THE COURTS
Title 255--LOCAL
COURT RULES
ERIE COUNTY
In the Matter of the Revision and Restatement of the Erie County Orphans' Court Rules; Orphans' Court Division
[39 Pa.B. 1478]
[Saturday, March 28, 2009]
Motion And Now, this 17th day of February 2009, comes the Orphans' Court Rules Committee of the Erie County Bar Association, by and through its Chairperson, Raymond A. Pagliari, Esq., and hereby moves this Honorable Court to approve, adopt and promulgate the attached proposed and recommended revisions and amendments to the Local Orphans' Court Rules of the Erie County Court of Common Pleas, Sixth Judicial District, Erie, Pennsylvania.
Respectfully Submitted,
RAYMOND A. PAGLIARI Jr., ESQ.,
Chairperson
Order And Now, this 18 day of February, 2009, upon consideration of the foregoing Motion, it is hereby Ordered, Adjudged and Decreed, that the Local Orphans' Court Rules of the Erie County Court of Common Pleas, Sixth Judicial District, Erie, Pennsylvania are hereby Amended and Revised in accordance with the annexed Motion.
Amended Rules are: Rules 3.4.1(e), 3.4.1(h)(2), 5.1.1, 5.2.1(a), 5.2.1(b), 5.4.1(a), 5.6.1, 6.1.4, 6.1.5, 6.2.2(c), 6.3.1, 6.4.2, 6.4.3, 6.6.1, 6.6.2, 6.9.1, 6.9.3, 6.9.4, 6.10.1(a), 6.10.1(e), 6.10.1(f), 6.10.1(h), 6.11.1, 7.1.2(b), 7.1.2(c), 7.1.3, 7.1.4(c), 7.1.5(c), 10, 10.2.1, 10.2.2, 10.2.3, 10.2.4, 10.2.5, 10.2.6, 12.0.1(a)(6), 12.0.1(b)(3), 12.1.1(c), 12.5.5(e), 12.9.1(a)(6), 12.9.1(b)(4), 12.9.1(c)(6), 12.9.3(a), 12.9.3(b), 12.10.1, 13.3.1 footnote # changed to 3, 14.1.1(a), 14.2.1(c), 14.2.1(d)(1) and 15.5.1.
Deleted Rules are: Rules 5.2.1(c), 5.2.1(d), 6.1.1(a) footnote 3, 10.2.7, 10.2.8, 10.2.9 and 10.2.10.
New Rules are: Rules 5.1.2, 10.1, 10.1.2, 10.1.3, 10.1.4, 10.1.5, 10.2, 10.3, 10.3.1, 10.3.2, 10.3.3, 10.4, 10.4.1, 10.4.2, 10.4.3, 10.5, 10.5.1, 10.5.2, 10.5.3, 10.5.4, 10.6, 10.6.1, 10.6.2, 10.7, 10.7.1, 10.7.2, 10.8, 10.8.1, 10.8.2, 10.8.3, 10.8.4 and Administrative Order.
Petitioner shall take all steps necessary to publish these amendments in accordance with the applicable law. Such amendments shall become effective thirty (30) days after publication in the Pennsylvania Bulletin.
ELIZABETH K. KELLY,
President Judge
TABLE OF CONTENTS
RULE 1 JUDGES--LOCAL RULES 1.2.1 The Business of the Court. 1.2.2 Argument. 1.2.3 Attorneys. 1.2.4 Sureties. Individual--Corporate. 1.2.5 Certificates of Appointments. Fiduciaries. 1.2.6 Individual Fiduciaries. Assets and Investments. 1.2.7 Corporate Fiduciaries. Approval. Security. 1.2.8 Release of Fiduciary and Surety. 1.2.9 Trusts Inter Vivos. 1.2.10 Legal Periodical. 1.2.11 Return Days.
RULE 2 CONSTRUCTION AND APPLICATION OF RULES 2.3.1 Definitions.
RULE 3 PLEADINGS AND PRACTICE 3.2.1 Pleadings. 3.2.2 Disposition of Pleadings. 3.4.1 Form. Additional Requirements. 3.5.1 Service of Copies of Pleadings. 3.6.1 Depositions, Discovery and Production of Documents. 3.6.2 Perpetuation of Testimony. 3.7.1 Pre-trial Conference.
RULE 5 NOTICE 5.1.1 Method of Serving Notice. Public Sale of Real Property. Return of Sale. 5.1.2 Petition for Approval or Confirmation of Public Sale. 5.2.1 Method of Serving Notice. Person under Incapacity With No Fiduciary. 5.2.2 Method of Serving Notice. Presumed Decedents and Unascertained Persons. 5.4.1 Return of Notice. Additional Requirements. 5.4.2 Return of Notice. Return of Public Sale for Approval or Confirmation. 5.6.1 Legatees, Devisees, Beneficiaries of Dispositive Instruments Notice to Named Individuals.
RULE 6 ACCOUNTS AND DISTRIBUTIONS 6.1.1 Accounts. Form. Additional Requirements. 6.1.2 Reporting Requirements for Sales and Purchases Between Estate and Accountant. 6.1.3 Execution and Verification of Account. 6.1.4 Receipts for Disbursements. 6.1.5 Small Estates. 6.2.2 Accounts of Guardians of the Estates of Minors. 6.3.1 Notice to Parties in Interest. 6.4.1 Filing for a Particular Audit. 6.4.2 Date of Audit. Postponement or Adjournment. Method of Audit. 6.4.3 Attendance at Audit not Required. 6.6.1 Advertisement of Accounts, Audit Statements, and Petitions for Adjudication. 6.6.2 Filing. 6.9.1 Audit Statement and Petition for Adjudication. 6.9.2 Unknown or Non-Resident Distributees. Report by Fiduciary. 6.9.3 Contents of Report. 6.9.4 Additional Receipts and Disbursements. 6.10.1 Objections to Account, Audit Statement or Statement of Proposed Distribution. Form, Notice and Time. 6.11.1 The Schedule of Distribution: In General. Real Property. 6.11.2 Determination of Title to Real Property. § 3546 PEF Code.
