[26 Pa.B. 464]
[Continued from previous Web Page] Rule 12.9B. Notice of Public Sale of Real Property.
(a) Public notice of any proposed sale under Order of Court shall be given by advertisement one (1) time in at least one newspaper of general circulation published in the County of Schuylkill and in the legal publication designated by these rules, and shall be placed under a general heading as follows:
COURT OF COMMON PLEAS OF
SCHUYLKILL COUNTY
ORPHANS' COURT DIVISION
PUBLIC SALE OF REAL ESTATEIn pursuance of an Order of the Orphans' Court Division aforesaid, the real estate indicated below will be offered for sale at the time and place stated. The terms and conditions of sale are of record in the office of the Clerk of the Orphans' Court at the Schuylkill County Courthouse, Pottsville, Pennsylvania, where they may be examined by the parties interested.(b) The advertisement shall give the name of the decedent, trust beneficiary, minor, or incompetent/incapacitated person, the municipality in which he resided, the place in which lies the real estate to be offered for sale, an abridged description of the real estate (including, where possible, the street and house number, and block and lot number), the improvements thereon erected, the place, date, and time of sale, the name and title of the personal representative directed to make the sale, and the name of the attorney representing the fiduciary.
(c) At least ten (10) days written notice shall be given to all non-joining parties interested (1) as heirs, devisees, legatees, or lien holders, where the property to be sold is that of a decedent's estate; or (2) as the next of kin, where the property to be sold is that of an incompetent/incapacitated person; or (3) as beneficiaries, including life tenant and remaindermen, of the trust estate where the sale is to be by a trustee; or (4) as the parents or other person maintaining the minor where the property to be sold is that of a minor.
The written notice herein provided for shall be by personal service or by registered mail to the last known address of the person to be notified.
Rule 12.9C. Public Sale of Real Property. Return of Sale.
All returns of sale of real estate sold at public sale shall be in writing and sworn to and shall include:
(a) proofs of publication of the notice required by Sch.Co.O.C. Rule 12.9B(a);
(b) when and to whom written notice was given under Sch.Co.O.C. Rule 12.9B(c); and
(c) the name of the purchaser and the purchase price.
Rule 12.9D. Public Sale of Real Property. Decree.
Upon return of sale under Sch.Co.O.C. Rule 12.9C, the Court may enter a Decree of Confirmation Nisi and fix the amount of security or additional security which the personal representative, trustee, or guardian shall be required to enter or the Court may excuse the fiduciary from entering additional security; and the Decree of Confirmation Nisi so entered is FINAL unless exceptions are filed within ten (10) days of the date signed.
Rule 12.10A. Private Sale of Real Property.
A petition of a fiduciary to sell real property at private sale shall also conform as closely as practicable to the requirements of Sch.Co.O.C. Rule 12.9 with regard to a petition to sell real property at public sale by the same fiduciary and shall also be supported by the affidavits required under Pa.O.C. Rule 12.10(b).
Rule 12.10B. Private Sale of Real Property. Public Notice of Sale. Form of Notice.
Public notice of any proposed private sale under Order of Court shall be given by advertisement one (1) time in at least one newspaper of general circulation published in the Court of Schuylkill and in the legal publication designated by these rules; unless excused by Order of Court, notice shall also be given by personal service or registered mail to the last known address of all non-joining interested parties as specified in Sch.Co.O.C. Rule 12.9B(c); and shall be in the following form:
COURT OF COMMON PLEAS OF
SCHUYLKILL COUNTY
ORPHANS' COURT DIVISION
PRIVATE SALE OF REAL ESTATEIn the matter of the Estate of (deceased--a minor--an incompetent/incapacitated person). To the heirs, legatees, devisees, next of kin, and all other persons interested in said estate:
Notice is hereby given that __________
_________________ (personal representative--trustee--guardian) has filed in the office of the Clerk of the said Court his petition praying for an order of sale of the real estate of said (decedent--minor--incompetent/incapacitated person) situate __________
__________
at private sale to _________________ for the sum of $ ______ for the purposes in the petition set forth. If no exceptions are filed thereto or objections are made to granting the same, the Court will be asked to take action upon the petition on the ______ day of ______ , 19 __ , at ____ a.m., at the Schuylkill County Courthouse, Pottsville, Pennsylvania.__________
Attorney for PetitionerRule 12.10C. Private Sale of Real Property. Higher Offer.
Any person desiring to make a substantially higher offer for real property offered at private sale may do so at the time the petition is presented for confirmation of the proposed sale, whereupon the Court will make such order as it deems advisable under the circumstances.
Rule 12.10D. Confirmation of Sale.
