THE COURTS
LEHIGH COUNTY
Orphans' Court Rules; File No. AO 2014-0002
[44 Pa.B. 2201]
[Saturday, April 12, 2014]
Administrative Order And Now, this 20th day of March, 2014, the following are adopted as the Local Rules of the Orphans' Court Division of the Court of Common Pleas of Lehigh County, Pennsylvania, effective thirty (30) days after publication in the Pennsylvania Bulletin. All other Local Rules of the Orphans' Court Division, to the extent they are inconsistent herewith, are superseded here.
By the Court
CAROL K. McGINLEY,
President Judge
Rules of the Orphans' Court Division of the Court of Common Pleas of Lehigh County Integrated with Supreme Court Orphans' Court Rules
Adopted March 20, 2014
Effective May 15, 2014
Local Rules of the Orphans' Court of
Lehigh County
(Integrated with Pennsylvania
Supreme Court Orphans' Court Rules)
The current website for electronic access to
the forms is found at
http://www.aopc.org./Index/Forms/IndexForms.asp.The explanatory notes, comments and source of the Supreme Court Rules have not been repeated here. See full State Rules for those.
Local Rules 1 through 13 herein are revised as of May 15, 2014.
Local Rules for Supreme Court Rule 14 herein are as revised as of April 1, 1981 and reflect the Supreme Court Rules in effect at that time.
Local Rule 15 herein is revised as of June 12, 1989.
Any reference to a Supreme Court Rule in the section for Rules 14 and 15 may not reflect the most current Supreme Court Rule.
Rule 1.2-1. Local Rules.
All local rules adopted by the Orphans' Court Division of the Court of Common Pleas of Lehigh County shall be known as Lehigh County Orphans' Court Rules and shall be cited as ''Leh. O.C. Rule ______ .''
Rule 1.3-1. Local Forms.
From time to time, the Court may approve forms to facilitate practice and procedure before the Court and such forms are maintained at the Court's website at www.lccpa.org/orphans.
Rule 2.1-1. Number. Gender. Tense.
The singular shall include the plural, and the plural the singular. Words used in the masculine gender shall include the feminine and neuter. Words used in past or present tense shall include the future.
Rule 2.3-1. Additional Definitions.
(a) ''Code'' means the Decedents, Estates and Fiduciaries Code, 20 Pa.C.S.A. § 101 et seq., as amended.
(b) ''Rule'' means any rule of Court promulgated by the Supreme Court of Pennsylvania or the Orphans' Court Division of the Court of Common Pleas of Lehigh County.
(c) ''Except as otherwise provided'' means ''except as otherwise provided by statute, by Supreme Court rule, or by specific rules or special order of this Court''.
(d) ''Director'' means the Director of Orphans' Court Operations.
(e) ''Register of Wills'' means the Clerk of Judicial Records—Register of Wills Division.
Rule 2.4. Business of the Court.
Rule 2.4-1. Legal Papers.
All legal papers shall conform to the following requirements:
(a) Be typewritten or printed on 8 1/2 inch by 11 inch white paper (except for dividers and similar sheets) of good quality;
(b) The first sheet shall contain a 3-inch space from the top of the paper for all court stampings, filing notices, etc.;
(c) The text shall be double spaced, but quotations more than two lines long may be indented and single spaced. Margins must be at least one inch on all four sides;
(d) The lettering shall be clear and legible and no smaller than point 12. The lettering shall be on only one side of a page, except that exhibits and similar supporting documents may be lettered on both sides of a page;
(e) Be firmly bound by means of a metal binder clip only and numbered consecutively at the bottom;
(f) If filed by an attorney, shall be endorsed with his name, Supreme Court Identification Number, office address, telephone number and facsimile number; and
(g) If filed pro se (an unrepresented party), shall be endorsed with his name, address and telephone number.
Rule 2.4-2. Hearing and Argument Lists.
The Court will schedule Hearing and Argument on any matter as needed and at the discretion of the Court. Any interested party may request the Court to schedule hear- ing or argument by filing a praecipe setting forth that request.
Rule 2.4-3. Briefs.
In all matters where briefs are to be filed, an original and one copy shall be filed with the Clerk of Orphans' Court and served upon the other parties in interest in accordance with these Rules. All briefs shall include proper legal citations conforming with the Uniform System of Citations and contain:
(a) A title page upon which shall appear the caption of the case, including its file number; a designation of the party upon whose behalf the brief is filed and of the matter involved;
(b) A statement or counter-statement of the questions involved; in which each question involved shall be set forth clearly and succinctly in a single sentence which can be answered either ''Yes'' or ''No.'';
(c) A statement or counter-statement of the case;
(d) Summary of argument;
(e) Argument, in which each question involved shall be the subject of a separate and distinct subdivision;
(f) A short conclusion stating the precise relief sought; and
(g) The signature of the attorney or pro se litigant filing the brief.
Rule 2.4-4. Time for Filing Briefs.
(a) The brief of the moving party shall be filed and served two (2) weeks prior to argument or as otherwise directed by the Court.
(b) The brief of the responding party shall be filed and served one (1) week prior to argument or as otherwise directed by the Court.
Rule 2.4-5. Oral Argument. Procedure.
In all arguments, counsel for the moving party or parties shall present oral argument which shall be followed by oral argument by counsel representing the party or parties having an adverse interest and then by rebuttal by counsel for the moving party. Not more than one attorney shall be heard on any side of an issue, except that if several parties have adverse interests, counsel for each such party shall be heard. Each attorney shall be limited to thirty (30) minutes for the presentation of oral argument unless such time be shortened or extended by the Court.
Rule 2.5. Attorneys. Appearance.
(a) Entry of Appearance.
(1) Every attorney employed in any proceeding shall enter his or her appearance by written praecipe or by endorsement on papers filed.
(2) Every attorney presenting or filing any paper with the Court or the Clerk shall endorse thereon his or her name, Supreme Court identification number, office address and telephone number.
(b) Withdrawal of Appearance.
An attorney's appearance for a party may not be withdrawn without leave of court unless another attorney has entered or simultaneously enters an appearance for the party and the change of attorneys does not delay any stage of the litigation.
Rule 2.6. Sureties.
Rule 2.6-1. Individuals and Attorneys as Sureties.
(a) Court Approval Required.
No individual or attorney shall serve as surety on a bond of a fiduciary until he has submitted to the Court a petition for approval as provided in subparagraph (b) hereof and the same has been approved by the Court.
(b) Content of Petition for Approval.
Every request for the approval of an individual or attorney as surety shall consist of a petition by the proposed surety, under oath, setting forth:
(1) His name, residence address, occupation and marital status;
(2) The location of real property owned by him, or so much thereof as may be sufficient;
(3) The place, book and page of the recording of the deed thereto;
(4) The name in which title is held and a statement that no other person has any interest in the real property, and that the title is not subject to any express or constructive trust;
(5) The encumbrances and the amounts thereof, if any, upon the real property;
(6) The current tax assessments of any real property included in the affidavit;
(7) A list of all other undertakings upon which the individual is surety; and
(8) A statement of financial worth setting forth in detail all of his gross assets and all of his liabilities.
