[32 Pa.B. 1631]
[Continued from previous Web Page] Local Rule 12.7A. Discharge of Personal Representative Under Section 3531 of Probate, Estates, and Fiduciaries Code.
A petition with account annexed under Section 3531 of Probate, Estates and Fiduciaries Code shall conform to the extent practicable with the requirements of a petition for the settlement of a small estate under Section 3102 of Probate, Estates, and Fiduciaries Code, as set out in Del. Co. O.C.D. Rule 6.11E.
Local Rule 12.9A. Public Sale, Contents of Petition, Additional Requirements.
(1) Personal Representative--A petition by a personal representative to sell real property at public sale, under Section 3353 of the Probate, Estates and Fiduciaries Code shall also set forth in separate paragraphs:
(a) The name, residence and date of death of the decedent, whether the decedent died testate or intestate, and the date of the grant of letters;
(b) That the personal representative is not otherwise authorized to sell by the Code; or is not authorized or is denied the power to do so by the Will, or that it is desirable that the sale have the effect of a judicial sale, stating the reasons;
(c) Whether an inventory and appraisement has been filed, the total value of the property shown therein, and the value at which the real property to be sold was included therein;
(d) If the personal representative entered bond with the Register, the name of the surety and the amount of such bond;
(e) The names and relationships of all parties in interest, a brief description of their respective interests, whether any of them are deceased, minors, or incapacitated persons, and if so, the names and a reference to the record of the appointment of their fiduciaries;
(f) A full description of the real property to be sold, the improvements thereon, by whom and in what capacity it is occupied, its rental value and current tax assessment; and
(g) Sufficient facts to enable the court to determine that the sale is desirable for the proper administration and distribution of the estate.
(2) Trustee--A petition by a trustee to sell real property at public sale, under Section 7133 of the Probate, Estates and Fiduciaries Code shall also set forth in separate paragraphs:
(a) How title was acquired to the property which is the subject of the Petition, including the date and place of probate of the will, or recording of the deed;
(b) A recital of the relevant provisions of the will or deed pertaining to the real property to be sold, and of the relevant history of the trust;
(c) The names and relationships of all parties in interest, a brief description of their respective interests, and whether any of them are deceased, minors, or incapacitated persons, and if so, the names and a reference to the record of the appointment of their fiduciaries;
(d) The improvements on the property, by whom and in what capacity it is occupied, its rental value and current tax assessment;
(e) That the trustee is not otherwise authorized to sell by the Code, or is denied the power by the trust instrument, or that it is advisable that the sale have the effect of a judicial sale, stating the reason; and
(f) Sufficient facts to enable the Court to determine that the proposed sale is for the best interests of the trust.
(3) Guardian--A petition by a guardian of a minor's estate to sell real property at public sale, under Section 5155(1) of the Code shall also set forth in separate paragraphs:
(a) The age of the ward;
(b) The names of the ward's next-of-kin and the notice given them of the presentation of the petition. When there are no known next-of-kin who are sui juris to whom notice may be given, public notice in accordance with Del. Co. O.C.D. Rule 12.9C, must be given and proofs thereof must be attached to the petition as an exhibit;
(c) How title was acquired, stating the date and place of probate of the will or recording of the deed;
(d) A recital of the provisions of the will or deed relating to the real property to be sold;
(e) The nature and extent of the interest of the ward, and of other persons in the real property;
(f) The improvements on the property, by whom and in what capacity it is occupied, its rental value and current tax assessment; and
(g) Sufficient facts to enable the court to determine that the proposed sale will be in the best interest of the ward.
Local Rule 12.9B. Public Sale, Exhibits.
The following exhibits shall be attached to a petition by a personal representative, trustee or guardian, to sell real property at public sale;
(1) a copy of the will, deed, or decree by which the fiduciary was appointed; and
(2) any consents or joinders of parties in interest, and the names and a copy of the notice which has been given to those parties who do not consent or join; and
(3) consent by any mortgagee whose lien would otherwise not be discharged by the sale; and
(4) an affidavit as to value by one real estate appraiser.
