[39 Pa.B. 1478]
[Saturday, March 28, 2009]
[Continued from previous Web Page]
RULE 10
MATTERS BEFORE THE REGISTER OF WILLS 10.1 Application and Construction of Register of Wills Rules.
10.1.2 Application of Rules.
These rules shall govern all proceedings before the Register of Wills.
10.1.3 Construction of Rules.
These rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding before the Register of Wills. The Register of Wills at every stage of any action or proceeding before the Register, in the Register's discretion, may disregard any error or defect of procedure which does not affect the substantial rights of the parties in interest.
10.1.4 Filing of Death Certificates--Estates.
(a) A death certificate for the decedent shall be filed with the Register of Wills not later than with the first submission next following the grant of letters.
(b) The Register of Wills shall have authority to impose a filing fee for a death certificate filed subsequent to the submission of a petition requesting grant of letters.
10.1.5 Extension of Time Limitation.
The Register of Wills, upon his or her own motion, or upon the motion of any party, may extend any limitation of time prescribed by these rules.
10.2 Pleading and Practice before the Register.
10.2.1 Pleading and Practice.
The practice, procedure and forms used before the Register of Wills shall be in substantial conformity with the practice, procedure and forms approved by the Supreme Court of this Commonwealth, or, in the absence thereof, the practice, procedure and forms set forth herein or as approved by the Erie County Court of Common Pleas, Orphans' Court Division.
10.2.2 Jurisdiction of the Register.
All proceedings to determine the validity of a document offered for probate, and all proceedings to grant or revoke letters testamentary or letters of administration shall be before the Register of Wills of the county wherein the decedent maintained his or her last principal residence, or, if a decedent's estate has been opened, the county where the Register has issued letters or a will has been probated.
10.2.3 Presiding Officer.
The Register of Wills, or a duly deputized attorney acting as solicitor for the Register, or a Deputy Register of Wills specifically deputized and authorized by the Register of Wills to conduct hearings, shall be the presiding officer in all proceedings before the Register of Wills.
10.2.4 Evidence.
The Rules of Pennsylvania Evidence shall be applicable to all proceedings before the Register of Wills.
10.2.5 Stenographic Record.
(a) The Register of Wills may, at the Register's discretion, require or permit a stenographic record to be made, at the parties expense, the cost of which shall be allocated as directed by the Register.
10.2.6 Objections to Evidence.
Any objections to any evidence to be presented before the Register shall be made to the Register, or the Deputy Register or attorney acting as solicitor, who is conducting the hearing, who shall rule upon such objections at the time that they are made. In the discretion of the person presiding over the hearing, the presiding officer may defer ruling upon the objection until the conclusion of the hearing.
10.3 Discovery Before the Register.
10.3.1 Limitations on Discovery.
Discovery before the Register, upon application to the Register by an interested party, shall be limited to the following: depositions, request for production of documents, request for admissions, subpoenas.
10.3.2 Objections to Discovery.
Objections to discovery shall be addressed to, and shall be decided by, the Register of Wills or the Deputy Register or solicitor presiding over the hearing.
10.3.3 Additional Discovery.
Requests for additional discovery beyond the scope of these rules shall be made to the Orphans' Court Division.
10.4 Caveat Practice and Procedure.
10.4.1 Form of Caveat.
A formal or informal caveat to initiate the contest of a testamentary writing or to contest a petition for letters testamentary or administration shall be filed with the Register of Wills upon the Forms of Caveat as attached to the end of this rule.
BEFORE THE REGISTER OF WILLS OF ERIE COUNTY, PENNSYLVANIA
Estate of [name of deceased], Deceased
CAVEAT To the Register of Wills of Erie County:
You are hereby requested to admit no paper to probate as the last will and testament of [name of deceased], deceased, who died on [date of death], at [specify location], and was last domiciled at death in Erie County, Pennsylvania. It is further requested that no letters testamentary or letters of administration be issued upon the above estate in connection with the probate of any paper as the decedent's last will and testament without notice to the undersigned.
