[29 Pa.B. 2964]
[Continued from previous Web Page] Rule 12.9.A. Petitions for Leave to Sell Real Property at Public Sale under Sections 3353, 5155, 5521(23) and 7133(16) of the Probate, Estates and Fiduciaries Code. [Rule *129.1]
(1) Contents of Petition.
(a) A petition by a personal representative shall set forth the following information:
(i) the name, residence and date of death of the decedent; whether he died testate or intestate; and the date letters were granted to the petitioner;
(ii) that the petitioner is not otherwise authorized by statute to sell; or is not authorized to do so by the will; or that it is desirable that the sale have the effect of a judicial sale, stating the reasons;
(iii) the total value of the property set forth in the inventory and the date it was filed;
(iv) the value at which the real property to be sold was included in the inventory;
(v) if bond was entered, the name of the surety and the amount of such bond;
(vi) the names and relationships of all parties in interest; whether or not they are sui juris, and, if not, the names of their fiduciaries (if any) and a statement of how they were appointed; and whether or not they join in the petition or consent to the sale;
(vii) the street address or other adequate description of the property to be sold, a brief description of the building erected upon the property, the current occupant of the property and the current tax assessment;
(viii) a list of all liens of record known to the petitioner; and (ix) sufficient facts to enable the Court to determine that the sale is desirable for the proper administration and distribution of the estate.
(b) A petition by a trustee shall set forth the following information:
(i) how title was acquired, stating the date and place of probate of the will or recording of the deed to the trustee;
(ii) a recital of the relevant provisions of the will or deed of trust pertaining to the real property to be sold and a recital of the history of the trust;
(iii) that the petitioner is not otherwise authorized to sell by statue; or is not authorized by the deed of trust; or that it is desirable that the sale have the effect of a judicial sale, stating the reasons;
(iv) the total approximate current value of property held in trust; and
(v) the same information as is required under subparagraphs (a)(v) through (ix) in a petition by a personal representative.
(c) A petition by a guardian of a minor's estate shall set forth the following information:
(i) the circumstances of the petitioner's appointment;
(ii) the name, age and residence of the minor; the names of the minor's parents and whether either of them is deceased;
(iii) how title was acquired;
(iv) if an inventory was filed, the total value of the property set forth therein and the date it was filed, and the value at which the real property to be sold was included therein;
(v) the total approximate current value of property held by the petitioner;
(vi) a recital of the provisions of the will or deed of trust relating to the real property to be sold;
(vii) that the petitioner is not authorized to sell the real property; or that it is desirable that the sale have the effect of a judicial sale, stating the reasons;
(viii) the nature and extent of the interest of the minor, of the petitioner and of third persons in the real property;
(ix) sufficient information to enable the Court to find that the proposed sale is in the best interest of the minor; and
(x) the same information as is required under subparagraphs (a)(v) through (ix) in a petition by a personal representative.
(d) A petition by a guardian of an incapacitated person's estate shall set forth the following information:
(i) the date of the petitioner's appointment and the name of the Hearing Judge;
(ii) the domicile of the incapacitated person and the institution, if any, at which the incapacitated person is maintained;
(iii) how title was acquired;
(iv) the total value of the property set forth in the inventory and the date it was filed;
(v) the value at which the real property to be sold was included in the inventory;
(vi) the total approximate current value of property held by the petitioner;
(vii) a statement of all claims of the incapacitated person's creditors known to the petitioner;
(viii) sufficient information to enable the Court to find that the proposed sale is in the best interest of the incapacitated person;
(ix) if the property to be sold is the incapacitated person's former residence, an averment that he is not likely to return to live in it; and
(x) the same information as is required under subparagraphs (a)(v) through (ix) in a petition by a personal representative.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) a copy of the will, deed of trust or decree (or other instrument) by which the petitioner was appointed; and
(b) consents to the sale 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 sale shall receive written notice of the intended presentation of the petition to the Court.
(4) Decree. A proposed decree providing that the real property be offered for public sale and that a return of sale be filed with the Court shall be attached to the face of the petition.
(5) Public Sale. Notice. Return of Sale. Confirmation.
(a) Notice. After the allowance of a petition for public sale, notice in approved form shall be given in the manner provided by Rule 5.1.B.
(b) Return of Sale. The petitioner shall file with the Court a return of public sale in the form provided by Rule 5.4.A.(2).
(c) Confirmation. A proposed decree confirming the sale and, where appropriate, fixing the amount of security to be entered by the petitioner shall be attached to the face of the return sale.