RULE 7 EXCEPTIONS 7.1.1 Filing of Exceptions. 7.1.2 Finality of Certain Orders, Decrees and Adjudications. 7.1.3 Finality of Other Orders and Decrees. 7.1.4 Effect of Exceptions Upon Decree Nisi. 7.1.5 Exceptions to Orders and Decrees. 7.1.6 Effect of Exceptions on Adjudications, Orders and Decrees. 7.1.7 Other Exceptions.
RULE 8 AUDITORS AND MASTERS 8.1.1 Appointment. 8.1.2 Manner and to Whom Notice is Given. 8.6.1 Notice of Intention to File. Exceptions. 8.7.1 Exceptions Before the Court. 8.8.1 Filing of Security With Clerk. 8.8.2 Compensation of Auditor or Master.
RULE 9 OFFICIAL EXAMINERS 9.1.1 Examiners--Appointment and Ordinary Duties. 9.1.2 Examiners--Special Duties. 9.1.3 Examiners--Compensation.
RULE 10 MATTERS BEFORE THE REGISTER OF WILLS 10.1 Application and Construction of Register of Wills Rules. 10.1.2 Application of Rules. 10.1.3 Construction of Rules. 10.1.4 Filing of Death Certificate--Estates. 10.1.5 Extension of Time Limitation. 10.2 Pleadings and Practice before the Register. 10.2.1 Pleading and Practice. 10.2.2 Jurisdiction of the Register. 10.2.3 Presiding Officer. 10.2.4 Evidence. 10.2.5 Stenographic Record. 10.2.6 Objections to Evidence. 10.3 Discovery Before the Register. 10.3.1 Limitations on Discovery. 10.3.2 Objections to Discovery. 10.3.3 Additional Discovery. 10.4 Caveat Practice and Procedure. 10.4.1 Form of Caveat. 10.4.2 Bond and Form of Bond. 10.4.3 Time for Fixing the Amount of Bond. 10.5 Citation Practice and Procedure. 10.5.1 Request for Citation. 10.5.2 Form of Citation. 10.5.3 Person Responsible for Service of Citation. 10.5.4 Method of Service of Citation. 10.6 Notice. 10.6.1 Distribution of Pennsylvania Orphans' Court Rule 5.6 and Rule. 6.12 Notices. 10.6.2 Manner of Proceeding. 10.7 Conclusion of Hearing and Decree of Register. 10.7.1 Procedure Before the Register Upon Conclusion of the Receipt of Testimony. 10.7.2 Decision of the Register. 10.8 Appeals from Decision of Register. 10.8.1 Right of Appeal. 10.8.2 Procedure for Appeal from Decisions of the Register of Wills. 10.8.3 Decree of Orphans' Court upon Sustaining Appeal. 10.8.4 Decree of Orphans' Court upon Dismissing Appeal.
RULE 12 SPECIAL PETITIONS 12.0.1 Settlement of Small Estates. 12.1.1 Family Exemption. Additional Requirements. 12.5.1 Minor's Estate. Appearance Before the Court. Minor over Fourteen. 12.5.2 Minor's Estate. Restricted Account. 12.5.3 Minor's Estate Not Exceeding Amount Established by PEF Code. 12.5.4 Minor's Estate. Allowance. 12.5.5 Minors and Incapacitated Persons; Settlement, Compromise or Discontinuance. 12.6.1 Appointment of Trustee. Exhibits. 12.6.2 Appointment of Successor Co-Trustee. 12.7.1 Discharge of Personal Representative Section § 3531--PEF Code. 12.9.1 Public Sale. Contents of Petition. Additional Requirements. 12.9.2 Public Sale. Exhibits. 12.9.3 Public Sale of Real Property. Notice. Confirmation. 12.9.4 Public Sale. Security. 12.10.1 Private Sale. Contents of Petition. Additional Requirements. 12.10.2 Private Sale. Exhibits. 12.10.3 Private Sale. Higher Offer. 12.10.4 Private Sale. Security. 12.10.5 Petition to Fix or Waive Additional Security. Personal Representatives. 12.11.1 Mortgage of Real Property. Additional Requirements. 12.12.1 Inalienable Property. 12.12.2 Inalienable Property. Notice. Discretion of Court. 12.12.3 Inalienable Property. Real Estate or Fiduciaries in Other Counties.
RULE 13 DISTRIBUTION--SPECIAL SITUATIONS 13.3.1 Unknown Distributee. Contents of Report.
RULE 14 INCAPACITATED PERSONS 14.1.1 Procedure. 14.2.1 General Practice and Procedure. 14.2.3 Proof of Service. 14.2.4 Emergency Guardianships. 14.2.5 Post Adjudication Duties. 14.2.6 Modification of Guardianship. 14.3.1 Adjudication of Capacity.
RULE 15 ADOPTION 15.1.1 Procedure. 15.4.1 Involuntary Termination of the Parental Rights of a Putative Father Whose Identity Or Whereabouts Cannot be Ascertained. 15.4.2 Petition to Terminate Putative Father's Rights Under § 2503(d) and § 2504(c). 15.5.1 Petition to Confirm Consent to Adoption, including Stepparent adoptions.
ADMINISTRATIVE ORDERS Inspection of Gestational Carrier Files Pg. 62
RULE 1
JUDGES--LOCAL RULES 1.2.1 The Business of the Court.
(a) Motion Court. Unless otherwise ordered by the Court, Motion Court will be held every Monday through Thursday at 9:00 a.m.
(b) Audit List. Accounts shall be audited by the Court anytime after the expiration of the deadline for the filing of objections.
(c) Elimination of Formal Audit Court. There shall be no formal Audit Court hearing.
1.2.2 Argument.
Cases requiring argument are heard at a time fixed by the Court.
1.2.3 Attorneys.
(a) Attorney as Surety. An attorney shall act as surety only by special Order.
(b) Notice to Counsel. Notice by or to attorneys shall be in writing, given to the attorney of record or to an employee of his office, and shall be considered notice to the party represented unless personal notice to the party is required.