_________________
[Name of attorney] for [name of client]
[address and phone # of attorney]
or if no attorney
[address and phone # of caveator]10.4.2 Bond and Form of Bond.
After the filing of a caveat with the Register of Wills, the Register may fix a bond at an amount determined at the Register's discretion. The bond as filed before the Register shall be filed upon the Bond Form as attached to the end of this rule.
BEFORE THE REGISTER OF WILLS OF ERIE COUNTY, PENNSYLVANIA
Estate of [NAME OF DECEASED], Deceased
No. [specify number] of [specify year]
BOND OF CAVEATOR KNOW ALL MEN BY THESE PRESENTS, that we ___________________________
_______________________________________________
Name(s) of caveator(s)and __________
Name(s) of Bonding Agency/Insurance Company
are held firmly bound unto the Commonwealth of Pennsylvania, in the sum of ______ Dollars ($ ______ ) to be paid to the said Commonwealth, to which payment well and truly to be made, we do bind ourselves jointly and severally, for and in the whole, our heirs, executors, administrators, successors and assigns, and each and every of them, firmly by these presents.
WHEREAS, the said _____________________________________
on the ______ day of ______ , ______ , filed in the office of the Register of Wills of Erie County, Pennsylvania, a Caveat against the admission to probate of any paper writing alleged to be the last Will and Testament of _________________ Deceased, or the granting of Letters ______ , on the estate of ___________________________ Deceased;
NOW, THEREFORE, the condition of this obligation is, that if the said Caveator(s) shall pay any and all costs which may be occasioned by reason of such caveat, and which may be decreed by such Register of Wills, or by the Orphans' Court Division of Erie County, to be paid by such Caveator(s), then this obligation to be void, otherwise to remain in full force and effect.
Sealed and dated this _________________ , the presence of:
_________________
_________________
Signature of Personal Representative(s)_________________
Signature of Personal Representative(s)_________________
Signature of Bonding Agent
10.4.3 Time for Fixing the Amount of Bond.
The Register, after the filing of an informal or formal caveat with the Register, shall enter an Order fixing the amount of bond to be filed, and in the discretion of the Register, the Register may:
(a) Enter an Order within 10 days after the filing of an informal caveat fixing the amount of the bond; or
(b) Wait until the contested document is presented for probate or grant of letters, or the filing of a formal caveat, and fix the amount of the bond within 10 days after the presentation of the challenged document or the filing of the formal caveat.
10.5 Citation Practice and Procedure.
10.5.1 Request for Citation.
Any party in interest may file a petition with the Register of Wills requesting that a citation be issued by the Register directing the appearance of a party before the Register, the production of a document, or requesting other appropriate relief before the Register.
10.5.2 Form of Citation.
All citations issued by the Register shall be upon the form adopted or approved by the Register's Office.
10.5.3 Person Responsible for Service of Citation.
Service of the citation issued by the Register upon the appropriate parties to be served shall be the responsibility of the party requesting the issuance of the citation.
10.5.4 Method of Service of Citation.
(a) All citations issued by the Register shall be served upon the party to whom the citation is directed by certified mail, restricted delivery, with return receipt showing the signature of the party to whom the citation has been directed or by personal service by the Sheriff or a competent adult. Service outside of the Commonwealth shall be as set forth in PA Rule of Civil Procedure 404.
(b) Citations issued by the Register shall be served within 30 days from the date of issue. The Register, upon cause shown, may extend the time for service.
10.6 Notice.
10.6.1 Distribution of Pennsylvania Orphans' Court Rule 5.6 and Rule 6.12 Notices.
Upon the grant of Letters Testamentary or Letters of Administration the Register shall provide to the personal representative PA Orphans' Court Rule 5.6 and Rule 6.12 Notice forms. The Register shall not be required to mail the forms to the personal representative or counsel of record, or notify the personal representative or the attorney of record of their obligation to file the forms if they have not been timely filed.
10.6.2 Manner of Proceeding.
Whenever a notice is to be given by a person, notice shall be in the manner prescribed in Orphans' Court Rule 5.