Rule 12.10.A. Petitions for Leave to Sell or Exchange Real Property at Private Sale under Sections 3353, 5155, 5521(23) and 7133(16) of the Probate Estates and Fiduciaries Code. [Rule *130.1]
(1) Contents of Petition. A petition under this Rule shall set forth, as nearly as may be practicable, the same information as is required under Rule 12.9.A. with regard to a petition to sell real property at public sale and, in addition, it shall set forth the following information:
(a) the name and address of the purchaser and a brief recital of the terms of sale; and
(b) the estimated net proceeds which the petitioner will receive at the time of settlement.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) a copy of the will, deed of trust or decree (or other instrument) by which the petitioner was appointed;
(b) consents to the sale 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 given to them;
(c) a copy of the agreement of sale;
(d) a schedule setting forth the computation of the estimated net proceeds which the petitioner will receive at the time of settlement, including an itemized list of estimated closing expenses; and
(e) the affidavits of two real estate appraisers or brokers not of the same office, setting forth the information required under Sup. Ct. O.C. Rule 12.10(b).
(3) Notice. Any party in interest who does not join in the petition or consent to the sale shall receive written notice of the intended presentation of the petition to the Court.
(4) Decree. A proposed decree approving the sale and, where appropriate, fixing the amount of security to be entered by the petitioner shall be attached to the face of the petition.
Rule 12.10.B. Petitions to Fix or Waive Additional Security under Sections 3351 and 7141 of the Probate, Estate and Fiduciaries Code. [Rule *130.2]
(1) Contents of Petition.
(a) In a sale, whether public or private, of real property without benefit of an order of Court directing or authorizing such sale, where a personal representative or trustee was required to give a bond, a petition by a personal representative or trustee shall set forth the following information:
(i) the name, residence and date of death of the decedent; whether the decedent died testate or intestate; and the date letters were granted to the petitioner;
(ii) the total value of all assets set forth in the inventory;
(iii) the value at which the real property to be sold was included in the inventory;
(iv) if bond was entered, the name of the surety and the amount of such bond;
(v) the street address or other adequate description of the property to be sold; a brief description of the building erected on the property; the current occupant of the property; and the current tax assessment;
(vi) the name and address of the purchaser and a brief recital of the terms of the sale;
(vii) the estimated net proceeds which petitioner will receive at the time of settlement;
(viii) a list of all liens of record known to petitioner;
(ix) the names and relationships of all parties in interest; whether or not they are sui juris, and, if not, the names of their fiduciaries and a statement of how they were appointed; and whether or not they join in the petition or consent to the sale; and
(x) sufficient facts to enable the Court to determine that the sale is desirable for the proper administration and distribution of the estate.
(b) A petition by a trustee shall set forth the following information:
(i) how title was acquired;
(ii) a recital of the relevant provisions of the will or deed of trust pertaining to the real property to be sold;
(iii) the estimated value of all assets currently held in trust; and
(iv) the same information required under paragraph (a) (iv) through (x) in a petition by a personal representative.
(2) Notice. Any party in interest who does not join in the petition or consent to the sale shall receive written notice of the terms of sale and of the intended presentation of the petition to the Court.
(3) Exhibits. Attached to the petition shall be the following:
(a) a copy of the will or deed of trust;
(b) a copy of the agreement of sale;
(c) a schedule setting forth the computation of the estimated net proceeds which petitioner will receive at the time of settlement, including an itemized list of estimated closing expenses; and
(d) consents to the sale signed by those parties in interest who do not join in the petition, and the names and addresses of those parties who do not consent and a copy of the notice which has been given to them.
(4) Appraisals. No appraisal shall be required where counsel for petitioner certifies that:
(a) in counsel's opinion the estate is solvent; and
(b) counsel knows of no objection to the sale by a party in interest. In the absence of such certification, an appraisal by a qualified appraiser shall be presented with the petition. The Court may order the appointment of an appraiser in any case where it deems it appropriate or necessary for the disposition of the petition.
(5) Decree. A proposed decree shall be attached to the face of the petition. In the decree the Court shall fix the amount of security which the petitioner shall be required to enter, or excuse the petitioner from entering additional security. The corporate surety shall be the same as on the original bond, unless the Court directs otherwise.
Probate Section Comments:
1. Petition by a Personal Representative or a Trustee: When a personal representative is required to petition the Court to have additional security fixed or waived under Rule 12.10.B., the sale must meet with Court approval; otherwise personal representatives and trustees have statutory authority to sell real property without Court approval unless a specific devisee of the real property refused to join in the sale, the personal representative or trustee wishes to bid on the property, or the governing instrument denies the power to sell. See Probate, Estates and Fiduciaries Code Sections 3351, 3353, 3356 and 7141.