(c) Bond and Confession of Judgment.
Whenever a party in interest is authorized to execute his individual bond or whenever individual surety is approved, the bond shall contain a warrant of attorney authorizing the Court to confess judgment with or without default, and the party shall be responsible for ensuring that judgment thereon is confessed and entered of record in the office of the Clerk of Judicial Records—Civil Division at the earliest moment following the Court's approval of the bond. Costs shall be borne by the principal.
(d) Court Approval of Bond Required.
Whenever authority is granted by the Court for the entry of individual surety, the bond shall be submitted to the Court for approval before the same is filed of record.
Rule 2.6-2. Corporations as Sureties.
Surety companies duly authorized to do business in this Commonwealth may become surety on any bond or obligation required to be filed with the Court.
Rule 3.2. Petition, answer and reply.
(a) On or before the return day fixed in the citation or order, and in all other cases within twenty days after service upon him of a copy of any petition, a party opposing the granting of the prayer of the petition shall file an answer admitting or denying the averments of fact of the petition and specifically stating his objections thereto and averring the facts relied upon by him.
(b) Within twenty days after service upon him of a copy of an answer, a petitioner may file a reply thereto and admit, deny or avoid the facts averred in the answer.
Local Note: Section 764 of the Code requires that ''a citation shall direct the party (or parties) named therein to file a complete answer under oath to the averments of the petition on or before a day certain which shall be not less than ten days after the service thereof.'' (Italics supplied.) Consequently, where a citation or order has issued the return day fixed in the citation or order shall determine the time within which an answer to the petition shall be filed. In all other cases an answer shall be filed within twenty days after service of the petition as prescribed in Pa.O.C. Rule 3.2
Rule 3.2-1. Limitation of Pleadings.
The pleadings in the Orphans' Court Division shall be limited to a petition, an answer, a reply, preliminary objections, and, when facts are properly alleged in preliminary objections, an answer to preliminary objections.
Rule 3.2-2. Signature and Verification.
All pleadings, including every petition, answer and reply, containing an allegation or allegations of fact, shall be signed by the petitioner or his attorney and attested either by an affidavit or by a verified statement of the petitioner setting forth that it is subject to the penalties of 18 Pa.C.S.A. § 4904 (relating to unsworn falsifications to authorities). When it is impractical to comply with the foregoing, the pleading may be signed and attested by someone familiar with the facts, in which case the reason for the failure of the petitioner to sign shall be set forth in the attestation.
Rule 3.4-1. Exhibits. Certification.
(a) There shall be attached to all petitions as exhibits the originals or copies of all wills, codicils, agreements and other written instruments relied upon.
(b) The signature of an attorney to a petition shall constitute a certification by that attorney that all copies of written or printed instruments, records or documents which are not certified or authenticated, are true and correct copies of the original.
Rule 3.4-2. Exhibits. Foreign Language. Translation.
Whenever a written instrument in a language other than English is attached to a petition as an exhibit, it shall be accompanied by an English translation sworn to or affirmed by the translator to be a true and correct translation of the original.
Rule 3.4-3. Consents. Joinders. Averments.
All petitions shall aver that parties in interest are petitioners, or that all consents or joinders of all necessary parties are attached to the petition, or set forth the names of all necessary parties whose consents, approvals or joinders are attached to the petition and the names of all necessary parties whose consent or joinders are not attached to the petition.
Rule 3.4-4. Consents. Joinders. Form. Acknowledgment.
(a) Whenever a party other than a petitioner desires to consent to or join in the prayer of a petition, there shall be appended to the petition, a written ''Consent'' or ''Joinder'' signed by the parties substantially in the following form:
I, ______ , having read and considered the contents of the foregoing petition, do herewith waive the benefit of all requirements of notice of the presentation, or service upon me, of said petition, do authorize the Court to note my general appearance in said proceeding as though I had appeared personally or by counsel, do herewith waive all objections to the Court's jurisdiction over my person, and do herewith [consent to the entry of an order as prayed for in said petition] or [join in the prayer of said petition].
(b) All ''Consents'' and ''Joinders'' shall be acknowledged before a notary public or other officer duly authorized to take the same.
The acknowledgment shall be substantially in the following form:
COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF ______ ) On ______ , 20__ before me a ______ in and for ______ , personally appeared ______ who was known to me (or satisfactorily proven) to be the person whose name is subscribed to the foregoing (consent) (joinder) and acknowledged the same to be ____ act and deed.
IN WITNESS WHEREOF, I have hereunto set my hand and ______ seal the day, month and year aforesaid.
_________________
Notary Public
My Commission Expires:Rule 3.4-5. Decree. Form.
(a) Every decree attached to a petition shall be set forth or commenced upon a separate page on which shall appear the caption of the case, a heading consisting of the word ''Decree'' or the word ''Order'', the contents of the decree, and a place for the Court's signature.
(b) In all cases the decree or order shall be appended to the face of the petition, not to the back thereof.
Rule 3.5-1. Citations, Rules to Show Cause and Notice of Filing.
(a) Citation to Obtain Jurisdiction of a Person.
When jurisdiction over the person of the respondent is required and has not previously been obtained, a citation to obtain such jurisdiction together with a copy of the Court's preliminary order shall be served in the manner set forth in Section 765 of the Code and proof of service thereof shall conform to Section 766 of the Code. The petition requesting the issuance of a citation together with a proposed order may be filed with the Clerk or presented in Orphans' Court Motions Court. If the preliminary order is signed by the Court at Orphans' Court Motions Court, counsel shall file said order and the petition and pay appropriate fees, after which a citation will issue.
In the case of a petition for the appointment of a guardian for an incapacitated person filed under 20 Pa.C.S.A. § 5511, see paragraph a of that section for additional service requirements.
Local Note: See Pa.R.C.P. Rule 400 et. seq. regarding service on residents of the Commonwealth of Pennsylvania.
(b) Citation, Rule to Show Cause and Notice of Filing in Actions in Rem.
In all proceedings in which jurisdiction of the person is not required (i.e., in all proceedings in rem where jurisdiction of the Court attaches because of the presence of property within the jurisdiction of the Court) the proceedings may be by notice to all parties in interest, whether within or without the Commonwealth of Pennsylvania, and the initial notice may be in the form of a citation, a rule to show cause or a written notice of filing. In all such cases, service upon a party of:
(1) the citation together with a copy of the Court's preliminary order;
(2) the rule to show cause; or
(3) the notice of filing together with a copy of the proposed order of court, and proof of service thereof, shall be as provided generally for notice in Rule 5, Notice unless a statute or other Rule requires or permits a different method of notice (e.g. Rule 15, Adoptions).
A petition for which a notice of filing is to be served as aforesaid shall first be filed with the Clerk. A petition requesting the issuance of a citation or a rule to show cause together with a proposed order may be filed with the Clerk or presented in Orphans' Court Motions Court. If the preliminary order is signed by the Court at Orphans' Court Motions Court, counsel shall thereupon file the order and petition and pay the appropriate fees.