10.7 Conclusion of Hearing and Decree of Register.
10.7.1 Procedure Before the Register Upon Conclusion of the Receipt of Testimony.
At the discretion of the Register, at the conclusion of the presentation of testimony from witnesses and the receipt of documents offered into evidence, the Register may require the following from the parties:
(a) closing arguments from each of the parties or their counsel
(b) a brief from each of the parties requesting the following to be included in the brief
(1) the parties' argument supporting their position
(2) proposed Finding of Fact
(3) proposed Conclusions of law
The Register, when briefs are required, shall set the time within which the parties shall file their briefs with the Register, which period of time shall not be less than 30 days nor more than 45 days from the date of the conclusion of the hearing.
10.7.2 Decision of the Register.
Within 30 days following the conclusion of the hearing before the Register, or within 30 days after the submission of written briefs, if required, whichever is later, the Register shall render a written decision. The Register, in rendering his or her decision, may, but need not, render a written opinion containing findings of fact and conclusions of law, together with a discussion of the issues before the Register. The opinion of the Register shall be accompanied by a Decree of the Register containing the Register's decision.
10.8 Appeals from Decision of Register.
10.8.1 Right of Appeal.
Any party aggrieved by a decision of the Register shall have the right to appeal the Register's decision to the Orphans' Court Division of the Court of Common Pleas in accordance with PEF Code § 908.
10.8.2 Procedure for Appeal from Decisions of the Register of Wills.
Any appeal from a decision of the Register of Wills shall be initiated as follows:
(a) A notice of appeal shall be filed with the Register of Wills on the form attached to the end of this rule;
(b) A petition for appeal and issuance of citation shall be filed with the Clerk of the Orphans' Court, signed by counsel, if any, verified by petitioner and shall set forth the following:
(1) The caption;
(2) A heading indicating briefly the purpose of the petition;
(3) A concise statement of the facts relied upon to give the Court jurisdiction and to justify the relief desired, and any averments specifically required by any State Rule or Local Rule. The statement shall be divided into paragraphs numbered consecutively, each containing but one material allegation, and shall cite the applicable section of any Act of Assembly relied upon;
(4) The names of all parties in interest, indicating those not sui juris. The names of fiduciaries of parties not sui juris shall be set forth with references to their appointments;
(5) A prayer for the relief desired;
(6) There shall be attached to the appeal petition as exhibits the originals or copies of all Wills, codicils, consents, joinders, approvals, contracts and any other written instruments relied on or pertinent. Exhibits which are not originals and not otherwise certified shall be certified by counsel to be correct. If the petitioner is unable to attach any exhibit, such shall be stated in his petition, with the reason for the inability; and
(7) Within ten (10) days of filing the petition for appeal, the appellant shall file a bond and secure its approval by the Register and shall request a Citation by the Court to all parties in interest, including those not represented on the record.
(c) Non Pros.
If the bond is not presented within ten (10) days of taking the appeal, the Clerk of the Orphans' Court, upon praecipe of the appellee, shall order a judgment of non pros.
(d) Certified Cases.
When a certification of a dispute has been made by the Register of Wills to the Orphans' Court Division under PEF Code § 907, the Court will determine whether pleadings will be required.
(e) Jury Trial.
A person entitled to and desiring a trial by jury, shall make timely demand therefore in accordance with the PEF Code.
(f) Action Upon Default.
If the respondent in any action fails to comply with the requirements of any citation or notice, the Court, upon proof of service thereof, shall make such Order as may be just and necessary.
(g) Enforcement of Decrees.
(1) Applications for Enforcement, Procedure. All applications to enforce a decree or adjudication for the payment of money or costs or for the delivery of any goods, chattels, or other assets of an estate by a fiduciary or surety, shall be by petition of the person or persons entitled thereto, briefly setting forth the facts. If the application is satisfactory to the Court, an Order will be granted to pay or transfer, assign or deliver, as the case may be.
(A) Service. If possible, a copy of the Order, certified by the Clerk or counsel, must be served upon the respondent personally at least ten (10) days prior to the day specified therein. If such service is not possible, service may be made as required of a citation by PEF Code § 765.