2. Petition by a Guardian of a Minor's Estate: A guardian of a minor's estate may be appointed by order of Court, by will in accordance with Section 2519(b) of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 2519(b)), or by instrument of conveyance in accordance with Section 5115 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5115). A Court appointed guardian does not have the power to sell real property without Court approval. See Section 5155 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5155). A will or instrument of conveyance appointing a guardian may give the guardian power to sell without Court approval. See Section 5146(a) of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5146(a)).
3. Petition by a Guardian of an Incapacitated Person's Estate: A guardian of an incapacitated person's estate does not have the power to sell real estate without Court approval.
4. With respect to petitions to sell real property under the Inalienable Property Act (Section 8301 et. seq. of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.), see Rules 12.12.A. to 12.12.H.
5. The procedure and the information required for a petition for the private sale of real property to pay debts of a decedent shall conform, as nearly as practicable, to the procedure and information required of a petition presented under Rule 12.10.A.
Rule 12.11.A. Petition for Leave to Mortgage or Lease Real Property under Sections 3353, 5155, 5521(23) and 7133(16) of the Probate, Estates and Fiduciaries Code. [Rule *131.1]
(1) Contents of Petition. A petition by a fiduciary under this Rule shall set forth, as nearly as may be practicable, the same information as is required under Rule 12.9.A. with regard to a petition to sell real property at public sale by the same fiduciary; and, in addition, it shall set forth the name of the proposed mortgagee or lessee, the amount and terms of the proposed mortgage loan or lease and sufficient facts to enable the Court to determine whether the proposed mortgage or lease should be approved.
(2) Exhibits. The following exhibits shall be attached to the petition:
(a) a copy of the will, deed of trust, or decree (or other instrument) by which the petitioner was appointed;
(b) consents to the mortgage or lease 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 given to them; and
(c) a statement by the proposed mortgagee agreeing to grant the mortgage loan.
(3) Notice. Any party in interest who does not join in the petition or consent to the mortgage or lease shall receive written notice of the intended presentation of the petition to the Court.
(4) Decree. A decree in approved form shall be attached to the face of the petition approving the mortgage or lease and, where appropriate, fixing the amount of security to be entered by the petitioner.
Rule 12.12.A. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq). Public Sale. Contents of Petition. Additional Requirements. [Rule *132.1]
(1) Trustee. A petition to sell real property at public sale, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S.§ 8301 et seq.) shall also set forth in separate paragraphs:
(a) how title was acquired, stating the date and place of probate of the will or recording of the deed;
(b) a full description of the real property, its improvements, by whom it is occupied, its rental value, the current tax assessment, and the liens and charges to which it is subject;
(c) the interest of the petitioner, if a fiduciary, how and when such fiduciary was appointed; if other than a fiduciary, the name of the fiduciary, if any, and how and when such fiduciary was appointed;
(d) a recital of the history of the trust, and of the relevant provisions of the will or deed pertaining to the real property to be sold; the names of all parties and the nature and extent of their interests, stating which, if any, are minors or incapacitated persons, and giving the names and record of appointment of their guardians, if any; and the names of the next of kin and the age of any minors;
(e) the limitations or defeasibility from which title is to be freed, following as closely as possible the language of Section 8301 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301); and that the purpose of the proceeding is to obtain a decree stating that the title transferred to the purchaser shall be indefeasible by any person ascertained or unascertained, or by any class of persons mentioned in the petition or decree having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the Court;
(f) sufficient facts to enable the Court to determine whether the proposed sale will be to the interest and advantage of the parties, and whether the said sale may be made without prejudice to any trust, charity, or purpose for which the real property is held, and without the violation of any law which may confer an immunity or exemption from sale or alienation; and
(g) the names of any parties who do not voluntarily appear.
(2) Guardian. A petition by a guardian to sell real property at public sale, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.), shall also set forth in separate paragraphs:
(a) that the petitioner was appointed guardian of the estate of the minor, stating the method, date and record of appointment; or, if the estate of the minor consists of an interest in real property of a value not exceeding the statutory limitation provided in Sections 5101 and 5102 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. §§ 5101 and 5102), that the petitioner is the natural guardian, or the person by whom the minor is maintained, stating the relationship of the petitioner to the minor;
(b) the interest of the minor and a full description of the real property proposed to be sold; its improvements; by whom it is occupied; its rental value; the current tax assessment; and the liens and charges to which it is subject;
(c) whether title was acquired by will, descent or deed, the date of decedent's death, the date and place of probate of the will or recording of the deed with respect to the real property proposed to be sold; and if the interest of the minor is partial, the names of the other parties, the nature of their interest, that they desire the sale to be made, and are willing to join in the deed;
(d) the age of the minor; the names of his or her next of kin; and the notice given them of the presentation of this petition; and
(e) sufficient facts to enable the Court to determine that it would be in the interest of such minor that the real property be sold.