Local Note: A citation is not, nor should it be used as, a substitute for the notice required in conjunction with the filing of accounts (See Rule 6.3). Many special petitions are in rem proceedings (See Rule 12) and require only the issuance of a rule to show cause or a written notice of prior filing with the Clerk, not the issuance of a citation.
(c) Supplemental Petitions and Motions.
All supplemental petitions or motions to a petition already filed pursuant to subsection (a) or (b) shall be by notice in the form of a rule to show cause or written notice of filing. In all such cases, service upon a party of the rule to show cause or written notice of filing (together with a copy of the proposed order of court), and proof of service thereof, shall be as provided in Rule 5, Notice.
(d) Rule To Show Cause.
When notice of any proceeding is in the form of a rule to show cause (rather than a citation or written notice of filing), the rule shall be substantially in the form set forth in sub-section (h)(1) below and shall include, in bold face type:
(1) a statement that any party opposed to the granting of the prayer of the petition or motion shall file a written answer or other responsive pleading thereto with the Clerk on or before the return date fixed in the rule; and
(2) a statement that if the party fails to file a timely written answer or other responsive pleading, the averments of fact set forth in the petition or motion shall be deemed admitted and the Court, on its own motion or upon praecipe may enter an order granting the prayer thereof without further notice to the party.
(e) Notice.
When notice of any proceeding is in the form of a written notice of filing (rather than a citation or rule to show cause) the notice shall be substantially in the form set forth in sub-section (h)(2) below and shall include, in bold face type:
(1) the date on which the petition or motion was filed with the Clerk;
(2) a statement that any party opposed to the granting of the prayer of the petition or motion shall file a written answer or other responsive pleading thereto with the Clerk within twenty (20) days after service (or such other period as specially set by the Court or other rule, see Rule 3.2); and
(3) a statement that, if the party fails to file a timely written answer or other responsive pleading, the averments of fact set forth in the petition or motion shall be deemed admitted and the Court, on its own motion or upon praecipe may enter an order granting the prayer thereof without further notice to the party.
(f) Praecipe.
In the absence of a responsive pleading and/or after the pleadings have closed, any party may file a praecipe in the form set forth in sub-section (h)(3) below requesting that the Court proceed on the motion or petition. A copy of the praecipe shall be sent to each party by regular mail.
(g) Alternative Service.
Whenever service cannot be made as otherwise provided in this Rule and the facts thereof are made known to the Court by an affidavit supplementing the original petition or motion sought to be served, the Court may enter an order awarding an alias or pluries citation or other order (which may provide for service by publication or other means) as the Court deems necessary.
(h) Forms.
(1) Rule To Show Cause—See Appendix A.
(2) Notice—See Appendix B.
(3) Praecipe—See Appendix C.
(i) Uncontested Petitions and Motions.
Applications, petitions, motions or other miscellaneous business certified as uncontested may be filed with the Clerk or presented in Orphans' Court Motions Court.
Rule 3.5-2. Answer. New Matter.
Any defense which is not a denial of the averments of fact set forth in the petition shall be set forth in the answer under the heading ''New Matter.''
Rule 3.5-3. Reply. When Required.
A reply shall be required only when new matter is set forth in the answer.
Rule 3.5-4. Preliminary Objections. Time for Filing. Answer. Briefs. Argument.
(a) Preliminary objections shall be filed on or before the return day fixed in the citation or order and in all other cases within twenty (20) days after service of the petition.
(b) Preliminary objections shall be available to any party, but shall be limited to questions of law, of form, or of jurisdiction.
(c) Preliminary objections shall not contain averments of fact except in the case of an objection raising a question of jurisdiction.
(d) An answer to preliminary objections shall be limited to admissions or denials of averments of fact concerning jurisdiction set forth in the preliminary objections and shall be filed within twenty (20) days after service of the preliminary objections, otherwise an answer to preliminary objections shall not be filed.
(e) Within twenty (20) days after preliminary objections not raising issues of fact have been filed, the objector shall file his or her brief with the Clerk and serve a copy thereof upon all other parties in interest, failing which the preliminary objections shall be dismissed as of course. Upon receipt of a brief timely filed, the Clerk shall list the case for argument and notify all parties in interest. Answering briefs shall be filed with the Clerk not less than one (1) week prior to the date for argument.
(f) When preliminary objections involve a question of jurisdiction based on questions of fact and a hearing is required prior to argument, the procedure shall conform to Rule 2.4-2 supra.
Rule 3.5-5. Pleadings. Disposition.
(a) Failure to Answer.
If the respondent fails to file an answer, as herein provided, the averments of fact set forth in the petition shall be deemed admitted and the case shall be at issue. The Court may then, sua sponte or upon praecipe, with or without a hearing, enter a decree granting the prayer of the petition.
(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 new matter shall be deemed admitted and the case shall 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 shall be deemed admitted and the case shall be deemed at issue. The Court may then, sua sponte or upon praecipe, with or without argument, enter an appropriate decree.
(d) Judgment on the Pleadings.
(1) In an appropriate situation, judgment on the pleadings will be entered upon motion of any party entitled thereto.
(2) All motions for judgment on the pleadings shall be accompanied by a brief in support thereof.
Rule 3.6-1. Discovery.
(a) The practice relating to discovery shall be by special Order of the Court in each case.
(b) Leave of Court must be granted to obtain discovery of any kind or the perpetuation of testimony. Requests may be made by petition or oral motion, with proper notice or the consent of all parties.
(c) A petition to perpetuate testimony shall include the averments required by Pa.R.C.P. 1532.
Rule 3.6-2. Pre-hearing Conference.
(a) In any proceeding before the Court, the Court may direct the parties and counsel to appear for a pre-hearing conference.
(b) At least five (5) business days prior to the date of the pre-hearing conference, each party shall file with the Clerk and serve upon each other party a written pre-hearing statement which shall contain:
(1) A listing of the legal and factual issues and relief requested;
(2) The names and addresses of all witnesses to be called during the hearing and a statement as to whether each witness is a fact witness or an expert witness;
(3) An identification of all exhibits to be used at any hearing;
(4) Any list of proposed stipulations or agreements;
(5) Any proposed amendments to pleadings;
(6) Such other matters as may aid the Court in the disposition of this action;
(7) An identification of hearing counsel, along with counsel's name, address, email address, telephone number and facsimile number;
(8) An estimate of the length of the hearing; and
(9) A Statement as to the status of settlement negotiations.
Rule 5.1-1. Written Notice.
Except as otherwise provided, all notices shall be in writing and signed by the party or his counsel of record.
Rule 5.1-2. Service of Notice on Attorney.
Notice served personally on an attorney of record, or on an employee at his office, or by mail addressed to his office, or to an address endorsed upon pleadings or accounts shall be notice to the party whom he represents, except when personal service on the party is specifically required by Act of Assembly, by rule of court or special order of court. A notice may also be served on an attorney of record by facsimile transmission, or e-mail if the parties agree thereto, or if a telephone number, facsimile, or e-mail address is included on an appearance or prior legal paper filed with the Court.
Rule 5.1-3. Service of Notice on Non-resident Personal Representative.