Local Rule 12.9C. Notice and Return.
(1) Notice--After the allowance of a petition for public sale of real property, notice of the public sale shall be given:
(a) By advertisement once a week for three consecutive weeks in the Delaware County Legal Journal and in one other newspaper of general circulation in Delaware County in the vicinity of the subject property; and by posting a notice on the premises and three (3) additional notices in the immediate vicinity of the premises to be sold; and
(b) By personal notice or certified mail to all parties in interest of the time and place of the proposed sale at least ten (10) days prior thereto; or
(c) By such other notice as the court may by special order direct.
(2) Return--Returns of public sale of real property for the purpose of an approval or confirmation by the court shall be in the form of an affidavit, which shall set forth:
(a) The information required by Del. Co. O.C.D. Rule 5.4A with the attachment of proofs of publication in accordance with Del. Co. O.C.D. Rule 12.9C(1)(a);
(b) The price obtained;
(c) The name and address of the purchaser and that he was the highest bidder.
Local Rule 12.9D. Security.
On the return day of the sale, the court, in the decree approving or confirming the public sale, will fix the amount of bond or additional security which the personal representative, trustee, or guardian shall be required to enter, or will excuse the fiduciary from entering additional security.
Local Rule 12.10A. Exhibits.
The following exhibits shall be attached to a petition by a personal representative, trustee, or guardian to sell real estate at private sale:
(1) A copy of the will, deed, or decree by which the fiduciary was appointed.
(2) Any consents or joinders of parties in interest, and the names and a copy of the notice which has been given to those parties who do not consent or join.
(3) Consent by any mortgagee whose lien would otherwise not be discharged by the sale, or if not attached, the reason therefore.
(4) A copy of the agreement of sale.
Local Rule 12.10B. Procedure on Day Fixed for Approval.
(1) Private Sale. Whenever on the day fixed for approval of a private sale a person other than the proposed purchaser named in the petition, or more than one such other person, shall appear for the purpose of offering a higher price than that to be paid by the proposed purchaser named in the petition, the following procedure shall be followed unless otherwise directed by the court;
(a) No offer from any proposed purchaser other than the one named in the petition will be considered, unless it is at least ten percent (10%) higher and is payable in cash.
(b) If one or more interested purchasers other than the proposed purchaser named in the petition do appear and state their willingness to offer at least ten percent (10%) more, the court will conduct an auction. The proposed purchaser named in the petition and all other interested purchasers shall have the opportunity to make cash offers at least ten percent (10%) higher than the offer of the original proposed purchaser, until the highest price offered by any interested purchaser shall be determined.
(c) The court will then entertain the highest offer made by an interested purchaser and will enter an appropriate decree.
(2) Options for Private Sale. Subparagraph (1) of this Rule shall apply to the approval of a grant of an option for private sale; however, in addition to the provisions of subparagraph (a) thereof, any other proposed purchaser must also offer a consideration for the option itself which is at least one hundred percent (100%) higher and is payable in cash.
(3) Private Exchange. The procedure in the event another person appears on the day fixed for approval of an exchange, for the purpose of offering a different consideration, shall be as the Court directs by special order.
Local Rule 12.10C. Security.
The court, in the decree approving or confirming the private sale, will fix the amount of bond or additional security which the personal representative, trustee or guardian shall be required to enter, or will excuse the fiduciary from entering bond or additional security.
Local Rule 12.11A. Additional Requirements.
(1) Exhibits--There shall be attached to a petition to mortgage or lease property, where applicable:
(a) A copy of the will, deed or decree by which the fiduciary was appointed;
(b) Consents to the mortgage or release signed by those parties in interest who do not join in the petition, and the names and a copy of the notice which has been given to those parties who do not consent;
(c) A written statement by the proposed mortgagee indicating a commitment to grant the mortgage loan;
(d) an appraisal by a real estate appraiser of the real property on which the proposed mortgage is to be secured;
(2) Security--The amount of the bond or initial security required to be entered, or the waiver thereof, will be determined by the court in its decree approving the proposed mortgage.
