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PA Bulletin, Doc. No. 05-1381

THE COURTS

JUNIATA AND PERRY COUNTIES

Repeal and Adoption of Rules of Orphans' Court Procedures; No. 240 of 2005; No. 2005-18

[35 Pa.B. 4088]

Order

   And Now, June 27, 2005, it is hereby ordered and decreed that all Juniata/Perry County Rules of Orphans' Court Procedure filed prior to this date are repealed effective the date that the rules herein become effective. The Court hereby adopts the following Perry/Juniata County Rules of Orphans' Court Procedure to be effective as follows:

   (1)  All of the following local rules shall be effective 30 days after publication in the Pennsylvania Bulletin. It is further ordered that the District Court Administrator shall file:

   (a)  seven (7) certified copies of the Local Rules with the Administrative Office of Pennsylvania Courts,

   (b)  two (2) certified copies to the Legislative Reference Bureau for publication in the Pennsylvania Bulletin,

   (c)  one (1) certified copy to the Civil Procedural Rules Committee, and

   (d)  the Local Rules shall be kept continuously available for public inspection and copying in the Office of the Prothonotary and upon request and payment of reasonable costs of reproduction and/or mailing the Prothonotary shall furnish to any person a copy of the requested Local Rules.

By the Court

C. JOSEPH REHKAMP,   
President Judge

Local Rules of Orphans' Court Procedure

Rule 1.2.1 Certificates of Appointment of Fiduciary

   The clerk of the Orphans' Court Division shall not issue a certificate of the appointment of any fiduciary until the security, if required by the court, has been entered.

Rule 1.2.2 Corporate Sureties. Approval

   Surety companies duly authorized to do business in this Commonwealth may become surety on any bond or obligation required to be filed in the court; provided that a current certificate of the right to do business, issued by the Insurance Department of this Commonwealth, shall be on file with the Prothonotary; and provided, further, that no bond shall be executed by any surety company after May 1 of any year, until such certificate, issued after March 31 of that year, shall have been filed with the court.

Rule 6.1.1 Procedure under § 3102. Probate, Estates and Fiduciaries Code of 1972.

   (a)  Contents of petition. A petition under section 3102 of the Probate, Estates and Fiduciaries Code of 1972 (20 P. S. Sec. 3102), for the settlement of a small estate shall set forth

   (1)  the name, date of death, and residence of decedent;

   (2)  the name and address of the petitioner, his relationship to the decedent and whether or not he formed a part of decedent's household at the date of his death;

   (3)  if petitioner be the surviving spouse, the date and place of the ceremonial marriage, and the name and official capacity of the person who performed the ceremony; or, in case of a common law marriage, all averments necessary to establish the validity of such a marriage;

   (4)  whether the decedent died testate or intestate; where, when and to whom letters were granted, and the amount of bond given by the personal representative;

   (5)  the names, relationships and a brief description of the interest of all persons entitled to share in the decedent's estate under the will or intestate laws, stating which are minors, incompetents or deceased, with the names of their fiduciaries, and whether any of them has received or retained any property of the decedent by payment of wages under section 3101 of the Probate, Estates and Fiduciaries Code (20 P. S. Section 3101), or otherwise;

   (6)  the person entitled to the family exemption, and the facts on which the claim is based;

   (7)  an itemized statement of the property of the decedent and an appraisal thereof;

   (8)  the disbursements made prior to the filing of the petition; the date and name of the person to whom paid; and the nature and amount of each payment;

   (9)  the names of all unpaid claimants of whom the petitioner has notice or knowledge, the nature and amount of each claim, and whether such claims are admitted;

   (10)  that a schedule of assets and deductions for inheritance tax purposes has been filed with the register; the amount of any inheritance tax assessed; and the date of payment thereof;

   (11)  that ten 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; and

   (12)  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 his surety, if letters have been granted and advertised.

   (b)  Exhibits. The following exhibits shall be attached to the petition:

   (1)  a copy of the decedent's will;

   (2)  consents of the surety, and of unpaid beneficiaries, heirs and claimants who consent thereto;

   (3)  a copy of the notice given; and

   (4)  the inheritance tax voucher, or in lieu thereof a statement from the inheritance tax department that no tax is due.

   (c)  Appraisal. No formal appraisal is required, unless ordered by the court.

Rule 6.1.2 Procedures under § 3546. Probate, Estate and Fiduciaries Code of 1972.

   (a)  Contents of petition. A petition under section 3546 of the Probate, Estates and Fiduciaries Code of 1972 (20 PS Section 3546) for the determination of title shall set forth

   (1)  the name of the petitioner and his relationship 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, and parties in interest; if the heirs of the decedent are unknown, a copy of the notice given to the Attorney General; and

   (2)  a copy of decedent's will.

Rule 8.1.1 Pre-Hearing conference

   The Auditor shall schedule a pre-hearing conference at which time the accountant or his attorney shall present to the auditor all written notices of claims of creditors, legatees, devisees, next of kin and others interested in the estate given the accountant and also a list of all other creditors of which he has any information and mention the claims of creditors he recommends for allowance.

Rule 8.1.2 Notice of Hearings

   Notice of the initial hearing shall be given by mailing by regular mail to the counsel of record for the Estate, counsel of record for the exceptant(s), each heir at the last known address, to each unpaid creditor and to the Department of Revenue, the Department of Welfare, Bureau of Public Assistance, or other agency of the Commonwealth of Pennsylvania, if such Department or agency has, according to the information of the Clerk, a claim against the estate to be audited. If a party is unrepresented, notice shall be mailed to the last known address of record.