Rule 12.12.B. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S.§ 8301 et. seq.). Public Sale. Exhibits. [Rule *132.2]
The following exhibits shall be attached to a petition by a fiduciary to sell real property at public sale, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.):
(1) a copy of the will, deed, or decree by which the fiduciary was appointed; and
(2) consents to the sale signed by those parties in interest who consent thereto, and the notice which has been given to those parties who do not consent, or voluntarily appear as petitioners or respondents; if all parties having an interest do not voluntarily appear as petitioners or respondents, a citation will be granted, directed to all parties who have not appeared, as provided by Section 8304 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8304).
Rule 12.12.C. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.). Public Sale. Notice. Confirmation. Security. [Rule *132.3]
The practice and procedure with respect to notice, confirmation, and the entry of security shall conform to the appropriate provisions of Rule 5.1.B. governing notice.
Rule 12.12.D. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.). Private Sale. Contents of Petition. Additional Requirements. [Rule *132.4]
(1) Trustee. A petition by a trustee to sell real property at private sale, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.), shall also set forth in separate paragraphs:
(a) the information required under Rule 12.12.A(1);
(b) the name and address of the proposed purchaser, the price to be paid; the terms of the proposed sale; and that the price offered is better than can be obtained at a public sale; and
(c) when the proposed sale is of an undivided interest, that the other parties in interest desire the sale to be made and are willing to join in the deed.
(2) Guardian. A petition by a guardian to sell real property at private sale, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.), shall also set forth in separate paragraphs:
(a) the information required under Rule 12.12.A.(2); and
(b) the name and address of the proposed purchaser, the price to be paid, the terms of the proposed sale, and that the price offered is better than can be obtained at a public sale.
Rule 12.12.E. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.). Private Sale. Exhibits. [Rule *132.5]
The following exhibits shall be attached to a petition by a fiduciary to sell real property at private sale, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.):
(1) a copy of the will, deed, or decree by which the fiduciary was appointed;
(2) a copy of the agreement of sale;
(3) affidavits by two real estate appraisers setting forth the information required by Rule 12.10.A.(2); and
(4) consents to the sale signed by those parties in interest who consent thereto and the notice which has been given to those parties who do not consent, or voluntarily appear as petitioners or respondents; if all parties having an interest do not voluntarily appear as petitioners or respondents, a citation will be granted, directed to all parties who have not appeared, as provided by Section 8304 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8304).
Rule 12.12.F. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.). Private Sale. Security. [Rule *132.6]
The Court, in the decree approving or confirming the sale, will fix the amount of security which the fiduciary shall be required to enter.
Rule 12.12.G. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.). Mortgage. [Rule *132.7]
(1) Contents of Petition. A petition by a fiduciary to mortgage real property, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.), shall conform as closely as practicable to the requirements of these Rules with regard to a petition to sell real property at public sale by the same fiduciary; shall set forth the amount and terms of the proposed loan; and shall set forth sufficient facts to enable the Court to determine whether the proposed loan should be approved.
(2) Exhibits. Security. The exhibits required by Rule 12.11.A.(2) shall be attached to the petition, with the proviso regarding consents, that if all parties having an interest do not voluntarily appear as petitioners or respondents, a citation will be granted, directed to all parties who have not appeared, as provided by Section 8304 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8304). Security shall be fixed as provided by Rule 12.11.A.(4).
Rule 12.12.H. Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et. seq.). Real Estate or Fiduciaries in Other Counties. [Rule *132.8]
(1) Fiduciaries whose appointments originated in this county shall obtain leave of this Court to petition the Court of another county of this Commonwealth, under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.), to sell or mortgage real property located in that county. Such leave may be obtained by petition to this Court setting forth briefly the substantial averments of a petition for the sale or mortgage of real property.
(2) Fiduciaries whose appointments originated in other counties of this Commonwealth shall obtain leave of the Court of their appointment to petition this Court under Chapter 83 of the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 8301 et seq.) to sell or mortgage real property located in this county. The petition to this Court shall comply with the provisions of these Rules with regard to the sale or mortgage of real property, and shall include, as exhibits, copies of the petition and of the decree of the court of origin.
Rule 12.16.A. Petition for Review. [Rule *135]
Every petition for review of an adjudication or decree shall contain a certification that the Auditing Judge or the Judge who entered the decree to be reviewed has been previously informed of the intention to file the petition for review.