(2) Writ of Attachment. If the Order of Court is not complied with on or before the day specified, upon proof of service of the order as required of a citation by Section 765, PEF Code, 20 Pa.C.S.A. Section 765, and upon petition setting forth the necessary facts, a writ of attachment of the person will be awarded.
(3) Sequestration. If an Order to pay or transfer, assign or deliver has not been complied with on or before the date specified in such Order, upon proof of service of the Order upon a fiduciary or surety in the manner required for the service of a citation by PEF Code § 765, or upon proof of service of notice of such Order as provided in Section 768 of said Code, and upon petition setting forth the necessary facts, the Court may direct sequestration of real or personal property or attachment execution.
IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
Estate of [name of deceased], Deceased
No. [specify number] of [specify year]
APPEAL FROM PROBATE To the Register of Wills of Erie County:
You are hereby notified that the undersigned hereby appeals to the Orphans' Court of said county from the decision of the Register of Wills in the above estate admitting to probate as a certain writing and alleged last will and testament of [name of deceased], the deceased, a writing dated [date of writing], and granting letters testamentary thereon.
_________________
[Name of Attorney for Appellant]
IN THE COURT OF COMMON PLEAS OF ERIE COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION
Estate of [name of deceased], Deceased
No. [specify number] of [specify year]
PETITION FOR CITATION TO SHOW CAUSE WHY APPEAL FROM PROBATE
SHOULD NOT BE SUSTAINEDTo the Honorable, [name of judge], the Orphans' Court Judge of the said Court:
NOW comes [name of petitioner], petitioner(s), and request(s) your Honorable Court to issue a citation in the above matter directed to the executor of the estate of [name of deceased] and the heirs of the estate of [name of deceased] to show cause why the decision of the Register of Wills admitting to probate a writing dated [date of writing], as the last will and testament of the above decedent should not be vacated and the appeal therefrom sustained, and says:
1. The above-named decedent, [name of deceased], was a resident of [name of county] County at the time of his/her death on [date of death], with a last principal address of [last principal address of deceased].
2. Your Honorable Court has jurisdiction over this matter under and pursuant to 20 Pa.C.S.A. § 711(1) and (18).
3. On [specify date], the Register of Wills admitted to probate as the last will and testament of the above-named decedent a writing dated [date of writing]. Your petitioner(s) feel(s) the aforesaid last will and testament admitted to probate is not the last will and testament of the decedent and should not have been admitted to probate for the following reasons: [specify reasons].
4. Your petitioner(s) is(are): (1) beneficiar(y)(ies) under a prior last will and testament of the decedent dated [date of will]; or (2) is(are) the person(s) entitled to inherit under the intestate laws of the Commonwealth of Pennsylvania and will be the heir(s) of the decedent if the aforesaid last will and testament is not admitted to probate ([specify relevant facts] [state such other facts as will allow petitioner(s) to either gain or lose if the last will and testament admitted to probate is allowed to stand as the last will and testament of the decedent or is set aside]).
5. The name(s) and address(es) of the executor(s) of the last will and testament admitted to probate is(are) as follows: [name of executor] [address of executor].
6. The name(s) and address(es) of all other parties in interest is(are) as follows: [name of party/parties in interest] [address of party/parties in interest].
7. The proceedings before the Register of Wills have consisted of the admission to probate of a purported will of the decedent dated [date of purported will], and the grant of letters testamentary thereon unto [name of person granted letters]. A copy of the Register's decree is attached hereto and marked Exhibit A.
8. On [date of filing], your petitioner(s) filed an appeal from the Register's order admitting the will to probate, a copy of said Notice of Appeal having been served upon the Register of Wills on [date of service]. A true and correct copy of the Notice of Appeal is attached hereto and marked Exhibit B.
9. Your petitioner(s) believe(s) and therefore aver(s) that the testator (lacked testamentary capacity) (executed the aforesaid last will and testament as the result of undue influence), and in support of said allegation allege(s) as follows: [specify allegations].
[OR] The signature of the testator is not the signature of the testator, but is a forgery and in support thereof the petitioner(s) allege(s) as follows: [specify allegations].