If no exceptions are filed, objections made, or substantially higher offer presented, the Court may enter a decree:
(1) fixing the amount of security or additional security which the personal representative, trustee, or guardian shall be required to enter or excusing the fiduciary from entering additional security; and
(2) confirming the sale absolutely effective immediately or as of the time the required security or additional security, if any, is approved and filed.
Rule 12.10E. Sale By Fiduciary Without Court Order.
In a sale, whether public or private, of real property by a fiduciary without benefit of an Order of Court directing or authorizing such sale, where he was required to give bond as such fiduciary, he shall present his petition to the Court before the proceeds of the sale are paid to him by the purchaser setting forth:
(a) the date of death of the decedent;
(b) the date of grant of letters to the petitioner;
(c) the amount of the bond filed by him and the date of such filing;
(d) the date of filing of the inventory and the total valuation of the personal estate and the real estate, respectively;
(e) a short description of the real property sold, the name of the purchaser, and the amount of the consideration to be paid; and
(f) a prayer for an order fixing the amount of additional security to be entered or for an order excusing him from filing additional security, as the case may be, and authorizing the fiduciary to receive the proceeds of sale.
Rule 12.11A. Mortgage of Real Property.
Contents of Petition. A petition to mortgage real property by a personal representative, trustee, or guardian shall conform as closely as practicable to the requirements of Sch.Co.O.C. Rule 12.9A with regard to a petition to sell real property at public sale by the same fiduciary.
Rule 12.11B. Pledge, Lease, or Exchange of Real Property.
The practice and procedure governing petitions by a personal representative, trustee, or guardian to pledge, lease, or exchange, or to grant an option for the pledge, lease, or exchange of property under the P.E.F. Code, shall be governed by Sch.Co.O.C. Rule 12.10 governing the private sale of mortgage by such fiduciary.
Rule 12.12A. Inalienable Property. Public Sale.
(a) Trustee. A petition to sell real property at public sale, under Chapter 83 of the P.E.F. Code, shall set forth in separate paragraphs:
(1) how title was acquired, stating the date and place of probate of the will or recording of the deed;
(2) a full description of the real property, its improvements, by whom it is occupied, its rental value, and the liens and charges to which it is subject;
(3) the interest of the petitioner, if a fiduciary, how and when he was appointed; if other than a fiduciary, the name of the fiduciary, if any, and how and when such fiduciary was appointed;
(4) a recital of the history of the trust, and of the relevant provisions of the Will or Deed pertaining to the real property to be sold; the names of all parties and the nature and extent of their interests, stating which, if any, are minors or incompetents/incapacitated persons, and giving the names and record of appointment of their guardians, if any; and the names of the next of kin and the age of any minors;
(5) that the purpose of the proceeding is to obtain a decree stating that the title transferred to the purchaser shall be indefeasible by any person ascertained or unascertained, or by any class of persons mentioned in the petition or decree having a present or expectant interest in the premises, and unprejudiced by any error in the proceedings of the Court;
(6) sufficient facts to enable the Court to determine whether the proposed sale will be to the interest and advantage of the parties, and whether the proposed sale may be made without prejudice to any trust, charity, or purpose for which the real property is held, and without violation of any laws which may confer an immunity or exemption from sale or alienation; and
(7) the names of any parties who do not voluntarily appear.
(b) Guardian of a Minor. A petition by a guardian to sell real property at public sale, under Chapter 83 of the P.E.F. Code, shall set forth in separate paragraphs:
(1) that the petitioner was appointed guardian of the estate of the minor, stating the method, date, and record of his appointment; or, if the estate of the minor consists of an interest in real property to the value prescribed by statute, that the petitioner is the natural guardian, or the person by whom the minor is maintained, stating the relationship of the petitioner to the minor;
(2) the interest of the minor and full description of the real property proposed to be sold; its improvements; by whom occupied; its rental value; and the liens and charges to which it is subject;
(3) whether title was acquired by Will, descent, or deed; the date of decedent's death; the date and place of probate of the Will or recording of deed with respect to the real property proposed to be sold; and if the interest of the minor is partial, the names of the other parties; the nature of their interest; that they desire the sale to be made and are willing to join in the deed;
(4) the age of the minor; the names of his next of kin; and the notice given them of the presentation of the petition; and
(5) sufficient facts to enable the Court to determine that it would be in the interest of such minor that the real property be sold.
Rule 12.12B. Inalienable Property. Public Sale. Exhibits.
(a) Exhibits. Consents to the sale signed by those parties in interest who consent thereto, and the notice which has been given to those parties who do not consent or voluntarily appear as petitioners or respondents; if all parties having an interest do not voluntarily appear as petitioners or respondents, a citation will be granted, directed to all parties who have not appeared, as provided by the P.E.F. Code.