DISTRIBUTION--SPECIAL SITUATIONS Rule 13.3.A. Content of Report. [Rule *69.5]
The report required by Sup. Ct. O.C. Rule 13.3 shall be submitted at the audit, and shall include, substantially, the following:
(1) Unknown Distributee. If it appears that the identity or whereabouts of a distributee is unknown, or there are no known heirs, the fiduciary shall submit a written report at the audit, verified by affidavit of the fiduciary or counsel for the fiduciary, in which shall be set forth:
(a) the nature of the investigation made to locate the heirs of the decedent, in complete detail; and
(b) in cases of intestacy, or where there are no known heirs, a family tree, as complete as possible under the circumstances, supported by such documentary evidence as the fiduciary has been able to obtain.
The term ''investigation'', as used in this Rule, shall include inquiry of or as to as many of the following as may be pertinent and feasible: residents of the household in which the decedent resided; friends and neighbors; labor union membership; places of employment; social, fraternal, or beneficial organizations; insurance records; church membership; school records; social security, Veterans' Administration, or military service records; naturalization records, if not native born; and such other sources of information as the circumstances may suggest.
(2) Non-Resident Distributee. If the fiduciary requests the Court to withhold distribution to a non-resident distributee, he shall submit a written report at the audit, verified by the affidavit of the fiduciary or counsel for the fiduciary, in which shall be set forth:
(a) the relationship of the distributee to the decedent, and any available information concerning the distributee's present whereabouts;
(b) in cases of intestacy, a family tree, as complete as possible under the circumstances, supported by such documentary evidence as the fiduciary has been able to obtain; and
(c) the reasons for the request that distribution be withheld, and the suggested manner of withholding.
INCAPACITATED PERSONS' ESTATES Rule 14.2.A. Petitions Under Chapter 55 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5501 et seq.)
(1) Contents. Any petition filed under Chapter 55 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5501 et seq.) shall be in plain language and shall include the following (in addition to those paragraphs unique to the relief requested by the petition):
(a) The name, residence and post office address of the petitioner and the relationship, if any, of the petitioner to the alleged incapacitated person;
(b) The name, date of birth, social security number, residence, post office address and occupation, if any, of the alleged incapacitated person;
(c) The names, ages and addresses of the spouse, dependents, parents and presumptive adult heirs of the alleged incapacitated person;
(d) The names and addresses of the persons or institutions providing residential services to the alleged incapacitated person;
(e) The names and addresses of all other service providers;
(f) The names and addresses of the persons or entities whom petitioner asks to be appointed guardian and an averment that all proposed guardians have no interest adverse to the alleged incapacitated person;
(g) The reasons the guardianship is requested;
(h) A description of the functional limitations and of the physical and mental condition of the alleged incapacitated person;
(i) The steps taken to find less restrictive alternatives;
(j) The specific areas of incapacity over which the guardian is requested to be assigned authority;
(k) The qualifications of each proposed guardian and the written consent of each proposed guardian to serve;
(l) Where a guardian of the estate is sought, the gross value of the estate and net income from all sources to the extent known (including but not limited to salary, income or other benefits which the alleged incapacitated person is receiving or entitled to receive);
(m) A copy of the most recent annual report(s), if any has been filed, certified as true and correct by counsel and the date of filing of said report(s);
(n) A statement as to whether the alleged incapacitated person was a member of the United States Armed Forces and whether he or she is currently receiving veterans' benefits;
(o) A statement as to whether the alleged incapacitated person has executed a power of attorney or an advance directive for health care; and
(p) A statement as to whether any other court has ever assumed jurisdiction in any proceeding to determine the capacity of the alleged incapacitated person.
(2) Decrees. The following decrees shall be attached to the face of a petition for adjudication of incapacity:
(a) A preliminary decree awarding a citation directed to the alleged incapacitated person to show cause why he or she should not be adjudged an incapacitated person and a limited or plenary guardian appointed, and providing for a hearing at a time and place to be supplied by the Court. The preliminary decree shall also restate the requirements set forth in Rule 14.2.B.(4), (5) and (6).
(b) A final decree adjudicating incapacity, appointing a limited or plenary guardian of the person and/or estate, directing the filing of an annual report and fixing security, if any.
(3) Presentation of Petitions. All petitions under Chapter 55 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5501 et seq.) shall be filed with the Clerk of the Court in the county in which the alleged incapacitated person resides, or is domiciled, or in which previous matters under this Chapter have been filed by the proposed guardian, the Court appointed guardian or any interested party.
(4) Alleged Incapacitated Persons: Resident/Non-resident.
