whom the minor resides or of the superintendent or other official in charge of the institution having custody of the minor, and in all cases of a married minor, of such minor's spouse. If such consent is not obtained, the petitioner shall set forth the reason and give such notice of the petition as the Court may direct.
(2) Consent of Individual Guardian. When the proposed guardian is an individual, his or her written consent to act as such shall contain, in addition, the following statements:
(a) his or her business, and domicile;
(b) that he or she is a citizen of the United States, able to speak, read and write the English language; and
(c) 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.
(3) Funds Arising from Litigation. If any part of the minor's estate was obtained as the result of litigation or compromise of litigation in a Court of record, a copy of the decree approving the compromise and distribution of the proceeds of the suit shall be attached to the petition.
Rule 12.5.C. Minor's Estate. Restricted Account. [Rule *125.3]
(1) Waiver of Security. In lieu of the entry of security, the Court, in the decree appointing the guardian, may authorize the guardian:
(a) to deposit the funds of the minor in an interest-bearing deposit; or
(b) to invest in a building and loan association of which the principal office is located in Philadelphia in an amount not to exceed that which is authorized under the laws of the Commonwealth of Pennsylvania; subject to the express restriction, to be noted on the records of the institution, that no withdrawals shall be made therefrom without order of Court, with a further requirement that the evidence of the deposit or investment, marked to indicate the restriction, shall be promptly exhibited to the Court.
(2) Limitation. A deposit or investment of principal under this Rule shall not exceed the amount which is fully insured by the Federal Savings and Loan Insurance Corporation or the Federal Deposit Insurance Corporation.
(3) Payment at Majority of Minor.
(a) When the gross estate does not exceed $12,000.00, the decree of the Court may contain a further provision that if no withdrawals are made from the account during minority, the institution may pay over the funds when the minor attains majority; upon the joint order of the guardian and the late minor without further order of the Court.
(b) If the deposits or investments of principal under this Rule exceed $12,000.00 or if, upon subsequent order of the Court, withdrawals have been made from the account during minority, the guardian shall file a petition for the guardian's discharge upon the minor's attaining majority. There shall be attached to the petition:
(i) a statement in the nature of an account, containing items of administration, distribution, principal, and income, which shall be separately stated;
(ii) an affidavit by the guardian setting forth that the guardian has received no additional assets belonging to the minor; and that all claims of which the guardian has notice have been paid; and
(4) Additional Assets. When the guardian has received assets in addition to the deposit or investment made in accordance with this Rule, the guardian shall account as if the restricted account did not form part of the estate.
(5) A depository in which a guardian of the estate of a minor or an incapacitated person has deposited the funds of said estate in a restricted savings account or certificate pursuant to Court order is authorized to release sufficient funds therefrom to pay income taxes levied by the state or federal government upon said estate upon the signature of the guardian without Court approval.
Rule 12.5.D. Minor's Estate. When Guardian Unnecessary. [Rule *125.4]
(1) Disposition. In General. If the value of the real and personal estate of a minor does not exceed the statutory limitation, the Court may:
(a) authorize payment or delivery thereof to the minor, or the parent or other person maintaining the minor;
(b) direct the deposit of the money in a restricted account, in the name of a natural guardian of the minor, or of the minor himself; or
(c) make such provision for the retention or deposit of securities or other assets, as the Court shall deem for the best interests of the minor.
(2) Mortgage or Sale of Real Property. If the entire estate of a minor does not exceed the statutory limitation, the Court, upon petition, may authorize the parent or other person maintaining the minor to convey or mortgage any real property forming a part or all of such estate, without the appointment of a guardian or the entry of security. The petition shall conform to the requirements of the Rules governing the sale or mortgage of real property by a guardian. The order of the Court may be conditioned upon the deposit of the proceeds of the sale or mortgage in a restricted account.
Rule 12.5.E. Minor's Estate. Allowances. [Rule *125.5]
(1) In General.
(a) Responsibility of Guardian. Expenditures from income for the benefit of the minor, and counsel fees in a nominal amount for routine services, whether payable from principal or income, should ordinarily be made by the guardian upon the guardian's own responsibility without application to the Court for approval.
(b) Petitions. Permissive. Mandatory.
(i) Permissive. The guardian may petition the Court for approval of periodical payments from income needed from the maintenance, support or education of the minor, the minor's spouse or children.
(ii) Mandatory. No payments shall be made by the guardian, unless approval by the Court is first obtained, when payment is to be made from principal, except as provided in paragraph (1)(a) of this Rule, or, when special services have been performed by counsel and the guardian is in doubt as to the reasonableness of the fee.