Local Rule 14.2A. Testamentary Writings.
All testamentary writings of the incapacitated person found by the guardian or in the possession of any other person shall at the time of the filing of the inventory be submitted by the guardian or such other person to the court for its inspection, together with a photographic type copy to be retained by the judge for his private file.
Committee Comment: Neither the will nor a copy thereof nor any description of its provisions should be permitted to become part of a file available for public inspection. See Widener Estate, 437 Pa. 294 (1970).
Local Rule 14.2B. Allowances from Incapacitated Person's Estates.
(1) Petitions. Petitions for allowances from an incapacitated person's estate or for the payment of counsel fees shall be governed by the appropriate provisions of Del. Co. O.C.D. Rule 12.5C and shall set forth:
(a) The name of the guardian, the date of his appointment; if the petitioner is not the guardian, his relationship to the incapacitated person, and, if not related, the nature of his interest.
(b) A summary of the inventory, the date it was filed, and the nature and present value of the estate.
(c) The address and the occupation, if any, of the incapacitated person.
(d) The names and addresses of the incapacitated person's dependents, if any.
(e) A statement of all claims of the incapacitated person's creditors known to petitioner.
(f) A statement of the requested distribution and the reasons therefor; a statement of all previous distributions allowed by the court.
(2) Notice to Veterans' Administration. If any portion of the incapacitated person's estate is received from the United States Veterans' Administration or its successor, notice of the request for allowance shall be given to this agency.
Local Rule 14.2C. Certification.
In any petition filed pursuant to 20 Pa.C.S. § 5511, counsel for petitioner shall file with the Clerk of Orphans' Court at least seven (7) days prior to the hearing a Certification substantially in compliance with the form set forth in Del. Co. O.C.D. Rule 14.2D that provides the following information to the best of counsel's knowledge, information and belief:
(1) Whether counsel has been retained by or on behalf of the alleged incapacitated person.
(2) Whether the issue of capacity is or is not contested.
(3) Whether the testimony on the issue of capacity shall be presented in one or more of the following manners:
(a) Deposition by written interrogatory;
(b) By videotape deposition;
(c) Live testimony in court.
(4) Whether the issue relating to the choice of guardian is contested.
(5) Whether the alleged incapacitated person will or will not be present at the hearing pursuant to 20 Pa.C.S. § 5511(a) 1 and 2.
Note: Counsel is advised to carefully review the requirements of 20 Pa.C.S. § 5511 in completing the Certification required.
Committee Comment: In uncontested matters the medical or psychological testimony may be provided via verified deposition by written interrogatories. Forms of such written interrogatories approved by the court are available at the Office of the Clerk of Orphans' Court.
Local Rule 14.2D. Compliance.
The requirements of Del Co. O.C.D. Rule 14.2C shall be met by the filing of a Certification substantially in compliance with the following:
CAPTION
CERTIFICATIONThe undersigned, ______ , Counsel for the Petitioner in the above captioned matter, hereby certifies that:
(1) Counsel has/has not been retained by or on behalf of the alleged incapacitated person.
(2) The issue of capacity is/is not contested.
(3) The testimony on the issue of capacity shall be presented in one or more of the following manners; as checked below:
a. ( ) Deposition by written interrogatory;
b. ( ) Videotape deposition;
c. ( ) Live testimony in court.
(4) The issue of the choice of guardian is/is not contested.
(5) It is expected that the alleged incapacitated person will/will not be present at the hearing in compliance with 20 Pa.C.S. § 5511(a) 1 and 2.
I hereby certify that the foregoing statements are true and correct to the best of my knowledge, information and belief.
_________________
Attorney for PetitionerLocal Rule 14.3A. Accounts and Distribution.
The practice and procedure with respect to the filing and audit of accounts, as well as the distribution of the assets comprising the estate, shall conform with the practice and procedure governing the accounts of guardians of minors.