(c) Removal of Records. No records shall be removed from the office of the Clerk without a written Order of Court. The Clerk shall report to the Court any failure to comply with the Order.
(d) Appearance. Any attorney representing a party in any proceeding in the Orphans' Court Division shall enter a written appearance with the clerk of the Orphans' Court which shall state the attorney's Pennsylvania Supreme Court Identification Number and an address within the Commonwealth at which papers may be served. Written notice of entry of appearance shall be given forthwith to all parties.
1.2.4 Sureties. Individual--Corporate.
(a) Individual Sureties. Individuals proposed as sureties on bonds of fiduciaries shall file affidavits on the printed forms supplied by the Clerk. The affidavits and bond shall be filed for approval.
(b) Bond Without Surety. The Court may permit a party in interest to execute an individual bond, without surety upon such conditions as the Court requires.
(c) Corporate Sureties. Every surety company duly authorized to do business in Pennsylvania may become surety on any bond or obligation required to be filed in the Orphans' Court; provided, that a currently effective certificate issued to it by the Insurance Department of the Commonwealth of Pennsylvania, evidencing such right, is filed of record.
(d) Duty of fiduciary. It is the duty of the fiduciary to determine that its surety remains responsible and that any bond remains continuously in effect.
1.2.5 Certificates of Appointments. Fiduciaries.
The Clerk shall not issue a certificate of appointment of any fiduciary until the security, if any, ordered by the Court, has been filed, approved and entered.
1.2.6 Individual Fiduciaries. Assets and Investments.
(a) Segregation and Designation of Assets. Assets subject to the jurisdiction of the Court and held by individual fiduciaries shall be kept separate and apart from their individual assets and, except where otherwise permitted by Act of Assembly, shall be held in the name of the fiduciary as such unless they are left in the name of the decedent, the incapacitated person, or the minor.
(b) Small estates. Where the cash assets of an estate are $1,000.00, or less, the fiduciary may deposit such cash in the attorney's trustee account.
(c) Deposit of Uninvested Funds. All funds held uninvested shall be deposited in financial institutions, the deposit of which are insured by a Federal governmental insurance agency, in such manner as to guarantee that all such funds are fully insured, unless otherwise authorized by the Court.
1.2.7 Corporate Fiduciaries. Approval. Security.
(a) In General. Corporations having fiduciary powers and authorized to do business in this Commonwealth, upon petition and pursuant to approval by the Court, may act as fiduciaries in matters pending in the Court; provided that a current certificate evidencing the approval of the State Banking Department, or a certified copy of the certificate from the Federal Reserve Board granting the right to exercise fiduciary powers, is on file with the Clerk.
(b) Period of Approval. The approval granted by the Court under subparagraph (a) of this Rule shall be for a period of one year and thereafter annually, subject; however, to compliance by the corporation with these Rules and with such other rules and regulations governing approval of continuance as the Court will, from time to time, promulgate.
(c) Security. A bond will not be required of an approved corporate fiduciary except when required by statute or for special cause shown.
1.2.8 Release of Fiduciary and Surety.
No fiduciary, bonding company or corporation that files its own bond, or individuals who become sureties on bonds, will be released from their liabilities on the bond until all of the requirements relative to the administration of the estate have been fulfilled. Any surety may be substituted by special Order of Court, but the old surety shall only be released after filing and confirmation of an account, unless excused from doing so by Order of Court.
1.2.9 Trusts Inter Vivos.
The Rules of Court applicable to testamentary trusts shall apply to trusts inter vivos.
1.2.10 Legal Periodical.
The Erie County Legal Journal is the legal periodical for the publication of legal notices in Erie County.
1.2.11 Return Days.
Return days shall be on such day as may be fixed by Order of Court unless otherwise provided by statute or Rule of the Supreme Court.
RULE 2
CONSTRUCTION AND APPLICATION OF RULES 2.3.1 Definitions.
The following words, when used in these Rules, unless the context clearly indicates otherwise, shall have the meanings ascribed to them in this section:
(a) ''Business days'' shall be deemed to include Mondays through Fridays excepting weekdays when the Court House is closed.
(b) ''Common Pleas'' means the Court of Common Pleas of Erie County.
(c) ''Exceptions'' shall mean written objections to a ruling of the Court.
(d) ''Local Rule'' shall mean the Erie County Orphans' Court Rules.
(e) ''Objections'' shall mean written objections to actions of a fiduciary.
(f) ''PEF Code'' shall mean the Pennsylvania Probate, Estates and Fiduciaries Code as found in 20 Pa.C.S.A. § 101, et seq., as shall be amended from time to time.
(g) ''State Rule'' shall mean the Pennsylvania Supreme Court Orphans' Court Rules.
RULE 3
PLEADINGS AND PRACTICE 3.2.1 Pleadings.
The Pleadings in matters before the Orphans' Court are limited to a petition, (including a petition for a citation or for declaratory relief), an answer (which may include new matter), a reply, preliminary objections and an answer to preliminary objections.
(a) New Matter. Any defense which is not a denial of the averments of fact in the petition shall be set forth under the heading ''New Matter.''
(b) Reply. A reply shall be required when New Matter is set forth in the answer.
(c) Preliminary Objections.
(1) Preliminary objections are available to any party, but shall be limited to questions of:
(A) law;
(B) form; or
(C) jurisdiction.
(2) An answer to preliminary objections is limited to the averments of fact concerning jurisdiction set forth in the preliminary objections.
3.2.2 Disposition of Pleadings.
(a) Failure to Answer. If the respondent fails to file a timely answer, all averments of fact within the petition may be deemed by the Court to have been admitted.
(b) Failure to Reply. If the petitioner fails to file a reply to an answer which contains new matter, the averments of fact set forth under the new matter may be deemed admitted and the case will be at issue.
(c) Failure to File an Answer to Preliminary Objections. If the petitioner fails to file an answer to preliminary objections raising questions of jurisdiction, the averments of fact set forth in the preliminary objections may be deemed admitted and the case will be at issue on the preliminary objections.