[OR] The aforesaid last will and testament is not the last will and testament of the decedent for the reason that the aforesaid will was procured by fraud and misrepresentation, and in support of said allegation, the petitioner(s) allege(s) as follows: [specify allegations].
WHEREFORE, petitioner(s) request(s) that your Honorable Court issue a citation upon the respondent(s) to show cause why the appeal from the decree of the Register of Wills admitting to probate the writing dated [date of writing] should not be sustained, and that the decree of the Register of Wills be opened to permit the Register to receive and act upon (a petition for probate of an earlier writing dated [date of writing], as the last will and testament of the decedent) (a petition for letters of administration on the estate of decedent).
_________________
[Name of Attorney for Petitioner(s)][Add verification of petitioner(s).]
10.8.3 Decree of Orphans' Court upon Sustaining Appeal.
Upon appeal from a decision of the Register of Wills, if the Orphans' Court sustains the appeal, the Court shall:
(a) In sustaining an appeal from probate shall direct the Register to revoke its decree of probate;
(b) In sustaining an appeal from the grant of letters shall direct the Register to revoke its grant of letters;
(c) In an appropriate case, if the Court directs the revocation of a decree of probate or the grant of letters, the Court shall direct the Register to enter an appropriate decree of probate or grant appropriate letters testamentary or administration to the appropriate person or persons.
10.8.4 Decree of Orphans' Court upon Dismissing Appeal.
Upon dismissing an appeal, the Orphans' Court shall enter a final Decree dismissing the appeal from the Register's decree.
RULE 12
SPECIAL PETITIONS 12.0.1 Settlement of Small Estates.
(a) Form of Petitions. Contents.
Petitions under PEF Code § 3102, as amended for the settlement of small estates shall set forth:
(1) The name and address of the petitioner and the relationship of the petitioner to the decedent.
(2) The name, date of death and domicile of decedent, whether the decedent died testate or intestate, the dates of the probate of the Will and of the grant of letters, if any, and whether the personal representative has been required to give bond and, if so, amount.
(3) The names and relationship of all beneficiaries entitled to any part of the estate under the Will or intestate laws, a brief description of their respective interests, whether any of them has received or retained any property of the decedent by payment of wages under Section 3101 of the PEF Code and whether any of them are minors, incapacitated or deceased with the names of their fiduciaries.
(4) The person or persons, if any, entitled to the family exemption; whether or not the individual was a member of the same household as the decedent at the time of decedent's death; and, if a claim thereof is made in this petition, any additional facts necessary to establish the prima facie right thereto.
(5) An inventory of the real and personal estate of the decedent, with values ascribed to each item, either incorporated in the petition or attached as an exhibit.
(6) An itemization of all administrative costs, funeral expenses, debts and distributions, and of assets then remaining for distributions.
(7) A list showing the nature, amount and preference of all unpaid claims against the estate and indicating which are admitted.
(8) That ten (10) business days' written notice of intention to present the petition has been given to every unpaid beneficiary, heir or claimant who has not joined in the petition, or to the Attorney General, if the decedent's heirs are unknown.
(9) A prayer for distribution of the property, setting forth the persons entitled and their distributive shares, and requesting the discharge of the personal representative and the release of surety, if letters have been granted and advertised.
(b) Required Exhibits.
The following exhibits shall be attached to the petition:
(1) The original of the decedent's Will, if it has not been probated.
(2) Joinders of unpaid beneficiaries, heirs and claimants insofar as they are obtainable.
(3) A receipt for the filing of an inheritance tax return reporting the assets which are the subject of the petition.
(4) A certification that a copy of the proposed petition and decree has been given to all beneficiaries and unpaid creditors at least ten (10) business days prior to presentation of the petition.
(5) Written confirmation by the Pennsylvania Department of Public Welfare of the amount of any claim for assistance provided to the decedent.