(a) The Court may determine the incapacity of persons domiciled or residing in the Commonwealth, and appoint guardians of the person and/or estate of the incapacitated person.
(b) The Court may determine the incapacity of persons not domiciled in the Commonwealth, having property in the Commonwealth, and appoint a guardian of the estate of the incapacitated person. The Court shall give preference in its appointment to the foreign guardian of the non-resident incapacitated person, unless such appointment would not be in the best interests of the incapacitated person.
Probate Section Comment: Section 5512.1 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5512.1) elaborates the basis upon which the Court shall make a finding of incapacity. The description and the steps taken to find less restrictive alternatives must include sufficient information to satisfy the requirements of § 5518 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5518). Section 5511 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5511) establishes that the Court may adjudicate an individual incapacitated and appoint a guardian only upon petition and hearing and upon the presentation of clear and convincing evidence.
Rule 14.2.B. Practice and Procedure. In General.
(1) Assignment of Petitions. Petitions for the appointment of guardians of alleged incapacitated persons will be assigned to the Judges of the Court in rotation.
(2) Consent of Proposed Guardian. The written consent of the proposed guardian to act as guardian, containing the information required to be given by a guardian of the estate of a minor, under Rule 12.5.B.(2), shall be attached to the petition.
(3) Hearing Judge. The Judge to whom a petition is assigned will be designated ''Hearing Judge.'' Generally, all matters pertaining to the administration of the incapacitated person's estate will be referred to the Hearing Judge.
(4) Service on Alleged Incapacitated Person and Notice to Interested Parties.
(a) Personal service on the alleged incapacitated person shall be made by petitioner, or petitioner's representative, no less than twenty (20) days before the hearing. At the time of service, the petition and citation shall be explained to the maximum extent possible in language the alleged incapacitated person will be most likely to understand and the petition and the citation shall be left with him or her. The form of notice provided to the alleged incapacitated person shall be in large type and simple language, indicate the purpose and seriousness of the proceedings and the rights that could be lost as a result of the proceedings. Such notice shall include:
(i) The date, time and place of hearing;
(ii) An explanation of all rights of the alleged incapacitated person (including the right to counsel, to have an independent evaluation, to have the cost of counsel and of such independent evaluation reimbursed by the Commonwealth if the alleged incapacitated person is unable to pay); and
(iii) A statement that if the alleged incapacitated person does not attend the hearing or does not reply to the petition, the Court may assume that there is no objection to the petition and grant the requested relief.
(b) At least twenty (20) days before the hearing, notice consisting of copies of the petition and citation shall be sent by petitioner by certified mail to all persons who are sui juris and entitled to share in the estate of the alleged incapacitated person if he or she died intestate at that time. If there are no known intestate heirs, notice shall be given to the Attorney General at the Eastern Regional Office in Philadelphia. Notice shall also be provided to such person or institution providing residential services to the alleged incapacitated person and to such other parties as the Court may direct, including other service providers.
(c) The petitioner must notify the Court at least seven (7) days prior to the hearing if counsel has not been retained by or on behalf of the alleged incapacitated person.
(5) Proof of Service and of Notice.
(a) The following shall be submitted at a hearing for determination of incapacity:
(i) An affidavit of service of the petition and citation on the alleged incapacitated person, attached to or endorsed upon the original citation, reciting that the petition and citation were explained to the maximum extent possible in language likely to be understood by the alleged incapacitated person and that a copy of each was left with him or her; and
(ii) An affidavit reciting the manner of giving notice of the hearing and identifying those persons to whom such notice was given as required in Rule 14.2.B.(4).
(b) For all other petitions, proof of service and of notice shall be in accordance with Rule 1.2.A. or as the Court shall otherwise direct.
(6) Attendance at Hearing. The petitioner and the alleged incapacitated person shall be present at the hearing unless:
(a) The Court is satisfied, upon the deposition or testimony of or sworn statement by a physician or licensed psychologist, that the physical or mental condition of the alleged incapacitated person would be harmed by his or her presence; or
(b) It is impossible for the alleged incapacitated person to be present because of his or her absence from the Commonwealth, in which case it shall not be necessary for the alleged incapacitated person to be represented by a guardian ad litem.
The Court may, in its discretion, hold a closed hearing or a hearing without a jury, subject to the right of the alleged incapacitated person or his or her counsel to demand an open hearing, or a hearing with a jury. The hearing may be held at such location as the Court shall direct, including the alleged incapacitated person's residence.
(7) Emergency Proceedings.