Notice upon a personal representative who is or becomes a non-resident of the Commonwealth may be made in accordance with the provisions of Section 5322(a)(7)(i) of the Judicial Code, 42 Pa.C.S.A. § 5322(a)(7)(i).
Rule 5.1-4. Service of Notice by Mail.
(a) Service of notice by mail in an in rem proceeding of the initial notice required by Rule 3.5-1(b) in the form of a citation, rule to show cause, or written notice of filing shall be by certified or registered mail.
(b) Except as otherwise provided, service of notice by mail, including but not limited to notice of audit pursuant to Rule 6.3, shall be made by ordinary mail, registered mail, or certified mail.
Rule 5.1-5. Notice by Publication.
(a) The Lehigh Law Journal shall be the legal periodical for the publication of all notices.
(b) A party may file a petition requesting leave of court to give notice in such manner other than that set forth in Rule 5.1(a), (b) and (c).
Rule 5.2-1. No Guardian or Trustee.
Whenever notice is to be given to a person who is not sui juris and for whom there is no guardian or trustee, notice shall be given by serving it upon him, if he is over fourteen (14) years of age, and, in all cases, upon:
(a) His agent under power of attorney;
(b) His spouse, if sui juris;
(c) His next of kin, if sui juris;
(d) The person with whom he resides or by whom he is maintained;
(e) The superintendant or other official of the institution having custody of him; or
(f) In such manner as the Court, by special order, may direct.
Rule 5.2-2. Absentees, Presumed Decedents and Unknown or Unascertained Persons.
Whenever notice is to be given to an absentee, presumed decedent or an unknown or unascertained person, it shall be given in such manner as the Court, upon petition by special order, shall direct.
Local Note: See ''Note'' following Pa.R.C.P. 430 re: ''good faith effort'' to discover correct address.
Rule 5.3-1. Time for Notice by Publication.
Whenever notice of the intention to do any act, including the sale of real property, is given by publication, the last published notice shall be not less than ten (10) days prior to the return day, the day of hearing, the day fixed for the sale or the day fixed for the doing of said act. (See also Pa.O.C. Rule 4.2.)
Rule 5.3-2. Completion of Service.
Service by mail, if perfected, is complete upon mailing. Service by facsimile is complete when transmission is confirmed as complete.
Rule 5.4-1. Return of Notice. Form of Affidavit.
A return of notice shall be filed with the Clerk on or before the date set for the occurrence of the event for which notice has been given. The form of affidavit shall substantially conform to the forms appended to this section as follows:1
(a) If notice was given by personal service, the affidavit shall be in the following form:
(CAPTION)
COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF LEHIGH ) NAME , being duly sworn according to law, deposes and says that he personally served the notice attached hereto upon NAME , by handing him a true and correct copy thereof,2 on DATE , at TIME , at ADDRESS , and making known the contents thereof and further that the facts are true and correct.
/s/ _________________
Sworn to and subscribed
before me this ______ day of
______ , 20__ ._________________
Witness(b) If notice was given by mail, facsimile or electronic transmission, the affidavit shall be substantially in the following form:
(CAPTION)
COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF LEHIGH ) NAME , being duly sworn according to law, deposes and says that he served the notice attached hereto on NAME , by (Insert form of service and whether a return receipt was requested) on DATE , if applicable, that attached hereto is the signed return receipt card which accompanied the mailing3 4 ; and that the above facts are true and correct.
/s/ _________________
Sworn to and subscribed
before me this ______ day of
______ , 20__ ._________________
Witness(c) If notice was given by publication, an affidavit in the following form shall be filed:
(CAPTION)
COMMONWEALTH OF PENNSYLVANIA ) ) ss: COUNTY OF LEHIGH ) NAME , being duly sworn according to law, deposes and says that the present address of NAME is unknown; [that a true and correct copy of the notice attached hereto was forwarded to NAME , at his last known residence at ADDRESS , by mail on DATE ; that said mail was returned unopened and undelivered by the post office; that said unopened and undelivered letter is attached hereto;]5 that notice was given by publication once a week for three (3) successive weeks on DATE , DATE , and DATE in the PUBLICATION , a newspaper of general circulation published in the LOCATION OF PUBLICATION , and by publication one (1) a week for three (3) successive weeks on DATE , DATE , and DATE in the PUBLICATION , the legal periodical published in LOCATION OF PUBLICATION ; that attached hereto are the proofs of publication of said notice in said newspaper and legal periodical; and that the facts set forth herein are true and correct.
/s/ _________________
Sworn to and subscribed
before me this ______ day of
______ , 20__ ._________________
WitnessRule 6.1-1. Form. Additional Requirements.
(a) Form. General.
Accounts shall conform to the Uniform Fiduciary Accounting Principles and Model Account format approved by the Pennsylvania Supreme Court and any amendments and supplements thereto, except that the following schedules shall reflect investments alphabetically, with all activity for each investment reported chronologically below the listing for that investment: Receipts, Gains or Losses On Sales Or Other Distributions, Investments Made, Changes In Holdings and Balance On Hand. See Appendix D for example.
(b) Form. Title of Accounts.
(1) All accounts shall be designated consecutively, as the case may be, viz.: First and Partial, Second and Partial, etc.; First and Final, Second and Final, etc.;
(2) Accounts filed after the filing of a final account shall be designated ''First (Second, as the case maybe) Supplemental Account to (Title of the original account);
(3) When an account which has been filed is restated in its entirety, it shall carry the title of the original account with the words ''As Restated'' added;
(4) The titles ''Amended'' or ''Revised Account'' shall not be used.
(c) Form. Appointed Estates.
Assets appointed by the donee of a testamentary power and which must be accounted for by the fiduciary of the donee because they were awarded to him by a court of the donor's jurisdiction, shall be shown in an entirely separate account. Such assets shall not be included in an account of the donee's own estate unless the court of the donor's jurisdiction has adjudicated a blending by the donee of the appointed estate with his own. Separate accounts of the appointed estates shall be captioned in the name of the estate of the donor of the power. The caption shall also set forth accountant's name, describing him as fiduciary of the donee, and the court which awarded the assets to accountant.
(d) Form Blending.
Items of distribution shall not be blended with credit items. Accounts containing such blending shall not be filed, and if filed, will not be confirmed.
(e) Form Supplemental Accounts.
Supplemental accounts shall conform to the original accounts in every detail, including form, execution and verification.
Rule 6.2-1. Caption. Accounts for Minors. Additional Content.
The caption of all accounts filed for the estates of minors shall set forth the date of birth of the minor.
Rule 6.3-1. Notice. Co-fiduciaries.
Written notice of the filing of the account and the call thereof for audit shall be given to all co-fiduciaries who do not join in stating the account in accordance with Rule 6.3-4 hereof and proof thereof filed in accordance with Rule 6.3-6 hereof.
Rule 6.3-2. Notice. Charitable Gifts.
(a) In every proceeding involving a bequest or devise to a charity or for a charitable use outside the Commonwealth of Pennsylvania, if notice is required pursuant to Rule 5.5, written notice of the filing of the account and of the call thereof for audit shall also be given to the Attorney General of the state wherein the legatee is domiciled.