12.1.1 Family Exemption. Additional Requirements.
A petition for the family exemption shall also set forth in separate paragraphs:
(a) The name, residence and date of death of the decedent;
(b) The name, address and relationship of the petitioner to the decedent, and whether the petitioner was a member of the same household as the decedent at the date of decedent's death;
(c) The name of the spouse of the decedent, if any, and whether the spouse forfeited spousal rights;
(d) Whether the decedent died intestate or testate, and the date of the appointment of the fiduciary, if any;
(e) The description and value of the property claimed;
(1) If an inventory has been filed, the petition shall set forth the value of the property claimed as fixed in the inventory.
(2) If it is not included in the inventory, an appraisal or written confirmation of the value of the property as of the date of death must be attached to the petition, unless the property claimed consists of personal property in the form of cash, bank accounts or government bonds whose value is ascertainable from its face; and
(f) That ten (10) business days' prior notice of intention to present the petition at a stated regular session of Motion Court has been given to the personal representatives, or when no letters have been granted, to the parties adversely affected. The ten (10) days' notice requirement shall not be required in the case of a petition filed by a surviving spouse, nor shall ten (10) days' notice be required if the petition contains consents executed by all other parties in interest.
(g) The family exemption petition may be included in a petition for settlement of small estates.
12.5.1 Minor's Estate. Appearance Before the Court. Minor over Fourteen.
A minor over the age of fourteen (14) shall appear in person at the presentation of the petition for appointment of guardian. If the minor is unable to appear in person, the reason for the minor's absence shall be set forth in the petition.
12.5.2 Minor's Estate. Restricted Account.
(a) No guardian shall exercise any authority under his appointment until the guardian shall have filed and had approved by the Court a bond in an amount directed by the Court, except where the guardian is a corporate fiduciary authorized to act as such under applicable law.
(b) In lieu of bond, the Court may authorize the guardian to deposit the cash in a Federally insured interest bearing account or a money market or cash management account guaranteed by the Security Investors Protection Corporation, with the restriction, ''Not to be withdrawn prior to the minor's attainment of the age of eighteen (18) except on Order of Court.'' Proof of such deposit shall be presented to the Clerk of the Orphans' Court within thirty (30) days.
12.5.3 Minor's Estate Not Exceeding Amount Established by PEF Code.
(a) Disposition. In General. If the value of the real and personal estate of a minor does not exceed the amount established by the PEF Code, the Court may:
(1) Authorize payment or delivery thereof to the minor, or the parent or other person maintaining the minor; or
(2) Direct the deposit of the money in a restricted account or accounts, in the name of a natural guardian of the minor, or of the minor alone; or
(3) Make such provision for the retention or deposit of securities or other assets, as the Court shall deem for the best interests of the minor.
(b) Mortgage or Sale of Real Property. If the entire estate of a minor does not exceed the amount established by the PEF Code, the Court, upon petition, may authorize the parent or other person maintaining the minor to convey or mortgage any real property forming a part or all of such estate, without the appointment of a guardian or the entry of security. The petition shall conform to the requirements of the Rules governing the sale or mortgage of real property by a guardian. The Order of the Court may be conditioned upon the deposit of the proceeds of the sale or mortgage in a restricted account or accounts.
12.5.4 Minor's Estate. Allowance.
When a petition is necessary for an allowance from a minor's estate, the petition shall set forth:
(a) The manner of the guardian's appointment and qualification, and the dates thereof;
(b) The age and residence of the minor, whether the minor's parents are living, the name of the person with whom the minor resides, and the name and age of the minor's spouse and children, if any;
(c) The value of the minor's estate, real and personal, where located and the net annual income;
(d) The circumstances of the minor, whether employed or attending school; and, if the minor's parents are living, the reason why the parents are not discharging their duty of support;
(e) The date and amount of any previous allowance by the Court;
(f) The financial requirements of the minor and the minor's family unit, in detail, and the circumstances making such allowance necessary; including whether there is adequate provision for the support and education of the minor, spouse and children.
(g) If the petition is presented by someone other than the guardian, that demand was made upon the guardian to act, and the reason, if known, for the guardian's failure to do so.