3.4.1 Form. Additional Requirements.
(a) Typing. Endorsements. Every pleading shall be endorsed with the name, address, Pennsylvania Supreme Court Identification Number and telephone number of counsel and, where practicable, typewritten and double-spaced or printed.
(b) Notice to Plead. Every pleading to which a response is required shall have endorsed thereon, or included therein as the first page thereof, in a conspicuous place, a notice to defend and notice to plead addressed specifically to each party from whom a response is required. The form as required by RCP 1018.1 and RCP 1361 (as said Rules may be in force or hereafter amended) shall be used.
(c) Signature and Verification. All pleadings shall be signed by the attorney and verified by at least one of the parties involved. If this is impracticable, they may be signed and verified by someone familiar with the facts, in which case the reason for the failure of the parties to do so shall be set forth.
(d) Decree. Every proposed decree shall bear the caption of the case and shall be attached to the petition.
(e) Consents. The petition shall recite that all necessary consents are attached or shall set forth the names of the persons who do not consent. In all cases where a consent is not attached, in order to obtain personal jurisdiction over a non-consenting person, a citation shall be issued and served upon the person(s) who do not consent. See Pa. State Orphans Court Rule 3.5.
(f) Paper Size. No paper or other document may be filed in the Register of Wills or Clerk of Orphans' Court Division other than paper 8 1/2" by 11" in size. The only exception to this Rule is the filing of a Will.
(g) Cover Sheet. All motions presented at motion Court shall include a completed motion Court cover sheet in the form required by the Court.
(h) Notice Requirements Prior to Presentation at Motion Court.1 Prior to the presentation to the Court of any motion or petition requesting an immediate Order of Court, other than a Rule to Show Cause which grants no relief, opposing counsel and unrepresented parties must be given notice, subject to the following:
(1) Contents of Notice. The notice must give the date and time when the motion or petition will be presented to the Court and must be accompanied by a copy of the proposed motion and Order.
(2) Certification of Notice. The motion or petition must contain a certificate signed by counsel verifying that proper notice or citation was given under this Rule.
(3) Length of notice required. Except where otherwise required under the Local Rules, the following notice shall be required:
(A) Two (2) full business days' notice must be given by personal delivery or facsimile transmission to each party or their counsel's office, or
(B) Five (5) full business days' notice must be given if notice is by mail.
(4) Failure to give notice. The Court will not enter an Order on a petition or motion without the Certificate of Notice being attached unless a special cause is shown to the Court.
3.5.1 Service of Copies of Pleadings.
(a) Pleadings. A copy of every pleading filed in a case shall be promptly served upon counsel of record for all parties in interest; or, in the absence of counsel, upon the parties themselves.
(b) Briefs. All briefs shall be filed directly with the Clerk of the Court, with copies to the Judge and to all parties of record or their counsel of record.
3.6.1 Depositions, Discovery and Production of Documents.
The procedure relating to depositions, discovery and production of documents shall be governed by special Order of Court.
(a) Leave to take depositions and/or to obtain discovery or production of documents shall be granted only upon petition with good cause shown, except upon agreement of counsel.
(b) In the case of a will contest, no discovery shall be allowed prior to the filing of the contest or caveat.
3.6.2 Perpetuation of Testimony.
The procedure relating to perpetuation of testimony shall be governed by special Order of Court in every case.
3.7.1 Pre-trial Conference.
In any action the Court, of its own motion or on motion of any party, may direct the attorneys for the parties to appear for a conference to consider:
(a) The simplification of issues;
(b) The necessity or desirability of amendments to the pleadings;
(c) The possibility of obtaining admissions or stipulations of fact and documents which will avoid unnecessary proof;
(d) The limitation of the number of expert witnesses; and
(e) Such other matters as may aid in the disposition of the action.
The Court may make an Order reciting the action taken at the conference, the amendments allowed to the pleadings and the agreements made by the parties as to any of the matters considered and limiting the issues for trial to those not disposed of by admissions or agreements of the attorneys. Such Order when entered shall control the subsequent course of the action unless modified at the trial to prevent manifest injustice.
RULE 5
NOTICE 5.1.1 Method of Serving Notice. Public Sale of Real Property.
Notice of the public sale of real property (containing the date, time and place of sale and any other information required by Act of Assembly) shall be given:
(a) By advertisement once a week for three successive weeks in the Erie County Legal Journal and at least in one newspaper of general circulation in Erie County; and
(b) (1) By handbills, one of which shall be posted at a conspicuous place on the real property to be sold, and at least three of which shall be posted in three public places in the vicinity of such real property; and
(2) By personal notice, sent via registered or certified mail, to all parties in interest, of the time and place of the proposed sale, at least ten days prior to the time set for the sale of the property.
5.1.2 Petitions for Approval or Confirmation of Public Sale.
Petitions for approval or confirmation by the Court of the public sale of real property shall be verified and shall be set forth:
(a) The notice as given as provided by this Rule; and
(b) The method of sale; and
(c) The price obtained; and
(d) The name and address of the purchaser and an averment that the purchaser was the highest bidder.
5.2.1 Method of Serving Notice. Person under Incapacity With No Fiduciary.
Whenever notice is to be given to a person who is not sui juris, for whom there is no guardian or trustee, notice shall be given by serving it upon said person, if more than fourteen years of age, and, in all cases, upon
(a) Said person's spouse; or if no spouse, then; next of kin; and an adult with whom said person resides or by whom said person is maintained; or the superintendent or other official of the institution having custody of said person; or
(b) In such manner as the Court, by special Order, may direct.
5.2.2 Method of Serving Notice. Presumed Decedents and Unascertained Persons.
Notice to be given to an absentee, a presumed decedent, or to an unknown or unascertained person, shall be given in the manner provided by Act of Assembly, or, in the absence thereof, in such manner as the Court, by special Order, shall direct.
5.4.1 Return of Notice. Additional Requirements.
(a) Copy of Notice to be Attached. A copy of the notice required to be given by this Rule shall be attached to the petition or return and shall set forth the date the notice was served and method of service.