(b) A clearance letter or certificate, if one has been issued by the Attorney General or Attorneys General, as the case may be, shall be submitted to the Court at or before the audit of the account.
Rule 6.3-3. Notice. Department of Revenue. United States Veterans' Administration.
Whenever under the provisions of Rules 6.7 and 6.8 hereof a copy of the account is required to be filed with the Department of Revenue of the Commonwealth of Pennsylvania or the United States Veterans' Administration, written notice of the filing of the account and the call thereof for audit in accordance with Rule 6.3-4 hereof shall accompany the account and proof thereof filed in accordance with Rule 6.3-6 hereof.
Rule 6.3-4. Notice. Additional Contents. Copies of Account and Petition for Adjudication.
Notices required by Rules 6.3, 6.3-1, 6.3-2 and 6.3-3 hereof shall, in addition to information required by Rule 6.3, include the following:
(a) Caption and file number of the estate;
(b) Title of account;
(c) Date and place of filing of the account;
(d) A statement that the party receiving notice shall be entitled to appear and be heard in person or by counsel at the call of the account for audit if he so desires;
(e) A complete, true and correct copy of the account and the petition for adjudication and distribution, including the statement of proposed distribution, including all exhibits appended thereto, shall accompany the notice of the filing of the account and of the call for audit, in the absence of a written waiver, to the following:
(1) Residuary heirs and legatees who have not joined in stating the account;
(2) Unpaid creditors or claimants who have given notice of their claims to the accountants or who are known to the accountants;
(3) A specific, pecuniary or general heir, legatee or devisee whose legacy or devise has adeemed or abated, in part or in full, or remains unpaid as of the filing of the account, except those who have joined in stating the account; and
(4) Such others as the Court may direct.
Rule 6.3-5. Notice. Time.
Whenever written notice of the filing of an account and the call thereof for audit is required to be given, at least three (3) full weeks shall elapse between the giving of such notice and the audit day. Whenever a guardian ad litem or a trustee ad litem is appointed within three (3) weeks of the audit date, then the audit date shall be continued if requested by the guardian ad litem or the trustee ad litem.
Rule 6.3-6. Notice. Return.
On or before the date for the call of the account for audit, the accountant, or his counsel, shall file with the Court a return of notice as prescribed in Rules 5.4 and 5.4-1.
Rule 6.3-7. Notice. Supplemental Accounts.
(a) Whenever a supplemental account is filed before the original account is called for audit, notice thereof shall be given as nearly as possible in accordance with Rule 6.3-4 and proof of notice filed in accordance with Rule 6.3-6, and, provided at least ten (10) days elapse between the giving of such notice and the day on which the original account is called for audit, the Court will audit both the original and supplemental accounts. In the event the aforementioned notice is not given or that the requisite ten (10) days between notice and the call for audit do not elapse, the Court will audit both accounts and a true and correct copy of the supplemental account will be served with the Court's adjudication and order as provided by Rule.
(b) Whenever a supplemental account is filed after the original account is called for audit, notice shall be given as the Court may direct.
Rule 6.4-1. Time for Filing with Clerk of Orphans' Court.
Accounts to appear on a particular audit list shall be filed not later than the closing date fixed for that audit list by the Court calendar.
Rule 6.4-2. Time for Filing. Supplemental Accounts.
When a final account has been filed for audit, a supplemental account of receipts and disbursements after such filing, conforming to the requirements of Rule 6 and 6.1-1 and signed by all of the accountants joining in stating said Supplemental Account, may be filed with the Clerk before, or with the Court at, the call of the final account for audit, or whenever the Court shall direct.
Rule 6.6-1. Accounting of an Agent.
The account of an Agent acting under a Power of Attorney shall be filed with the Clerk.
Rule 6.9-1. Statement of Proposed Distribution. Form. Contents.
A statement of proposed distribution shall include:
(a) A statement of the principal and income balances currently in the hands of the accountant for distribution together with a total balance for distribution as per summary in account. The values of assets on hand should be stated both as the fiduciary acquisition value and the market value as of the end of the accounting period.
(b) List of distributees and:
(1) An itemized list of the assets to be distributed to each distributee, a reference to the portion of the will authorizing distribution of each item, the value of each item so to be distributed and the value of all items distributed to each distributee.
(2) In the case of a minor, incapacitated distributee or deceased distributee, the name of the estate, the personal representative or guardian and the proper fiduciary designation. The Court will order distribution to the personal representative of the estate of the deceased distributee or, in appropriate cases, directly to the heirs, legatees or devisees of the deceased distributee and subject to such conditions as the Court shall deem proper.
Rule 6.9-2. Amended Statement of Proposed Distribution.
(a) An amended statement of proposed distribution may be filed as of course with the Clerk at any time after the account and petition for adjudication and distribution have been filed and before the same are called for audit, and thereafter with leave of or at the direction of the Court.
(b) An amended statement of proposed distribution shall contain the caption of the case, a heading ''Amended Statement of Proposed Distribution,'' contents in conformity with Rule 6.9-1 hereof, and shall be signed by the parties who executed the petition for adjudication and distribution, or their counsel of record.
(c) An amended statement of proposed distribution shall include all exhibits which are not already part of the record.
(d) Notice of an amended statement of proposed distribution shall be given in the same manner as in the case of a supplemental account (See Rule 6.3-7) and shall include the reason therefore.
Rule 6.9-3. Distribution. Special Situations.
(See Rules 12 and 13.)
Rule 6.9-4. Distribution. In Kind.
Whenever unconverted personalty or realty is included in the balance of an account and distribution thereof in kind is proposed, a writing shall be filed with the petition for adjudication and distribution, signed by the prospective distributee or distributees and acknowledged before a person duly authorized to take acknowledgments, setting forth his or their election to take in kind, designating clearly and accurately the particular asset or assets included in the election, stating the values at which said asset or assets shall be allotted, and requesting the Court to order distribution accordingly; provided that the foregoing rule shall not apply in the following instances:
(a) When the distribution is in satisfaction of a specific bequest or devise;
(b) When the proposed distributee has, in a proper fiduciary capacity, stated or joined in the statement of the account and executed and verified the petition for adjudication and distribution.
(c) When the will specifically authorizes the accountant to make distributions in-kind.
Rule 6.9-5. Distribution. In Kind. Real Estate.
Whenever the distribution of unconverted real estate is proposed, whether in satisfaction of a specific devise or a request for distribution in kind, there shall be submitted with the petition for adjudication and distribution a description by metes and bounds and Parcel Identification Number (''PIN'') of each tract or parcel of realty to be distributed, together with a recital of the derivation of decedent's title. Counsel for the accountant shall certify that he has examined the last recorded deed or the record thereof in the public office for the recording of deeds in the county in which the real estate is located and that the description submitted is a true and exact copy of the description contained in the recorded deed.
Rule 6.9-6. Distribution of After-Discovered Assets.