12.5.5 Minors and Incapacitated Persons; Settlement, Compromise or Discontinuance.
(a) Contents of Petition. The Petition for Settlement, Compromise or Discontinuance shall:
(1) State the name, residence and parentage of the minor or incapacitated person;
(2) Set forth the factual circumstances of the case;
(3) Set forth the injury sustained and its effect on the property and health of the minor or incapacitated person;
(4) Itemize the expenses and fees incurred in the treatment of the injuries or substantiating and establishing the settlement or compromise;
(5) State whether proceedings have been conducted in a civil action concerning the claim and if so, include detail as to the nature of such proceedings and the presiding Judge;
(6) State the reason why the settlement or compromise is a proper one;
(7) State the amount of counsel fees incurred in obtaining the agreement for settlement or compromise;
(8) Include a proposed Order for hearing on the Petition for approval;
(9) Include a proposed Order for distribution.
(b) Manner of Presentment. Petitions under this Rule shall be presented in accordance with Erie County Civil Procedure Rule 2039.
The Judge to whom the Petition is submitted may require the personal appearance of the minor or incapacitated person, the guardian of the minor, the doctor or any other relevant party, as well as the production of any other evidence deemed necessary for approval of the Petition.
(c) Notice of Hearing. Notice of hearing on the Petition shall be given by United States first class mail, or as the Court shall direct, to all parties which shall include the minor or incapacitated person, the minor's parents, the minor's or incapacitated person's guardian(s) and any other person so designated by the Local Rules, the State Rules or the Judge to whom the Petition is presented. Proof of service shall be filed with the Court pursuant to the Local Rules.
(d) Filing of the Petition. Petitions presented under this Rule shall be filed as follows:
(1) If the Petition pertains to a matter as to which a civil action has been commenced and docketed, the original Petition shall be filed with the Prothonotary and a copy of the Petition shall be filed with the Register of Wills.
(2) If the Petition pertains to a matter as to which no civil action has been commenced, the original Petition shall be filed with the Register of Wills.
(e) Petitions under this Rule shall be substantially like the form at the end of this Rule.
(f) Confirmation of Deposits into Restricted Accounts. When the Court directs the deposit of the sum payable to the minor or incapacitated person be placed in a restricted account, the deposit shall be made with a copy of the approving Court Order not later than five (5) business days after receipt of the settlement funds by the person directed to make the deposit. The designated depositor shall file or cause to be filed with the Register of Wills proof of the restricted account deposit in compliance with the approving Court Order, including the amount, within thirty (30) days after the date of the Order.
Committee Comment. The objective of subsection (b) of this Rule is to ensure that an assigned Judge in a civil action who has presided over proceedings which would facilitate an evaluation of the facts and proposed settlement consider a petition under this Rule, petitions in other cases being presented to the Motions Judge of the Orphans' Court. The purpose of including item 6 in the form petition is to make clear potential involvement by the assigned Judge in a civil action so that a Motions Judge of the Orphans' Court to whom a petition is presented can, in his or her discretion, determine whether presentation and determination in Orphans' Court is appropriate in the facts of the case.
(CAPTION)
PETITION FOR SETTLEMENT, COMPROMISE, DISCONTINUANCE
AND DISTRIBUTION FOR A MINOR/INCAPACITATED PERSONTo the Judge of your Honorable Court:
This Petition respectfully represents:
1. Petition is ______ , who resides at ______ , and is the parent, guardian of the minor/incapacitated person, age ____ years, born the ____ day of ______ , ____ , and who resides at ______ .
2. The minor's parents are ______ , father, and ______ , mother, who reside at ______ .
3. The minor/incapacitated person's claim arises out of the following circumstances (set forth the date, place, time and details): _________________ .
4. The minor/incapacitated person sustained injuries as follows (set forth description of the injuries, the effect of the injuries on the property and health of the minor, including applicable medical reports and records, recovery or prognosis): _________________ .
5. The following expenses were incurred in the treatment of the injuries to the minor/incapacitated person (itemize expenses incurred, noting whether paid or owed); state if any are to be reimbursed out of the settlement and if so, to whom they are payable): _________________ .