(b) Personal Service. Return of personal service of notice shall set forth the date, time, place and manner of service, and that a true and correct copy of the notice was handed to the person served.
(c) Registered or Certified Mail. Return of notice by registered or certified mail shall set forth the date and place of mailing and shall include the return receipt, or a photostatic copy thereof. When the person who gives notice by registered or certified mail has personal knowledge or cause to believe that such notice was not received by the person to be notified, he shall so state in the return. When a person resides in a foreign country, a statement that the notice was so mailed to that person at the designated address shall be sufficient unless otherwise ordered.
(d) Publication. Return of notice by publication shall consist of proofs of publication, together with affidavits of publication by the publisher or his agent.
5.4.2 Petitions for Approval or Confirmation of Public Sale.
Petitions for approval or confirmation by the Court of the public sale of real property shall be verified and shall set forth:
(a) The notice as given as provided by Rule 5.4.1 (a);
(b) The price obtained; and
(c) The name and address of the purchaser and an averment that the purchaser was the highest bidder.
5.6.1 Legatees, Devisees and Beneficiaries of Dispositive Instruments. Notice to Named Individuals.
In every proceeding involving a dispositive instrument requiring the filing of a Pennsylvania Inheritance Tax Return (including, inter alia, wills and inter-vivos trusts), the Fiduciary shall within three (3) months after the probate of the Will, or within six (6) months of the happening of the event giving rise to the disposition of any interest in any property, whichever shall first occur, notify all individuals and entities (and the Attorney General, where required) named in said dispositive instrument of the probate or the happening of the event giving rise to the disposition of the interest. The notice shall be submitted by regular U.S. Mail and shall include the following:
(a) In the case of a will2 :
(1) The name of the decedent and date of death;
(2) The date that a Will has been probated and the location;
(3) Notification that the addressee has been named as a legatee or devisee in said will;
(4) The address where a copy of the will can be acquired, if desired.
(b) In the case of a dispositive instrument other than a will:
(1) The name of the creator of the property interest;
(2) The nature of the property interest created;
(3) Notification that the addressee has been named as a beneficiary in said dispositive instrument and a copy of such instrument or a description of the beneficiary's interest under the terms of the instrument;
(4) The address where a copy of the dispositive instrument can be acquired, if desired.
RULE 6
ACCOUNTS AND DISTRIBUTIONS 6.1.1 Accounts. Form. Additional Requirements.
In addition to the requirements of State Rule 6.1, accounts shall meet the following requirements:
(a) Form. Except as herein provided, all accounts shall be in the form approved by the Pennsylvania Supreme Court and known as the Uniform Fiduciary Accounting Standards. Should the account fail to comply with the said accounting standards, the Clerk shall notify the Accountant to immediately comply prior to twenty (20) days before the Audit Day. The corrected account shall be given to all parties in interest. A failure to correct the account shall result in the account being stricken.
(b) Paper. Accounts shall be stated on 8 1/2" by 11" paper, fastened together securely at the top and numbered consecutively at the bottom.
(c) Use of forms provided by Register of Wills. Accounts may continue to be stated in conformity with and on forms provided by the Register of Wills.
6.1.2 Reporting Requirements for Sales and Purchases Between Estate and Accountant.
The account shall specifically describe and indicate the amount:
(a) Of the purchase price for all assets which have been purchased from the estate by the accountant, individually, as a fiduciary or in any other capacity; and
(b) Received for all assets sold to the estate which are owned by the accountant, individually, as a fiduciary or in any other capacity.
6.1.3 Execution and Verification of Account.
Every account filed with the Register or Clerk shall be signed by each accountant, unless special leave of Court is obtained, and shall be verified by at least one accountant. It must be sworn or affirmed:
(a) That the disbursements claimed have been made to the parties entitled thereto;
(b) That the account as stated is true and correct;
(c) That notice has been given to each unpaid creditor, whether or not payment is contested;
(d) In a decedent's estate, that four months have elapsed from the date of the first complete advertisement of the original grant of letters, unless the accountant has been directed by the Court to file an account prior to that time.
6.1.4 Receipts for Disbursements.
(a) Fiduciaries shall not be required to file receipts with the Account, unless a written request is made for a receipt by an objecting party, as provided for in party (c) of this rule.
(b) All receipts or other tangible proof of payment shall be retained by the fiduciary.
(c) In the event an objection to the Account is filed, and upon the written request of the objecting party, a receipt or other tangible proof of payment shall be delivered to the objecting party, and a certificate of delivery shall be filed with the Register of Wills.
6.1.5 Small Estates.
Where an estate does not exceed in value the amount fixed by the PEF Code as a small estate, an account may be filed and confirmed in accordance with the applicable Statutory authority. Petitions for the Settlement of Small Estates must conform to the PEF Code and Local Rule 12.0.1.
6.2.2 Accounts of Guardians of the Estates of Minors.
The guardian of the estate of a minor shall submit to the Court with the audit statement and account:
(a) A statement of the manner and date of appointment of the guardian;
(b) A statement that notice of the audit has been given to all known, unpaid claimants; and
(c) If a final account because the minor has attained majority, is deceased, or has been adjudged an incapacitated person, a Petition for Adjudication/Statement of Proposed Distribution Pursuant to Pa.O.C. Rules 6.9, in the manner set forth in Form OC--04 of the Pennsylvania Orphans' Court Rules.
6.3.1 Notice to Parties in Interest.
No account shall be confirmed unless the accountant has mailed or given to the attorney of record of or to every unpaid claimant who has given written notice of his claim to the accountant and every other person known to the accountant to have or claim an interest in the estate as a creditor, beneficiary, heir, or next of kin, except where a specific legatee has been paid in full, a written copy of the complete account and written notice of the filing thereof in accordance with Local Rule 7.1.2(b).
6.4.1 Filing for a Particular Audit.
Accounts to appear on a particular audit list must be filed in accordance with the audit calendar published by the Clerk's office.