(a) Appointment: The Court, upon petition and hearing at which clear and convincing evidence is shown, may appoint an emergency guardian or guardians of the person and the estate of an alleged incapacitated person, when it appears that the person lacks capacity, is in need of a guardian and a failure to make such appointment would result in irreparable harm to the person or estate of the alleged incapacitated person. The Court may also appoint an emergency guardian of the person pursuant to Chapter 55 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5501 et seq., including § 5513) for an alleged incapacitated person who is present in this Commonwealth but is domiciled outside the Commonwealth, regardless of whether he or she has property in this Commonwealth.
(b) Applicability of Other Provisions: The provisions of § 5511 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5511), including those relating to counsel, shall be applicable to such proceedings, except when the Court has found such provisions to be impractical.
(c) Duration of Emergency Guardianship:
(i) Person: An emergency order appointing an emergency guardian of the person may be in effect for up to seventy-two (72) hours. If the emergency continues, then, upon application to the Hearing Judge, the emergency order may be extended for no more than twenty (20) days from the expiration of the initial emergency order. After the expiration of the emergency order or any extension, a full guardianship proceeding must be instituted pursuant to § 5511 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5511).
(ii) Estate: An emergency order appointing an emergency guardian of the estate shall not exceed thirty (30) days. After thirty (30) days, a full guardianship proceeding must be initiated pursuant to § 5511 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5511).
(d) Electronic Filing: By leave of Court, a copy of the petition and preliminary decree may be transmitted electronically to the Hearing Judge, e.g., by facsimile transmission, with the originals to be delivered to the Court on the next business day.
(8) Evidence of Incapacity.
(a) Testimony: The petitioner must present testimony, whether in person or by deposition, from individuals qualified by training and experience in evaluating incapacities of the type alleged by petitioner, which establishes the nature and extent of the alleged incapacities and disabilities and the person's mental, emotional and physical condition, adaptive behavior and social skills.
(b) Independent Evaluation: If, pursuant to § 5511(d) of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5511(d)), the Hearing Judge upon his or her own motion or on petition by the alleged incapacitated person for cause shown, shall order an independent evaluation to meet the requirements of § 5518 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5518): (1) the evaluator shall file a report of findings with the Hearing Judge before the hearing and shall send a copy thereof to each counsel of record and to such other interested parties or persons as the Court may direct; (2) the Hearing Judge shall determine the charges for the independent evaluation and the persons responsible for the payment and shall give due consideration to any evaluator nominated by the alleged incapacitated person.
(9) Filing of An Inventory. Within three months of the adjudication of incapacity, every guardian of the estate of an incapacitated person shall file an inventory with the Clerk of the Court in accordance with the provisions of § 5521(b) of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5521(b)) upon forms supplied by the Clerk of the Court.
(10) Filing of Annual Reports. Within twelve (12) months of a guardian's appointment, and annually thereafter, the guardian of an incapacitated person shall file a report in accordance with § 5521(c)(1) of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5521(c)(1)) with the Clerk of the Court.
(11) Testamentary Writings. A copy of all testamentary writings of the incapacitated person found by the guardian, or in the possession of any other person, certified to be true and correct, shall be submitted by the guardian or such other person to the Hearing Judge for inspection within thirty (30) days of such guardian's appointment, or when such testamentary writing(s) is subsequently discovered.
(12) Certificates of Appointment. The Clerk, in addition to issuing certified copies of the decree appointing a guardian, will issue a ''Guardian's Certificate'' in accordance with the decree when the security, if any, ordered by the Court has been entered.
Probate Section Comment: See Rule 3.5.B. for the citation procedure and required manner of service. Notwithstanding paragraph (4), a shorter time period for service may be permitted in connection with petitions for the appointment of an emergency guardian. If the alleged incapacitated person is in a hospital, nursing home or other institution, service must be made by an attorney or authorized personnel of the institution (in accordance with Rule 5.2.A.) and notice of the hearing should be given to the director or other authorized official of such facility. If the alleged incapacitated person is a veteran, notice of the hearing must be given to the Veterans' Administration. Although paragraph (8)(a) permits testimony by deposition, such evidence may not necessarily be considered adequate to establish incapacity. In relying on such evidence, counsel takes the risk that the petition will be denied or that the hearing will be continued so that a witness may be produced to give ''live'' testimony.
Note: Pursuant to the Pennsylvania Mental Health Procedures Act, § 109, the Court is required within seven days of finding an individual incapacitated to file a ''Notification of Mental Health Commitment'' form with the Pennsylvania State Police.
Rule 14.2.C. Practice and Procedure. Small Estates.
If at a hearing the incapacity is established, and it appears that the gross estate does not exceed the statutory limitation, the Court may award the entire estate to the person or institution maintaining the incapacitated person, or make such order as may be appropriate under the circumstances. In such case, a decree in approved form, in lieu of the final decree appointing a guardian, shall be attached to the face of the petition.