(a) Whenever additional assets are discovered after audit and final confirmation of an account, a petition by the personal representative or any party in interest may be presented to the Court without the filing of a supplemental inventory or a formal accounting. The petition shall comply with Rule 3.4 above and set forth that no transfer inheritance tax is due or that any such tax due has been paid as shown by a true and correct copy of the official receipt therefor attached to the petition as an exhibit; that there are no known unpaid claimants of the estate or, if there be such claimants, the names, addresses, and amounts claimed by such claimants; the names and addresses of those entitled to receive distribution and the facts supporting such conclusions; and a statement of proposed distribution.
(b) Notice of such a petition shall be given in accordance with Rule 5 above.
Rule 6.9-7. Accounts, Petitions of Adjudication and Distribution. Documents to be Submitted.
When an account, accompanied by a petition for adjudication and distribution, is filed for audit, true and correct copies of the following supporting documents shall be filed with the account and petition as exhibits:
(a) Where an asset or assets were received by the accountant pursuant to an order of a court other than this Court, a certified copy of such order;
(b) All pertinent wills, codicils, trust agreements and amendments thereto and, whenever such a document is written in a language other than English, an English translation sworn to or affirmed by the translator to be a true and correct translation of the original;
(c) Executed releases for all distributions other than real estate in kind, made prior to the filing of an account and listed in the account, describing specifically the property received in consideration of the release and duly acknowledged. (See Rule 3.4-4(b).);
(d) The current recorded deed for all interim distributions of real estate;
(e) All agreements with respect to settlements and compromises;
(f) Statement or agreement relating to accountant's compensation and/or attorney's fees, if credit therefor is taken in the account, together with a mathematical calculation of the compensation and/or fees;
(g) Whenever the birth, death, marriage or divorce of any individual is in issue, and such documents have not been previously filed, a certified copy of the birth, death, marriage certificate or divorce decree. If a copy of such cannot be obtained, the reason therefor shall be set forth;
(h) Affidavits of Pedigree;
(i) When a credit is sought for payment of Pennsylvania transfer inheritance tax, a copy of the Notice of Inheritance Tax Appraisement, Allowance or Disallowance of Deductions and Assessment of Tax;
(j) When a Federal Estate Tax return has been filed, written evidence from the United States Internal Revenue Service indicating that the Federal Estate Tax has been settled;
(k) A short certificate for the foreign fiduciary issued within three (3) months of the date of audit, or a certified copy of the instrument evidencing the authority of the foreign fiduciary to receive the fund;
(l) When filing to the first account filed in any decedent's estate, proofs of publication of the advertisement of the grant of letters;
(m) A clear and complete statement of all mathematical calculations made to arrive at the result reflected in the account or statement of proposed distribution;
(n) Whenever distribution is made to a charitable residuary beneficiary, a Charitable Clearance Certificate. See Rule 6.3-2(b); and
(o) Such other documents or copies thereof as shall be required by statute, Supreme Court rule, or other rule of court.
Rule 6.10-1. Objections. Form and Content.
(a) Objections to accounts and statements of proposed distribution shall be in writing, shall be numbered consecutively, shall be signed by the objector or his attorney, and where they contain allegations of fact shall be properly verified in the same manner as a petition.
(b) Each objection shall be specific as to description and amount, shall raise but one issue of law or fact, and shall set forth briefly the reason or reasons in support thereof.
(c) Any question which can be and is not raised by objections conforming to these rules shall not thereafter be the subject of any exception to any order confirming an account or decreeing distribution.
Rule 6.10-2. Objections. Time for Filing.
(a) Written objections to an account and statement of proposed distribution may be filed as of course with the Clerk at any time prior to, or at, the call of the account for audit.
(b) Objections may be made orally when an account is first called for audit, in which event they shall be reduced to writing and filed in conformity with these Rules within five (5) business days thereafter.
(c) Objections to supplemental accounts or amended statements of proposed distribution not served upon parties at least three (3) weeks prior to the audit date or the continued audit date may be filed to an adjudication within the period normally allotted for the filing of exceptions. Objections to supplemental accounts or amended statements of proposed distribution shall be in the same form and filed in the same manner as objections to accounts and statements of proposed distributions.
(d) No objections shall be filed or made except as provided in (a), (b) or (c) hereof unless leave of Court is first obtained.
Rule 6.10-3. Objections. Service. Return.
Immediately after objections have been filed with the Clerk, a copy of said objections to an account and/or statement of proposed distribution shall be served upon the accountant and all other parties in interest or their attorneys of record. Proof of such service shall be filed with the Clerk within ten (10) days of filing objections.
Rule 6.10-4. Objections. Continuance of Audit.
When objections to an account and/or statement of proposed distribution have been filed prior to or at audit or presented orally, and thereafter filed in writing in accordance with these rules [see Rule 6.10-2(b)], the audit of the account shall be continued pending disposition of the objections.
Rule 6.11-1. Adjudication and Order. Service. Method. Proof.
(a) When the Court has filed with the Clerk an adjudication of any account and order, counsel for the accountant shall immediately serve, in the same manner as provided for notice under Rule 5, a true copy of the adjudication and order upon:
(1) Every individual required to be served with the account and the petition for adjudication and distribution pursuant to Rule 6.3-4(b) above,
(2) Each attorney of record, and
(3) Such other parties as the Court may direct.
(b) Immediately upon effecting service of the adjudication and order as provided in (a) hereof, counsel shall file proof of such service.
Rule 6.11-2. Final Confirmation of Account, Order of Distribution and Satisfaction of Award.
(a) An order of court confirming an account and directing distribution shall become final, as of course, unless exceptions thereto are filed pursuant to Rule 7.1.
(b) Any party distributing, paying or delivering money or other property to a distributee may, at the time thereof, require the distributee or his counsel to execute a Satisfaction of Award and shall file same with the Clerk.
(c) Whenever a distributee has refused to execute a Satisfaction of Award as provided above, the distributor may petition the Court for an order directing the distributee to enter, or authorizing the entry of, a Satisfaction of Award.
(d) The Clerk shall, at the request of any party in interest, certify excerpts from an order of court for recording in any public office for the recording of deeds.
Rule 7.1-1. Exceptions. Form and Contents.
(a) Exceptions to findings of fact and conclusions of law contained in adjudications, orders and decrees shall be in writing, shall be numbered consecutively, and shall be signed by the exceptant or his attorney.
(b) Each exception shall be specific, shall raise but one question and shall set forth briefly the reason or reasons in support thereof.
(c) Questions which were the proper subject of objections to accounts or statements of proposed distribution that were not raised when the account was called for audit, or questions which might properly have been raised by an answer to or during a hearing on a petition, shall not be the subject of exceptions, and if so made shall be subject to dismissal.
(d) Exceptions shall not contain averments of fact.
Rule 7.1-2. Effect upon Distribution.
When the matters which are the subject of an adjudication or decree of distribution are so separate and distinct that an exception to any one or more, whether sustained or dismissed, cannot affect the remainder, and the accountant will not be prejudiced by the distribution of such remainder, confirmation of the adjudication or decree of distribution shall be deemed to have occurred as of course, except as to those matters to which exceptions have been taken and distribution shall proceed as to the remainder. Any party from whom such distribution has been withheld may petition the Court to order distribution.