(b) The practice and procedure with respect to the notice, confirmation and the entry of security shall conform to the appropriate provisions of Sch.Co.O.C. Rules 12.9B, 12.9C and 12.9D.
Rule 12.12C. Inalienable Property. Private Sale.
(a)(1) Trustee. A petition by a trustee to sell real property at private sale, under Chapter 83 of the P.E.F. Code, shall set forth in separate paragraphs:
(i) the information required under Sch.Co.O.C. Rules 12.12A and 12.12B;
(ii) the name and address of the proposed purchaser, the price to be paid; the terms of the proposed sale; and that the price offered is better than can be obtained at a public sale; and
(iii) when the proposed sale is of an undivided interest, that the other parties in interest desire the sale to be made and are willing to join in the deed.
(2) Guardian of a Minor. A petition by a guardian to sell real property at private sale, under Chapter 83 of the P.E.F. Code, shall set forth in separate paragraphs:
(i) the information required in Rules 12.12A and 12.12B; and
(ii) the name and address of the proposed purchaser, the price to be paid, the terms of the proposed sale, and that the price offered is better than can be obtained at a public sale.
(b) Exhibits. The following exhibits shall be attached to a petition by a fiduciary to sell real property at private sale, under Chapter 83 of the P.E.F. Code:
(1) affidavits of two real estate appraisers setting forth the information required by Pa.O.C. Rule 12.10(b); and
(2) consents to the sale signed by those parties in interest who consent thereto and the notice which has been given to those parties who do not consent or voluntarily appear as petitioners or respondents; if all parties having an interest do not voluntarily appear as petitioners or respondents, a citation will be granted directed to all parties who have not appeared as provided by the P.E.F. Code.
(c) The Court, in the decree approving or confirming the sale, will fix the amount of security which the fiduciary shall be required to enter.
Rule 12.12D. Inalienable Property. Mortgage.
(a) (1) Contents of Petition. A petition by a fiduciary to mortgage real property, under Chapter 83 of the P.E.F. Code, shall conform as closely as practicable to the requirements of Sch.Co.O.C. Rule 12.9 with regard to a petition to sell real property at public sale by the same fiduciary; shall set forth the amount and terms of the proposed loan; and shall provide sufficient facts to enable the Court to determine whether the proposed loan should be approved.
(2) Exhibits. Security. The exhibits required by Sch.Co.O.C. Rule 12.12C(b) shall be attached to the petition, with the proviso regarding consents, that if all parties having an interest do not voluntarily appear as petitioners or respondents, a citation will be granted directed to all parties who have not appeared, as provided by the P.E.F. Code. Security shall be fixed as provided by Rule 12.12C(c).
RULE 14: ESTATES OF INCAPACITATED PERSONS/INCOMPETENTS Rule 14.2A. Guardians. Bond.
(a) Individuals as Guardians. Except in special circumstances, the Court will not appoint an individual as a guardian of the estate of an incompetent/incapacitated person without setting bond, as the Court in its discretion, deems appropriate. (Exceptions may include situations where a corporate guardian cannot be secured or the only asset of the incompetent/incapacitated person is a regular benefit payment such as pension, Social Security, Veterans' Administration, public assistance, railroad retirement payments.)
Rule 14.2B. Small Estates.
If at hearing the incompetency/incapacity is established, and it appears that the gross estate does not exceed the statutory limitation as defined in § 5505 of the P.E.F. Code, the Court may award the entire estate to the person or institution maintaining the incapacitated person/incompetent, or make such order as may be appropriate under the circumstances.
Rule 14.2C. Notice.
Proof of service of notice shall be presented at the hearing. The affidavit of service shall, in all cases, relate that the petition and citation were read to the alleged incapacitated person/incompetent in the terms that person is most likely to understand.
Rule 14.2D. Allowance for Maintenance and Support.
(a) Petition for Maintenance and Support. A petition for an allowance for maintenance and support of an incapacitated person/incompetent during incapacity or incompetency shall set forth:
(1) the name of the guardian and the date of his appointment; if the petitioner is not the guardian, his relationship to the incapacitated person/incompetent, and if not related, the nature of his interest;
(2) a summary of the inventory, the date it was filed, and the nature and present value of the estate;
(3) the address and occupation, if any, of the incapacitated person/incompetent;
(4) the names and addresses of the incapacitated person's/incompetent's dependents, if any;
(5) a statement of all claims of the incapacitated person's/incompetent's creditors known to petitioner;
(6) a statement of the requested allowance and the reason therefor; a statement of all previous allowances made by the Court; and
(7) if any portion of the incapacitated person's/incompetent's estate is received from the United States Veterans' Administration or its successor, that notice of the request for allowance has been given to that agency.