6.4.2 Postponement or Adjournment and Method of Audit.
Audits may be postponed or adjourned at the discretion of the Auditing Judge. Accounts shall be audited by the Auditing Judge, who shall give written notice to the accountant or the accountant's attorney of record of:
(a) Any objections and the hearing dates thereon;
(b) Any conditions precedent to confirmation of the account;
(c) Confirmation; and
(d) Any other matters deemed appropriate by the Court.
6.4.3 Attendance at Audit not Required.
Attendance at the audit by the accountant, by the attorney of record for the accountant or any interested party shall not be required. There shall be no formal Audit Court hearing.
2008 Comment: The change to Local Rule 6.2.2 is necessitated by the 2006 addition of PA Form OC--04, which is now required under Pa.O.C. Rule 6.9. The information required under the former Local Rule 6.2.2(c) and (d) will be included in PA Form OC--04. The change to Local Rule 6.3.1 reflects the broader and more exhaustive language of Pa.O.C. Rule 6.3, which requires notice to known claimants and those having an interest as creditors (whether a claim has been filed or not), and to beneficiaries, heirs, or next of kin (which are broader in terms that the term ''distributee''), even though the accountant may be convinced that they have no valid interest.
6.6.1 Advertisement of Accounts, Audit Statements, and Petition for Adjudication.
The Clerk shall give notice of all accounts, audit statements, and Petitions for Adjudication filed both in the Clerk's Office and in the Office of the Register of Wills and of the time and place of audit by advertising in the legal periodical and in one newspaper of general circulation published in Erie County in accordance with the requirements of the PEF Code Section 745, as may be amended. An account/Petition for Adjudication shall not be audited unless an audit statement or Petition for Adjudication has been filed in timely accordance with the audit calendar published by the Clerk's office. The Clerk's notice shall include the last day on which objections may be filed.
6.6.2 Filing.
Accounts/Petitions for Adjudication received by the Clerk or by the Register and found to violate any provision of these Rules or the State Rules will not be docketed.
6.9.1 Audit Statement and Petition for Adjudication.
(a) The Audit Statement/Petition for Adjudication shall be signed by each Accountant/Petitioner and verified by at least one of them, which Affidavit shall state that a copy of the Statement of Proposed Distribution has been mailed or given to each unpaid creditor and to each distributee or his attorney of record. The Audit Statement/Petition shall include a Statement of Proposed Distribution.
(b) The Audit Statement/Petition for Adjudication shall be filed not later than four (4) weeks prior to the date audits are scheduled by the Clerk to be presented to the Court. A copy of the Audit Statement/Petition for Adjudication shall be served on all parties in interest not later than twenty (20) days prior to the Audit date.
(c) In the event that an Accountant/Petitioner files an account/Petition for Adjudication required by these Rules and thereafter for a two (2) year period fails to file Statement of Proposed Distribution, the Court sua sponte, upon recommendation of the Orphans' Court Auditor and/or upon motion of a party in interest, may dismiss without prejudice, and consider the account withdrawn with 10 days prior notice to the Accountant/Petitioner. The Accountant/Petitioner shall have the right to re-file an account, upon the payment of the filing fee. At the time of re-filing an account, the Accountant/Petitioner shall be required at a minimum to file a Statement of Proposed Distribution.
6.9.2 Unknown or Non-Resident Distributees. Report by Fiduciary.
Whenever it shall appear at the audit of an account that the identity or whereabouts of a distributee is unknown, or that if distribution is made, the beneficiary would not have the actual benefit, use, enjoyment or control of the money or other property to be awarded, and the Court is requested to withhold distribution or to make a provisional award thereof to the accountant, to the Clerk of the Orphans' Court, or to the State Treasury through the Department of Revenue, or in any manner other than to the distributee or the nominee of said distributee, the fiduciary or his counsel shall submit to the Court or auditor, as the case may be, a written report outlining the investigation made and the facts upon which the request is based.
6.9.3 Contents of Report.
The report shall be submitted at the audit and shall include substantially the following:
(a) 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 the fiduciary or the fiduciary's counsel, in which shall be set forth:
(1) The nature of the investigation made to locate the heirs of the decedent, in complete detail; and
(2) 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 to as many of the following as may be pertinent and feasible: residents of the household in which the decedent resided; friends and neighbors; 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.
(b) Non-Resident Distributees. If the fiduciary requests the Court to withhold distribution to a non-resident distributee, he or she shall submit a written report at the audit, verified by the fiduciary or the fiduciary's counsel, in which shall be set forth:
(1) The relationship of the distributee to the decedent, and any available information concerning his present whereabouts;
(2) 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
(3) The reasons for the request that distribution be withheld, and the suggested manner of withholding.
6.9.4 Additional Receipts and Disbursements.
Receipts and disbursements since the date to which the account was stated and to be included in the adjudication, shall be set forth in the Statement of Proposed Distribution or in a separate statement attached thereto.
6.10.1 Objections to Account, Audit Statement or Statement of Proposed Distribution. Form, Notice and Time.
(a) Objections to an account, audit statement or Petition for Adjudication shall be filed in timely fashion in accordance with the deadline set forth in the notice to be given by the Clerk pursuant to Rule 6.6.1.
(b) Each objection shall be specific as to description and amount.
(c) Objections shall be filed with the Clerk of the Orphans' Court.
(d) A copy of the objections shall be served promptly after filing upon the Court by mailing or delivering a copy to the Auditing Judge, the Orphans' Court Auditor, upon counsel for the accountant and counsel for all other parties who have entered appearances.
(e) The Court, for cause shown, may extend the time for filing of objections; provided that a request for extension of time by any person or entity having received notice of the Account/Petition for Adjudication and Statement of Proposed Distribution has been filed or presented prior to the date of the audit.
(f) Failure by a party or entity to whom notice of the account and statement of proposed distribution has been given in accordance with Local Rule 6.9.1 to file timely objection or to request an extension of time in which to file objections shall constitute a waiver of objections.
(g) Upon the filing of Objections, the Court shall schedule a separate hearing date and time for the taking of testimony on the Objections. Notice shall be given by the Orphan Court Auditor.
(h) Accounts/Petitions for Adjudication in proper form and to which no Objections are filed will be audited and confirmed absolutely without court hearing.