(2) Contents of Petition. Allowance for Maintenance, Support or Education. A petition for an allowance from a minor's estate, for the maintenance, support or education of the minor, the minor's spouse or children, shall set forth:
(a) the manner of the guardian's appointment and qualification, and the dates thereof; and the terms of the instrument creating the estate;
(b) the age and residence of the minor; whether the minor's parents are living; the name of the person with whom the minor resides; and, if married, the name and age of the minor's spouse and children;
(c) the value of the minor's estate, real and personal, and the net annual income;
(d) the circumstances of the minor, whether employed or attending school; if the minor's mother or father, or other person charged with the duty of supporting the minor, is living, the financial condition and income of such person and why such person is not discharging his or her duty to support the minor; and whether there is adequate provision for the support and education of the minor, or the minor's spouse and children;
(e) the date and amount of any previous allowance by the Court, and the name of the Judge who granted it;
(f) the financial requirements of the minor and the minor's family unit, in detail, and the circumstances making such allowance necessary; and
(g) if the petition is presented by someone other than the guardian, that demand was made upon the guardian to act, and the reason, if any, given by the guardian for the guardian's failure to do so.
(3) Contents of Petition. Allowance of Counsel Fee. A petition for the allowance of counsel fee shall set forth the views of the guardian with respect to the reasonableness of the fee and contain sufficient facts to enable the Court to pass judgment on the matter. The following exhibits shall be attached to the petition:
(a) a statement of counsel setting forth in detail the nature and extent of the services performed;
(b) the joinder of the minor's parents or surviving parent; or, if both parents are deceased; the joinder of the adult person with whom the minor resides, or the superintendent or other official in charge of the institution having custody of the minor, and in all cases of a married minor, of his or her spouse; and
(c) the joinder of the minor, if over eighteen (18) years of age.
Rule 12.6.A. Appointment of a Trustee. Exhibits. [Rule *126.1]
The following exhibits shall be attached to the petition for the appointment of a trustee:
(1) a copy of the trust instrument;
(2) the written consent of the proposed trustee to act as such; and
(3) the written consent of any co-trustee.
Rule 12.7.A. Discharge of a Fiduciary. Additional Provisions. [Rule *127.1]
(1) Affidavit. The affidavit to the petition shall include an averment that the parties who have signed the consents to discharge are all the parties interested in the estate, or the reason for the failure of any party to consent. In the latter instance, the Court may, if the circumstances require, direct the issuance of notices by citation or otherwise.
(2) Exhibits. Consents. Written consent of the surety, of all parties in interest, and of the surviving or successor fiduciary shall be attached to the petition. Such consent may be included in a satisfaction of award attached to the petition.
Rule 12.7.B. Discharge of a Personal Representative. Section 3184 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3184). [Rule *127.2]
When the gross real and personal estate of a decedent does not exceed the statutory limitation, the personal representative, after the expiration of one year from the first complete advertisement of grant of letters, may present a petition to the Court with an account attached under the provisions of Section 3184 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 3184). The petition shall conform as far as practicable to the requirements of a petition under Rule 6.11.B.
Rule 12.7.C. Fiduciaries in Military Service. Appointment of Substituted Fiduciary Pro Tem. Section 4301 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 4301). [Rule *127.3]
(1) Contents of Petition. A petition under Section 4301 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 4301) shall set forth:
(a) the facts necessary to confer jurisdiction upon the Court;
(b) the estimated value of the estate;
(c) the names of all parties in interest, the nature and extent of their interest, stating who are minors or incapacitated persons, with the names and the record of the appointment of their guardians, committees, or trustees;
(d) that notice of the presentation of the petition has been given to all parties in interest who are sui juris;
(e) the name and address of the person proposed as a substitute fiduciary pro tem, if such an appointment is requested; the nature and relationship of such person to the estate or to the parties; and
(f) such other facts as may be necessary to enable the Court to pass judgment on the matter.
(2) Exhibits. A copy of the will or deed creating the trust, the consent of the co-trustees and a verified return of notice shall be attached to the petition.
Rule 12.8.A. Partition. Additional Provisions. [Rule *128.1]
(1) Account. Auditor. The fiduciary selling real property in a partition proceeding shall file an account after the sale is completed. The Court may dispose of the matter at the audit of the fiduciary's account or may appoint an auditor to ascertain whether there are any liens or other encumbrances on such real property affecting the interest of the parties.
(2) Distribution Policy. If distribution of the proceeds of sale in partition or owelty is made by the Court, a distribution policy, issued by a title insurance company, drawn in the name of the Commonwealth to the use of all persons interested in the fund, shall be submitted to the Court. The premium charge for this policy shall be educated from the fund as costs.
[Continued on next Web Page]
No part of the information on this site may be reproduced for profit or sold for profit.This material has been drawn directly from the official Pennsylvania Bulletin full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