Rule 8.1-1. Notice of Hearings. Method. Parties.
(a) An auditor or master shall give written notice of his appointment and of the time and place of his first hearing to all persons who have appeared of record, and to such other persons and in the same manner as provided for notice under Rule 5.
(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.
Rule 8.6-1. Notice of Filing of Report.
An auditor or master shall serve, in the same manner as provided for notice under Rule 5, all parties in interest or their counsel of record with a time-stamped copy of his report and shall file proof of such service with the Clerk.
Rule 8.7-1. Exceptions to Report of Auditor or Master.
Exceptions to the report of an auditor or master shall be filed within twenty (20) days of the filing of said report in accordance with Rule 7.
Rule 10.1-1. Additional Requirements.
In addition to the payment of the published filing fee, the following may be required:
(a) Photo identification of persons applying for appointment as personal representative;
(b) An original death certificate or satisfactory substitute;
(c) Original will/testamentary writing;
(d) Affidavit of Relationship;
(e) Renunciation[s].
Rule 12.1-1. Petition. Requirements.
(a) A petition claiming the family exemption, requesting confirmation of the retention thereof or approving the voluntary delivery thereof by the personal representative, shall, in addition to the information required by Rule 12.1(a), also set forth in separate paragraphs, the following:
(1) Whenever real estate is claimed, the petition shall contain a brief reference identifying the property and incorporating into the petition by reference a complete description of the property by metes and bounds and Parcel Identification Number (''PIN'') together with a recital of title which shall be attached to the petition as an exhibit, and a list of all liens which shall include the name and address of all lienors, a description of the lien and the amount thereof. If there are no liens, the petition shall so state.
(2) A prayer for an order allowing the family exemption to the claimant or claimants as claimed, confirming the retention thereof by the petitioner or petitioners, or approving the voluntary delivery by the personal representative, or, if appraisers are required, an order praying for the appointment of two appraisers to appraise the property and to file their appraisals with the Clerk within thirty (30) days after their appointment in accordance with the rules of Court.
(b) The following exhibits shall be attached to a petition claiming the family exemption:
(1) A copy of the will, if any;
(2) A copy of the inventory showing the valuation of the property claimed, when the exemption is claimed from personal property, and the gross estate exceeds the amount of the family exemption as provided by law;
(3) Proof of appointment of fiduciaries other than personal representatives of decedent's estate; and
(4) When the petition is by the personal representative seeking approval of a voluntary distribution, the original written request for the family exemption by the claimant or claimants, unless the personal representative and the claimant are the same.
Rule 12.1-2. Procedure. Incorporation into Account.
(a) A petition claiming the family exemption, requesting confirmation of the retention of the family exemption or requesting approval of the voluntary delivery by the personal representative of the family exemption may be presented to the Court (or filed with the Clerk, if unopposed) at any time prior to the filing of an account.
(b) Credit in an account for satisfaction of the family exemption, in cash, with tangible personal property or (when there is written agreement of the parties in interest) with real estate, reflecting either actual payment or delivery by the personal representative, or an intention to pay or deliver the same upon confirmation of the personal representative's account, shall be considered a request for court approval of payment or delivery of the family exemption as set forth in said account without the requirement of a separate petition therefore. If approval of the family exemption is so requested, the petition for distribution or a claim for family exemption appended to the account shall contain the information otherwise required in a petition for allowance of the family exemption.
Rule 12.1-3. Notice.
Notice of the presentation of a petition for allowance of the family exemption, unless the same be filed with an account, shall be given to all parties adversely affected thereby who have not joined in or consented to the prayer of the petition, in accordance with Rule 5.3 and a return of notice conforming to Rules 5.4 and 5.4-1 shall be filed with the Court at the time the petition is presented. A copy of the petition shall accompany such notice.
Rule 12.1-4. Disposition.
(a) In the absence of any objections, the Court will enter an appropriate decree.
(b) Objections to the petition may be filed:
(1) Prior to or at the time specified in the notice for the presentation of the petition to the Court; or
(2) Prior to or at the scheduled audit of the account claiming a credit for payment or delivery of the family exemption, or the proposed payment or delivery thereof.
(c) Objections may also be presented orally at the time the petition is presented to the Court or at the audit in which case the Court may order that the objections be reduced to writing. In all events, within five (5) days of the filing of objections, a copy thereof shall be served on all parties in interest. The Court may dispose of the objections summarily or set the matter down for hearing or argument at a later date as may be appropriate.
(d) If an objection is filed to the value of any real or personal property claimed, the Court will appoint appraisers, in which event the practice and procedure shall conform to Rule 12.1-5.
(e) When approval of the family exemption is sought pursuant to Rule 12.1-2(b) as a credit in the personal representative's account, objections thereto shall be made in accordance with Rule 6.10 et seq.
Rule 12.1-5. Appraisal.
(a) When appraisers have been appointed to appraise real or personal property from which the family exemption is claimed, they each shall, within thirty (30) days after their appointment, view the property and file with the Clerk a written appraisal under oath fixing the fair market value of the property claimed as of the date of the presentation of the petition to the Court.
(b) Upon the filing of the appraisers' reports, notice thereof shall be given as may be ordered by the Court.
(c) In the absence of objection, the Court, upon presentation of the appraisers' reports as hereinbefore provided and being satisfied that notice thereof has been given as directed by the Court, may enter a decree confirming the appraisal and setting aside the property to the claimant or claimants.
(d) Objections to any appraiser's report shall be in writing and shall be filed within five (5) days of receipt of the notice of filing of said report. Disposition of the objections shall proceed thereafter as determined by the Court.
Rule 12.2-1. Appraisals.
Whenever the Court appoints appraisers, the procedure shall conform in all respects to the procedure set forth in Rule 12.1-5.
Rule 12.3-1. Petition for Extension of Time. Contents. Exhibits.
A petition for the extension of time in which the surviving spouse may file an election to take against the will of the decedent shall set forth:
(a) The information required to be set forth in a petition pursuant to Pa.O.C. Rule 12.3(a) hereof to the extent appropriate;
(b) The facts relied upon to justify the extension of time in which to file the election;
(c) The names of all parties in interest who have joined in or consented to the prayer of the petition and the names of all such parties who have not so joined or consented; and
(d) Unless notice of filing is given to all parties in interest who have not joined or consented to the petition, a prayer for a citation or rule upon said parties to show cause why the time for filing the election should not be extended.
Rule 12.3-2. Petition for Extension of Time. Time for Filing.
A petition to extend the time in which the surviving spouse may elect to take against the will of a decedent shall be filed within six (6) months of the date of probate of the will of the decedent or aver legal justification for filing out of time.
Rule 12.4-1. Compensation.
The compensation of a guardian ad litem or a trustee ad litem appointed by the Court shall be fixed by the Court on the basis of time expended, the nature of the services rendered, and the results obtained. Unless otherwise directed by the Court, requests for compensation shall be in the form of a petition filed with the Clerk and shall be accompanied by an itemized statement of services rendered.
Rule 12.4-2. Reports.