6.11.1 Schedule of Distribution: Confirmation of Title to Real Property.
Approval of a schedule of distribution of real estate shall be in the nature of a confirmation of title in the respective distributees.
(a) Separate Awards of Real Property. A schedule of distribution shall set forth separate awards of real property in separate paragraphs.
(b) Description of Real Property. Certification by Counsel. Real property shall be described in the manner appearing in the last deed of record and shall, in addition, include information pertinent to the derivation of decedent's title.
6.11.2 Determination of Title to Real Property. PEF Code Section 3546.
(a) Contents of Petition. A petition under PEF Code Section 3546 for the determination of title shall set forth:
(1) The name of the petitioner and the relationship of the petitioner to the decedent;
(2) The facts on which the claim of the petitioner is based;
(3) Whether the decedent died testate or intestate, and where, when and to whom letters were granted;
(4) A description of real property located within the Commonwealth, and the place, book and page of recording the last deed thereto;
(5) The names and addresses of all known creditors and parties in interest; and
(6) The facts material to a determination of the title.
(b) Exhibits. The following exhibits shall be attached to the petition:
(1) The notice which has been given to creditors, parties in interest; and, if the heirs of the decedent are unknown, a copy of the notice given to the Attorney General; and
(2) A copy of the decedent's Will.
(c) Service. The decree shall be served on all known heirs and creditors of the decedent thirty (30) days prior to final confirmation, which must be at least three (3) months after the date of the decree nisi. The final confirmation date shall be advertised once in the legal publication and once in a newspaper of general circulation, or as the Court shall otherwise direct.
RULE 7
EXCEPTIONS 7.1.1 Filing of Exceptions
Exceptions authorized by State Rule 7.1 and by this Rule shall be filed in the office of the Clerk of the Orphans' Court.
7.1.2 Finality of Certain Orders, Decrees and Adjudications
(a) Orders, Decrees and Adjudications entered in the following matters where no objections have been filed or asserted prior to their entry shall be final and not subject to further exceptions:
(1) An Adjudication approving an account and distribution as set forth on an audit statement or statement of proposed distribution; and
(2) Where not less than ten (10) business days' written notice of intention to present the petition and a copy of the petition and proposed Order or Decree has been given to all parties in interest:
(A) Those approving settlement of a small estate on petition or settlement of an estate, guardianship or trust administration;
(B) Those approving public or private sale of real estate;
(C) Those approving a claim for family exemption;
(D) Those entered upon petition in other matters where such notice has been given.
(b) Where the moving party has given to all parties in interest not less than ten (10) business days' written notice of intention to present a petition specified in this Rule or, in the case of an account, audit statement or statement of proposed distribution, has given notice of the filing and deadline for filing written objections in accordance with the requirements of the Local Rule 6.9.1(b), the failure by a party in interest to assert objections prior to entry of the Order, Decree or Adjudication shall not be authorized or allowed.
(c) All accounts, audit statements, statements of proposed distribution and petitions subject to this Rule to which objections must be asserted in timely fashion or are waived shall be accompanied by a notice to all parties in interest, signed by the moving party or that party's counsel and substantially in the following form:
(CAPTION)
NOTICE AS REQUIRED BY ERIE COUNTY ORPHANS' COURT RULE 7.1.2(c) THE ATTACHED DOCUMENT REQUESTS THAT THE COURT ENTER A FINAL ORDER OR DECREE AND AUTHORIZE THE REQUESTED ACTION WITHOUT FURTHER PROCEEDINGS OR APPEAL UNLESS A PARTY IN INTEREST PROMPTLY ASSERTS OBJECTIONS TO THE REQUESTED RELIEF.
(select one or the other of the following paragraphs) OBJECTIONS TO AN ACCOUNT, AUDIT STATEMENT OR STATEMENT OF PROPOSED DISTRIBUTION MUST BE FILED IN WRITING IN THE OFFICE OF THE ERIE COUNTY CLERK OF THE ORPHANS' COURT, ERIE COUNTY Court HOUSE, 140 WEST 6TH STREET, ERIE, PA 16501 NOT LATER THAN THE DEADLINE FOR FILING OBJECTIONS, WHICH IS ____ .
OR OBJECTIONS TO A PETITION MUST BE ASSERTED EITHER AT THE TIME OF THE PETITION'S PRESENTATION TO THE Court AS SET FORTH IN A NOTICE ACCOMPANYING THE PETITION OR BY A WRITING FILED IN THE OFFICE OF THE ERIE COUNTY REGISTER OF WILLS PRIOR TO THE DATE AND TIME OF INTENDED PRESENTATION.
IF YOU DO NOT OBJECT TO THE ATTACHED DOCUMENT, YOU ARE NOT OBLIGATED TO TAKE ANY ACTION. IF YOU DO OBJECT TO THE DOCUMENT AND/OR THE PROPOSED ORDER OR DECREE, YOU MUST ASSERT YOUR OBJECTIONS PRIOR TO THE APPLICABLE DEADLINE FOR ACTION. IF YOU FILE WRITTEN OBJECTIONS, YOU MUST MAIL A COPY OF SUCH OBJECTIONS TO THE UNDERSIGNED AND TO ALL OTHER PERSONS WHO ARE PARTIES TO THE MATTER, OR THEIR ATTORNEY(S).
IF YOU DO NOT HAVE A LAWYER OR CANNOT AFFORD ONE, THE OFFICE BELOW MAY BE ABLE TO PROVIDE YOU WITH INFORMATION ABOUT AGENCIES THAT MAY OFFER LEGAL SERVICES TO ELIGIBLE PERSONS AT A REDUCED FEE OR NO FEE:
Erie County Lawyer Referral & Information Service
P. O. Box 1792
Erie, PA 16507
Telephone: (814) 459-4411______ _________________
Mailing Date Attorney for7.1.3 Finality of Other Orders and Decrees.
All other Orders and Decrees entered in proceedings shall be final as of the date of filing unless exceptions thereto are taken within twenty (20) days after the date of filing thereof.