(b) Accounts and Distribution. The practice and procedure with respect to the filing and audit of accounts, as well as the distribution of the assets of the estate, shall conform with Sch.Co.O.C. Rule 6.9C(e).
RULE 15: ADOPTIONS Rule 15.1A. Petition to Confirm Consent of Natural Parent. Notice. Copy of Consent to Natural Parent.
(a) A petition to confirm the consent of a natural parent to the adoption of a child under Section 2504 of the Adoption Act, where the natural parent executed the consent outside this Commonwealth, must include a certification by petitioner's attorney that the consent is in accordance with the laws of the jurisdiction where it was executed.
(b) A copy of the notice of the hearing prescribed by Section 2513(b) of the Adoption Act shall be a part of each petition. Service of the notice of hearing shall be as prescribed by Section 2504 of the Adoption Act and Pa.O.C. Rule 15.6.
(c) Petitioner's attorney shall certify at hearing that the natural parent has received a copy of the consent of adoption which he/she signed.
Rule 15.4A. Involuntary Termination of Parental Rights. Notice.
A copy of the notice of the hearing prescribed by section 2513(b) of the Adoption Act shall be a part of each petition. Service of the notice of hearing shall be as prescribed by Pa.O.C. Rule 15.6.
Rule 15.4B. Involuntary Termination of Parental Rights. Service.
(a) Where service is attempted by registered mail at the natural parent's last known address pursuant to Pa.O.C. Rule 15.6 and the post office's return indicates that service was not made, petitioner may petition the Court to order service by publication.
(b) A petition for publication must outline efforts made by petitioner through postal authorities, relatives, mutual friends, or other means to locate the present address of the natural parents.
(c) Where the Court orders service by publication, it shall be made in a newspaper of general circulation one (1) time in the area of the natural parent's last known address. Proof of publication must be submitted at the hearing on the petition for involuntary termination.
(d) Where service of the hearing has been made by publication, the Decree Nisi shall be immediately published in the same newspaper of general circulation referred to in subparagraph (c) of this rule.
Rule 15.4C. Involuntary Termination of Parental Rights. Incarcerated Parent.
Where the natural parent is incarcerated, a petition for involuntary termination of that parent's parental rights must include a statement in the proposed Preliminary Order submitted with the petition setting the hearing date that if the natural parent desires to attend the hearing for the purpose of contesting the petition, he may do so by requesting the issuance of a Writ of Habeas Corpus ad testificandum and/or by requesting Schuylkill Legal Services to represent him.
Rule 15.4D. Contested Involuntary Termination of Parental Rights. Appointment of Counsel for Minor Child.
When the attorney for petitioners has reason to believe the petition for involuntary termination will be contested, the attorney for petitioners, at the time of presentation of the petition or as soon thereafter as there is reason to believe the petition will be contested, shall request the Court to appoint counsel for the minor child or children in accordance with Section 2313 of the Adoption Act.
Rule 15.5A. Adoptions.
(a)(1) When a Report of Intention to Adopt has been filed, a Petition for Adoption must include in all cases a statement that petitioner's attorney has made arrangements for a public child care agency or a consenting private child care agency or appropriate person designated by the Court to perform a Home Investigation on the adopting parent(s).
(i) If a public or private child care agency is to be used to perform the study, counsel for petitioners must provide that agency with a copy of the Report of Intent to Adopt, or other similar information and take whatever steps are necessary to cause the required Home Investigation to be sent directly to the Orphans' Court Division.
(ii) If an appropriate person is to be designated by the Court to perform the study, counsel for petitioners shall seek such appointment by presenting a motion and proposed order along with the petition for adoption. Subsequent thereto, counsel shall supply information and take whatever steps are necessary to cause the required Home Investigation to be sent directly to the Orphans' Court Division.
(2) A Home Investigation should contain in all cases:
(i) A report from the agency/designated person outlining the investigation made into the adopting parents' background and character;
(ii) A report of criminal history from the Pennsylvania State Police; and
(iii) A certification from the Pennsylvania Department of Public Welfare certifying that the proposed adopting parent(s) are not registered as the perpetrator(s) of a founded or indicated report of child abuse.
(3) Where the Petition for Adoption contains the consent of the natural parent whose parental rights have not previously been terminated, petitioner's attorney shall certify at the hearing that the natural parent has received a copy of the consent of adoption which he/she signed.
RULE 17: SHORT TITLE Rule 17.1A. Short Title.
These rules shall be known as Rules of the Court of Common Pleas of Schuylkill County, Orphans' Court Division, and shall be cited as Sch.Co.O.C. Rules.
[Pa.B. Doc. No. 96-136. Filed for public inspection February 2, 1996, 9:00 a.m.]
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