Note: Del. Co. O.C.D. Rules 14.2A through 14.3A were initially adopted effective July 1, 1997 as Rules 14-2-1 through 14-3-1. Their adoption herein reflects only re-designation as Del. Co. O.C.D. Rules 14.2A through 14.3A in keeping with the renumbering of all Del. Co. O.C.D. Rules of the Orphans' Court.
Local Rule 15.1A. Practice and Procedure Generally.
This rule and the succeeding rules are adopted under the option given by Supreme Court Orphans' Court Rule 15.1 to adopt Del. Co. O.C.D. Rules in lieu of the ones otherwise provided by the Supreme Court. In selecting this option, the court is partly motivated by the concern that confusion could occur in attempting to follow rules adopted under an Act of Assembly since replaced by another Act of Assembly. These rules may be modified in a particular case by a special order of this court.
Local Rule 15.1B. Appropriate Proposed Decree.
In all proceedings hereunder, counsel for petitioner shall prepare and present at any hearing, the appropriate proposed decree.
Local Rule 15.1C. Whether Hearing is Private.
All hearings required under the Adoption Act, including relinquishment, termination and adoption proceedings, shall be held privately in the chambers of the hearing judge unless otherwise ordered by the court.
Local Rule 15.1D. Whether Notice to Natural Father.
(1) In agency (as opposed to private) proceedings only, if the mother whose rights are sought to be terminated, or who is voluntarily relinquishing the rights to her child or children shall appear at a hearing in regard to the termination or relinquishment of her rights, or at a hearing to confirm consent under § 2504(a) of the Adoption Act, as amended, and shall state that she knows the identity of the natural father of the child or children, but refuses to identify that person for the court, then the court shall conduct an evidentiary hearing into the reasons why the mother refused to identify the natural father. If, after conducting this evidentiary hearing, the court is satisfied that the reasons for this refusal to identify the natural father are valid, and if the court should further find from this evidentiary hearing that sufficient evidence exists under the law for the termination of the parental rights of that natural father, then the court shall direct that the record of this evidentiary hearing be sealed, and the natural father not be given notice of the adoption hearing, at which time the mother shall then be required to state the name and last known address of the natural father of the child or children.
(2) Valid reason for refusing to identify the natural father shall include, but not be limited to, fear on the part of the mother for her life or physical safety in the event that the natural father is notified of the proceedings; irreparable harm to the child or the natural father or the present family of the natural father, if knowledge of this hearing shall be brought to the attention of the natural father; or a legitimate uncertainty on the part of the mother as to whether or not this person is, in fact, the natural father of the child or children.
(3) In private adoption proceedings only, the following notice provisions shall apply:
(a) If the name and whereabouts of the natural father are known, service shall be valid if mailed to his last known address by certified mail, return receipt requested.
(b) If the name of the natural father is known but no address is known, substituted service shall be valid by advertising once in the Delaware County Legal Journal and once in a newspaper of general circulation, as may be directed by the court.
(c) If no name for the natural father or address is known, the natural mother shall execute an affidavit (to be attached to the termination or confirmation petition or adoption petition) stating either that the identity of the natural father is unknown or that she refuses to identify the natural father.
In the case where identity is unknown, no notice to a putative father shall be required for either a termination or adoption hearing. In addition, the affidavit may contain averments establishing the existence of grounds for involuntary termination under § 2511 of the Adoption Act. The affidavit may be offered into evidence as substantive proof of the statements contained therein without the personal appearance of the affiant.
Local Rule 15.1E. Representation for Child.
Whenever it is appropriate for the appointment of counsel under Section 2313 of the Adoption Act, as amended, the following procedures shall prevail:
(1) It shall be the obligation of the agency (as defined by Section 2102 of the Adoption Act of 1981) or counsel for the adopting parents in a private adoption proceeding, to present the court with a written motion and proposed order for the appointment of counsel to represent a child in an involuntary termination proceeding as required by Section 2313 of the Adoption Act of 1981.