7.1.4 Effect of Exceptions Upon Decree Nisi.
(a) An exception to any part of a Decree Nisi shall stay the entire Decree, so that the Decree shall not be a final Order until the exception(s) is/are disposed of.
(b) After expiration of the time for filing of exceptions, the Court upon petition filed by any party may enter an Order or Decree declaring those portions of the Decree Nisi not excepted thereto final and binding pending entry of a Final Decree after consideration of the exceptions that have been filed.
(c) The entry of an interim Order or Decree in accordance with Local Rule 7.1.4(b) shall not render any portion of the original Decree Nisi a final Order for purposes of appeal.
7.1.5 Exceptions to Orders and Decrees.
(a) Additional Exceptions. In the event exceptions are filed by any party, all other parties shall have an additional period of ten (10) days from the service of the initial exceptions within which to file additional exceptions.
(b) Form of Exceptions. All exceptions shall set forth, with particularity and in numbered paragraphs, the portion(s) of the Order to which exception is taken and the basis for each exception. Only one exception shall be made per paragraph. Points of law may be addressed in a separate brief.
(c) Procedure for Service of Exceptions. All exceptions shall be served upon the judge who made the Order or Decree being excepted to and upon all other parties or their counsel of record promptly after filing. The party filing the exception shall file a certificate of service.
(d) Procedure Following Filing of Exceptions.
(1) Upon the expiration of time for filing additional exceptions and replies to exceptions filed, the Court shall enter an Order setting the time and date of the hearing or argument on the exceptions if it deems the same appropriate, unless the parties should stipulate that no argument and/or hearing is necessary.
(2) The Court may order the parties to file briefs or memoranda supporting the position(s) taken by the parties, and may set deadlines for their filing.
(3) Following argument, or upon submission of the exceptions, replies and/or briefs, if any, or upon stipulation and without argument, the Court shall enter an Order or Decree disposing of the exceptions as raised.
7.1.6 Effect of Exceptions on Adjudications, Orders and Decrees.
(a) If specific exceptions to one or more portions of an Adjudication, Order and Decree are filed, the Adjudication, Order or Decree shall become final and binding as to matters not affected by the exceptions.
(b) No Adjudication, Order or Decree to which timely exceptions are taken shall become final for purposes of appeal until the exceptions are disposed of, subject to the provisions of State Rule 7.1(f).
7.1.7 Other Exceptions.
Exceptions not otherwise covered by State Rules 7.1 and 7.2 or by this Rule shall be filed or presented at such time and place, and in such form, as the Court may direct.
RULE 8
AUDITORS AND MASTERS 8.1.1 Appointment.
(a) Auditors. An Auditor shall be appointed only when all parties in interest, or their counsel, consent thereto in writing.
(b) Master. A Master may be appointed by the Court, on its own motion, or upon the petition of the accountant, or of any party in interest.
(c) Auditors and Masters shall be members of the Bar of this Court.
8.1.2 Manner and to Whom Notice is Given.
(a) An Auditor or Master shall give at least ten (10) days' written notice of his appointment and of the time and place of his or her first hearing to all persons who have appeared of record, and to such other persons and in such manner as the Court may direct.
(b) Notice of succeeding hearings given by the Auditor or Master at a hearing of which proper notice has been given shall constitute sufficient notice of such succeeding hearings.
(c) The hearing shall be held at a time and place indicated and not later than forty-five (45) days after the Auditor's or Master's appointment and shall be extended only upon application to the Court for good cause shown.
(d) The report of the Auditor or Master shall be filed within ninety (90) days after appointment and shall be extended only upon application to the Court for good cause shown.
8.6.1 Notice of Intention to File. Exceptions.
(a) An Auditor or Master shall give ten (10) days' written notice to all parties of record of his or her intention to file his report on a day certain and make a copy thereof available for their inspection during such notice period.
(b) Exceptions, if any, shall be filed with the Auditor or Master before the date fixed for the filing of the report and notice thereof shall be given by the exceptant to all parties of record. Upon the filing of exceptions, the Auditor or Master shall consider and dispose of them, and may amend the report if the exceptions are, in the opinion of the Auditor or Master, in whole or part, well founded.
8.7.1 Exceptions Before the Court.
At the hearing before the Court on the confirmation or approval of the report of an Auditor or Master, the exceptant shall be confined to the exceptions filed by that party with the Auditor or Master unless otherwise allowed by the Court.
8.8.1 Filing of Security With Clerk.
The Court may require that security be filed with the Clerk for the compensation of the Auditor or Master and, until filed, the Auditor or Master need not proceed with the performance of his duties.
8.8.2 Compensation of Auditor or Master.
Any Auditor or Master appointed by the Court under these Rules shall be compensated by reasonable fees as fixed by the Court and paid from such sources as the Auditor or Master shall recommend and the Court shall direct. The Court may require payment of the Auditor's or Master's fees in advance.
RULE 9
OFFICIAL EXAMINERS 9.1.1 Examiners--Appointment and Ordinary Duties.
The Court may appoint by special Order an examiner or examiners who shall examine the assets held by a fiduciary and make full written report thereon to the Court showing what assets belong to the estate, how they are registered or otherwise earmarked as the property of the estate to which they belong, and where and how the cash belonging to the estate is kept or deposited.
9.1.2 Examiners--Special Duties.
The Court may, in any Order appointing an examiner or examiners, also request the examiner or examiners to accomplish one or more of the following:
(a) Determine, in the case of a trust, if its purposes are being carried out;
(b) Determine if the funds and assets in the hands of the fiduciary are being used or applied in accord with any trust instrument, Will, applicable statute, regulation or Court Order;
(c) Make a written report including findings of fact, conclusions of law; and, when appropriate, recommendations for the consideration of the Court; and
(d) Such other matters at the Court may designate.
9.1.3 Examiners--Compensation.
Examiners shall be allowed such fees from principal or income, or apportioned between principal and income, as may be directed by the Court.
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1 See also Rule 7 for additional notice.
2 The form provided by the Register of Wills at the time of Appointment of a Personal Representative may be used to meet the requirements of this section.
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