6. A civil action pertaining to this claim has/has not been commenced. If an action has been commenced and is not identified above, docketing information pertaining to said action is as follows: ______ , ______ . Proceedings in said civil action before the assigned Judge include: _________________ .
7. Petitioner has received an offer from _________________ to settle the minor's/incapacitated person's claim for the amount of $ ______ . A copy of the offer is attached hereto as Exhibit ____ .
8. Petition believes the settlement offered is in the best interest of the minor/incapacitated person for the following reasons (give reasons): _________________ .
9. ______ , Esq. has been the attorney for the minor/incapacitated person in this matter and requests a counsel fee for services detailed in Exhibit ____ attached hereto which, in Petitioner's opinion, is a reasonable fee. Counsel also requests reimbursement for disbursements of $ ______ as shown on Exhibit ____ .
10. Petitioner and counsel are satisfied the offer of settlement is reasonable and proper in this matter.
11. To consummate the offered settlement, Petitioner, on behalf of the minor/incapacitated person, will be required to execute a release, a copy of which is attached hereto as Exhibit ____ , and obtain approval of the settlement by your Honorable Court.
12. Petitioner requests this Honorable court to approve the within offer of settlement and to direct disbursement of the proceeds as follows:
(a) _________________ , Esq. - attorney fee $ ______ (b) _________________ , Esq. - reimbursement $ ______ (c) Other: _________________ $ ______ (d) Petitioner on behalf of the minor/incapacitated person as per attached Court Order $ ______ 13. The Petitioner requests this Honorable Court to direct the deposit of the above balance for this minor person into one or more federally insured savings accounts in the name of the minor/incapacitated person, to be marked ''Not to be withdrawn before the ____ day of ______ , ____ (date of minor's 18th birthday) or by further Order of this Court (other disposition may be requested as provided by statute).''
WHEREFORE, Petitioner requests this Honorable Court to enter an Order approving the above settlement, directing distribution of the proceeds and expenses as set forth above and authorizing the Petitioner to execute the Release upon payment of the sum of $ ______ .
Respectfully submitted,
__________
Petitioner
NAME OF LAW FIRM
BY: __________
Address
Telephone
Attorney No.
VERIFICATION I, ______ (Petitioner), hereby verify, subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities, that the facts set forth in the foregoing Petition are true and correct to the best of my knowledge, information and belief.
__________
ORDER AND NOW, this ____ day of ______ , 20 ____ , upon consideration of the foregoing Petition and this Court being satisfied as to the reasonableness of the settlement and that the settlement is in the best interest of the minor/incapacitated person hereto, it is hereby ORDERED, ADJUDGED AND DECREED:
1. The settlement set forth in the Petition in the above matter presented to the Court is approved as being in the best interest of the minor/incapacitated person, ______ .
2. Counsel fees to the firm of ______ , Attorneys-at-Law, of $ ______ and the reimbursement of ______ , Esq. for expenses, $ ______ from the settlement proceeds are approved.
3. The settlement sum of $ ______ is directed to be disbursed as follows:
A. _________________ , Esq.
(attorney's fees per fee agreement)$ ______ B. _________________ , Esq.
(reimbursement for expenses)$ ______ C. Other: _________________ $ ______ D. _________________
(minor/incapacitated person's name)$ ______ Total $ ______ 4. The total sum payable to ______ (minor/incapacitated person's name), $ ______ , is directed to be deposited by his/her parents, ______ (parent's names) in a savings account in the name of the parent as natural guardian of ______ (minor/incapacitated person's name) in a local bank or savings and loan association, either FDIC or FSLIC insured, said account to be marked that no withdrawal may be made until the _____ day of ______ , 20 ____ (date of minor/incapacitated person's birthday) or upon further Order of this Court. This deposit shall be made within five (5) business days following receipt of the minor/incapacitated person's proceeds.
5. Upon receipt of the settlement proceeds, ______ is authorized to execute and deliver a Release in the form as attached to the foregoing Petition.
6. Petitioner shall file with the Register of Wills proof of the restricted account deposit in accordance with this Order within thirty (30) days of the date of this Order.
__________
J.
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