   To the extent possible, the auditor shall expedite the hearings, and any party in interest may apply to the Court for an order on the auditor to proceed and file a report or else give the reasons for the alleged delay, if there be unreasonable delay.

Rule 8.2 Filing of Report--Reserved.

Rule 8.3.1 Form of Auditor's Report

   A.  It shall be the duty of an auditor to keep, and file with his report, minutes setting forth the notices given, the appearances before him at the several hearings he may hold, and other proceedings had before him, including the testimony taken. At each meeting he shall note the appearance of all parties in interest and their attorneys.

   B.  If objection is made to a witness or to a question put to him or his answer to any question or to any documentary evidence, the offer and purpose of the evidence, the objection and reasons therefor, and the ruling of the auditor shall all be reduced to writing. If the auditor sustains the objection, he shall, nevertheless, take the testimony and reduce it to writing or receive the documentary evidence, unless the witness is clearly incompetent or the evidence is clearly inadmissible or the question or answer is impertinent, frivolous or scandalous. It must always appear who offered a witness or documentary evidence, who made the objection, and whether the examination of the witness is in chief, on cross-examination, in rebuttal, or in sur-rebuttal.

   C.  If any party desires to present suggestions for findings of fact and/or conclusions of law, he shall indicate such desire at the close of the testimony and present them to the auditor within ten days; otherwise any such suggestions shall not be considered.

   D.  When a claim of a creditor, legatee, devisee, next of kin or other person is disallowed by the auditor, no costs shall be allowed such claimant, and the auditor may direct such claimant to pay the witness costs of the adverse party incurred in defense against such claim and/or part or all of the costs of audit. Such order of the auditor may be enforced, on application to the Court, by a citation to show cause.

Rule 8.4.1 Form of Master's Report--Reserved

Rule 8.5.1 Transcript of Testimony

   All hearings shall be transcribed. The transcript of the hearing(s) shall be filed by the stenographer with the Office of the Register of Wills and shall be made a part of the record. A transcript of the pre-hearing conference is not required.

Rule 8.6.1 Notice of Filing Report

   When auditor has his report completed, he shall present it to the Court along with a proposed Decree Nisi for consideration by the Court. A copy of said report and the signed Decree Nisi shall be mailed via regular mail to all attorneys who appeared before him and all exceptants who appeared without attorneys.

Rule 8.7.1 Confirmation of Report

   When an auditor's report is presented to the Court, it will be confirmed nisi and filed. Exceptions to the Report must be filed with fifteen (15) days of the date of the Decree Nisi. When no exceptions to an auditor's report are filed within the said period, the Clerk of the Court shall endorse the absolute confirmation on the report.

Rule 8.8.1 Security for Expenses and Fees

   The Estate and exceptant(s) shall each provide to the Auditor an estimate of the amount of time needed to present their case. Thereafter, the Auditor shall recommend to the Court an amount to be held in escrow by the Register of Wills. Said deposit shall be applied to the Auditor's bill of cost as submitted by the Auditor and approved by the Court.

   If exceptions are filed to the Report prior to confirmation absolute or if an appeal is filed after the confirmation, the party filing the same must pay in full all outstanding auditor's fees and costs as set forth on the Auditor's Bill of costs, regardless of the recommendation of the Auditor as to allocation of the payment. The Court may address the issue of auditor's fees and costs at the time of the disposition of the exceptions or appeal.

Rule 10.1.1 Certification of Record

   (a)  Contents of petition. A petition to fix a date for a hearing from a certification of record to the court from the register shall be promptly presented to the court and shall set forth:

   (1)  the nature of the proceedings before the register;

   (2)  the basis for the certification of record; and

   (3)  the names and addresses of all parties in interest including those who have not been made parties to the record.

   (b)  Certification by register. When the record has been certified by the register, the petition required by subparagraph (a) shall be presented by the party who instituted the contest, or, in special circumstances, as the court may direct.

   (c)  Citation. Upon allowance of the petition, a citation will be issued, directed to all parties in interest, including those not represented on the record, to show cause why the matter upon which the certification is requested or based, as the case may be, should not be determined by the court on a day certain therein indicated. (See Supreme Court Orphans' Court Section 10, Rule 1.)

Rule 10.2.1 Appeals

   (a)  Contents of petition. When an appeal is taken from a judicial act of, or proceeding before, the register, the appellant shall promptly present a petition to the court, which shall set forth:

   (1)  the nature of the proceeding before the register;

   (2)  the basis for the appeal; and

   (3)  the names and addresses of all parties in interest, including those who have not been made parties to the record.

   (b)  Citation. If the petition sets forth a prima facie case, a citation will be issued, directed to all parties in interest, including those not represented on the record, to show cause why the appeal should not be sustained and the judicial act or proceeding complained of be set aside.

Rule 11.2.1 Grant of Jury Trial

   (a)  On appeal from the register, or in a proceeding removed from or certified by the register, the court in its discretion may impanel a jury at any stage of the proceedings and forthwith proceed with a jury trial.

   (b)  On appeal from the register, or in a proceeding removed from or certified by the register, the court in its discretion may, either at the conclusion of all the evidence presented by proponents and contestants or before all such evidence has been produced, when it is satisfied that sufficient evidence has been presented so as to warrant, grant a jury trial at a future date.

   (c)  If a jury trial is granted, as provided in subparagraph (a) or (b) hereof, the court shall enter a decree specifying the issues to be tried, which may be in the form agreed upon by the parties, or as the court shall determine.

[Pa.B. Doc. No. 05-1381. Filed for public inspection July 22, 2005, 9:00 a.m.]

   


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