(2) Counsel shall be appointed from the list maintained by the Court Administrator for the appointment of attorneys and guardians ad litem in dependency and abuse cases. The fees to be paid to attorneys so appointed in termination proceedings, shall be the same as those paid in dependency and abuse cases for one day representation but shall not exceed the maximum set forth in the Adoption Act, as amended. Said fee shall be taxed as costs to the adopting parent or parents at the time of filing a petition for adoption. Unless the court otherwise directs, only one attorney and only one fee shall be required for more than one child of the same parent whose rights are being terminated.
Local Rule 15.1F. Consents of Natural Parents.
If both natural parents of the child intended to be adopted have executed consents to the adoption, the same may be admitted into evidence as proof of relinquishment, abandonment and consent to adoption at the time of the final adoption hearing.
Local Rule 15.1G. Conditional Relinquishment.
The hearing judge may, in his discretion, allow a relinquishment by one parent to be conditioned upon relinquishment or termination of the interest of the other parent of the child intended to be adopted.
Local Rule 15.1H. Certificate of Birth.
(1) If available, a certificate of birth from the Bureau of Vital Statistics must be produced and admitted into evidence prior to the signing of a final decree in adoption.
Committee Comment: Section 2534 of the Adoption Act requires attachment of birth certificate as an exhibit if it can be obtained.
(2) If no birth, marriage, divorce or death certificate can be obtained, the reason therefore shall be so stated and efforts made to obtain same shall be stated in the report of intermediary or petition to adopt; and a request made that the court establish a date and place of birth, marriage, divorce or death.
Local Rule 15.1I. Certificate of Health.
At an adoption hearing there shall be offered into evidence a certificate of health signed by a licensed physician, attesting to the present condition of health of the following persons:
(1) Each adoptee;
(2) Any non-related adopting parent.
Local Rule 15.1J. Child Abuse and Police Clearances.
At an adoption hearing there shall be offered into evidence current (within one (1) year of the hearing) child abuse and police clearances on forms provided by the Department of Public Welfare and the State Police for the following persons:
(1) Any adopting parent;
(2) Any person over the age of eighteen (18) who is residing in the home of the adopting parent(s) and adoptee.
Local Rule 15.1K. Exhibits at Adoption Hearings.
All exhibits to be entered into evidence at an adoption hearing, including birth certificates and certificates of health as required herein, and the proposed Final Decree shall be submitted to the court no later than one (1) week prior to the hearing unless otherwise directed by the court.
Local Rule 15.1L. Final Adoption Decree.
Following the entry of a decree of termination, either voluntary or involuntary, or pursuant to a petition to confirm consent, thirty (30) days shall elapse before a final adoption decree is entered.
Local Rule 15.1M. Consent by Parents.
In addition to the requirements of Section 2711(d) of the Adoption Act, as amended, a consent signed by either parent shall contain statements regarding the following:
(1) Date and place of birth of child.
(2) Authorization of Intermediary.
(3) Authorization and release of hospital.
(4) Waiver of notices.
(5) Admission of consent into evidence, if applicable.
Local Rule 15.1N. Birth Outside Commonwealth.
When the child proposed to be adopted has been born outside the Commonwealth of Pennsylvania, notification of the proposed adoption shall be given to the Pennsylvania Department of Public Welfare if required by, and if in conformance with, the Public Welfare Code, Article 7, Sub-Article (d), Act of June 13, 1967 (P. L. 31, No. 21) 62 P. S. § 742 et seq; and a clearance certificate from the Department shall be produced for the court.
Note: Del. Co. O.C.D. Rules 15.1A through 15.1L were initially adopted April 29, 1981; amended September 28, 1982 as Rules 15-1-1 through 15-1-12. Their adoption herein reflects only re-designation as Del. Co. O.C.D. Rules 15.1A through 15.1L in keeping with the renumbering of all Del. Co. O.C.D. Rules.
Local Rule 17.1A. Local Rules.
The rules set forth herein which do not appear in boldface type shall be known as Delaware County Orphans' Court Division Rules and shall be cited as Del. Co. O.C.D. Rules.
[Pa.B. Doc. No. 02-489. Filed for public inspection March 29, 2002, 9:00 a.m.]
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