Probate Section Comment: Sections 5101 and 5505 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5101 and § 5505) prescribe the statutory limitation for small estates.
Rule 14.2.D. Practice and Procedure. Special Petitions.
(1) Allowances.
(a) In General: Expenditures for the maintenance or support of an incapacitated person or for a dependent of the incapacitated person, or for payment of counsel fees, shall be governed by the appropriate provisions of Rule 12.5.E.(1) and (3); but, otherwise, as hereinafter provided.
(b) Presentation of Petition and Decrees: A petition for distribution from the incapacitated person's estate, during incapacity, shall be filed with the Clerk of the Court by the guardian or any interested party. A final decree shall be attached to the face of the petition. When the petitioner is not a guardian, a preliminary decree containing a provision for the time and place for hearing to be fixed by the Court shall also be attached to the face of the petition. Notice shall be given to the guardian and to such other parties as the Court may direct.
(c) Additional Contents of Petition: In addition to the provisions set forth in Rule 14.2.A.(1), the petition shall also set forth:
(i) The name of the guardian, the date of his or her or appointment, the nature of the guardianship of the estate or person (limited or plenary) and the name of the Hearing Judge;
(ii) If the petitioner is not a guardian, his or her relationship to the incapacitated person, and, if not related, the nature of his or her interest;
(iii) A statement of all previous distributions allowed by the Court since the date of the last Court approved accounting, if any;
(iv) An itemized statement of all claims of the incapacitated person's creditors known to petitioner;
(v) A statement of the requested distribution and the reasons therefor; and
(vi) A prayer for the distribution requested. If the allowance requested will involve a matter which will require annual petitions for substantially similar relief, the petitioner may request the Court to make the grant of the allowance applicable to more than one (1) year, but not to exceed three (3) years, unless otherwise permitted by the Court.
(d) Restrictions Governing Allowance:
(i) Except in cases of extreme emergency, requests for allowances will not be approved prior to the filing of the inventory or the last required annual report, as the case may be.
(ii) If any portion of the incapacitated person's estate is received from the United States Veterans' Administration or its successor, or any agency of the Commonwealth, notice of the request for allowance shall be given to such agency.
(2) Sales.
(a) Real Property: A petition to sell real property shall comply with the appropriate provisions of the rules governing sale under Rule 12.12.A, as far as practicable.
(b) Personal Property: The Court shall be asked to approve sales of personal property only when the circumstances are unusual or where the nature of the property is such that the incapacitated person may wish to receive it in kind if he or she regains his or her capacity.
(3) Reserve for Funeral. In accordance with § 5537 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5537), the Court may authorize a funeral reserve.
(4) Estate plan. In accordance with § 5536(b) of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5536 (b)), the Court may substitute its judgment for that of the incapacitated person with respect to the incapacitated person's estate planning and other affairs.
(5) Other Petitions. The provisions of Rule 14.2.D. do not preclude the filing of other petitions for special relief. All other petitions shall be filed with the Clerk of the Court by the guardian or any interested party.
Probate Section Comment: Section 5521 of the Pennsylvania Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 5521) gives the guardian authority to sell personal property without court approval. Therefore, for instance, such approval should not be sought for the routine sale of publicly traded securities; however, court approval may be sought for sales of other types of personal property, such as the alleged incapacitated person's personal effects, household furnishings or closely held stocks.
Rule 14.2.E. Practice and Procedure. Modification of Existing Orders and Adjudication of Capacity.
(1) Petition to Modify An Existing Order. A petition to modify an existing order shall include a request for the appropriate modification of the existing order in accordance with the evidence as presented of the incapacitated person's capacity or other change in circumstance.
(2) Petition for Adjudication of Capacity. A petition for adjudication of capacity shall include a request that the incapacitated person be declared no longer incapacitated, that the guardian be directed to file a final account and that such other action as the circumstances may require be approved.
ADOPTIONS Probate Section Comment: In Philadelphia County, exclusive jurisdiction in adoption matters is vested in the Family Court Division of the Court of Common Pleas.
SHORT TITLE Rule 17.1.A. Philadelphia Orphans' Court Division Rules. [Rule *161(b)]
The Local Rules of the Orphans' Court Division of the Court of Common Pleas of Philadelphia County shall be known as the Philadelphia Orphans' Court Division Rules, and shall be cited as Phila. O.C. Div. Rules.
[Pa.B. Doc. No. 99-925. Filed for public inspection June 11, 1999, 9:00 a.m.]
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