Upon direction by the Court, each guardian ad litem and trustee ad litem appointed by the Court shall, upon concluding the duties of his appointment, file with the Court a written report in substantial conformity with Pa.O.C. Rule 8.4.
Rule 12.4-3. Resignation of Guardians and Trustees Ad Litem.
No guardian or trustee ad litem shall resign without prior approval of the Court pursuant to a petition.
Rule 12.5. Appointment of a guardian for the estate or person of a minor.
(a) A petition for the appointment of a guardian for the estate or person of a minor shall be filed by the minor, if over fourteen years of age and, if under such age, by his parent or parents, the person with whom he resides or by whom he is maintained or by any person as next friend of the minor.
(b) The petition shall set forth
(1) the name, address and age of the minor, and the names and addresses of his parents, if living;
(2) the name, address and relationship to the minor of the petitioner, if the petition is not filed by the minor;
(3) that the minor's parents consent to the petition, if it is not filed by them, or the reason why they do not consent;
(4) the necessity of the appointment of a guardian and that the minor has no guardian or that a guardian already appointed has died or has been discharged or removed by the court, together with the date of such death, discharge or removal and a reference to the court record of such discharge or removal;
(5) the name, address and age of the proposed guardian and his relationship to the minor, if any;
(6) the nature of any interest of the proposed guardian adverse to that of the minor including inter alia a reference to any estate in which the minor is interested and in which the proposed guardian is a fiduciary or surety or employee of a fiduciary or surety therein.
(7) if the petition is for the appointment of a guardian of the person, the religious persuasion of the parents of the minor and of the proposed guardian;
(8) if the petition is for the appointment of a guardian of the estate, an itemization of the assets of such estate, their location, approximate value and income, if any;
(9) if the minor is entitled to receive any money as a party to any action or proceeding in any court, a reference to the court record and the amount to which the minor is entitled; and
(10) that notice has been given to the United States Veterans' Administration or its successor, if the minor is the child of a veteran and insurance or other gratuity is payable to him by the United States Veterans' Administration, or its successor.
(c) The proposed guardian's written consent to the appointment shall be attached to the petition.
(d) If the appointment of the same person is requested as guardian of the estates or persons of several minors who are children of the same parents, a single petition shall be filed for such appointment.
(e) If the minor is over the age of fourteen his appearance in court at the time of the presentation of the petition shall be governed by local rule.
Local Note: The local rules pertaining to guardian for the estate of a minor only, follow.
Rule 12.5-1. Petition for Appointment of Guardian of Estate of Minor. Additional Contents and Exhibits.
(a) The petition shall set forth:
(1) Whether or not the minor resides in the same household with the proposed guardian;
(2) If any parent is deceased, the name of the adult person with whom the minor resides or of the official in charge of the institution having custody of the minor, consents and, if the petition is not filed by them, whether they consent or the reasons why they do not consent;
(3) Whether or not the minor is married, and, if so, the name, address, and age of the spouse and the consent of the minor's spouse, or the reason why the spouse does not consent.
(b) The following exhibits shall be attached to the petition:
(1) A certified copy of the birth certificate or certification of birth registration of each minor included in the petition;
(2) All consents in conformity with Rule 3.4-4;
(3) When the proposed guardian is an individual the written consent of that individual to act as such containing:
(i) The individual's occupation and domicile;
(ii) That the individual is a citizen of the United States, able to speak, read and write the English language; and
(iii) That the individual is not the fiduciary, or any officer or employee of the corporate fiduciary of an estate in which the minor has an interest, nor the surety, or an officer or an employee of the corporate surety of such a fiduciary, and has no interest adverse to the minor;
(4) When the proposed guardian is a corporate fiduciary, its written consent to act as such containing a statement that it is not the fiduciary of an estate in which the minor has an interest and that it has no interest adverse to the minor; and
(5) If any part of the minor's estate was obtained as a result of litigation or compromise of litigation in a court of record, a copy of the order or decree approving the compromise and distribution of the proceeds of the suit.
Rule 12.5-2. Invasion of Principal and/or Income.
No payments shall be made from principal or income without prior approval of the Court. A petition therefore shall include:
(a) Copy of most recent guardian appointment order;
(b) The amount and composition of the minor's estate and the reasons for, and amount of, the requested distribution;
(c) The consent of the minor, if over fourteen (14) years of age, and of the parents or the reason why they are not attached;
(d) Whether or not the minor resides in the same household with the proposed guardian; and
(e) Whether or not the minor is married and, if so, the name, address and age of the spouse and the consent of the spouse or the reason why the spouse does not consent.
Rule 12.5-3. Legal Fees Incurred By Guardian.
No counsel fees shall be paid from a minor's estate without prior approval of the Court. A petition therefore shall include:
(a) An itemized statement of the subject legal services rendered;
(b) The amount and composition of the minor's estate and the reasons for, and amount of, the requested payment; and
(c) The consent of the minor, if over fourteen (14) years of age, and of the parents or the reason why they are not attached.
Rule 12.5-4. Access to Restricted Accounts.
A petition for access to restricted accounts established by court order pursuant to 20 Pa.C.S.A. § 5703 shall include:
(a) A copy of the court order;
(b) The date the account was created;
(c) Type of account and current balance, and the bank name and branch address;
(d) Whether an early withdrawal penalty will be incurred and the amount thereof;
(e) The reason for the request, together with supporting documentation; and
(f) Whether the parents agree or disagree.
Rule 12.5-5. Resignation of Guardian for the Estate of a Minor.
(a) No guardian of the estate of a minor shall resign without prior approval of the Court pursuant to a petition containing:
(1) A copy of the order appointing the guardian;
(2) Whether any account has been filed and the status of that account;
(3) Itemized list of the kind and value of property currently in the hands of the petitioner;
(4) The reason for the resignation;
(5) The names of all parties in interest and a written consent for those consenting to the petition;
(6) The name and address of a successor, if any, and a written consent stating that the successor will accept the appointment; and
(7) A prayer for an order, and a copy of a proposed order, accepting the resignation, appointing a successor, directing the payment and transfer of the property in the hands of the guardian to the successor, directing the filing of an account by the resigning guardian and discharging the latter and the sureties, if any, upon final confirmation of the account.
(b) The Court may, with or without notice to the non-consenting parties and with or without a hearing, enter an order disposing of the petition, which may include a directive to the successor guardian to examine the assets of the estate and the account filed by the resigning guardian and file objections, if necessary, in such time frame as the Court may direct.
Rule 12.6-1. Exhibit.
A copy of the will or trust instrument shall be attached to the petition.
Rule 12.6-2. Security. Certificate of Appointment.
Whenever a trustee has been required to post a bond with surety, no certificate of appointment shall be issued until the required bond and surety have been filed with the Clerk.
Rule 12.6-3. Resignation.
(a) A petition seeking Court approval of a trustee's resignation shall contain:
(1) A copy of the instrument or order appointing the trustee;
(2) Whether any account has been filed and the status of that account;
(3) Itemized list of the kind and value of property currently in the hands of the petitioner;
(4) The reason for the resignation;
(5) The names of all parties in interest and a written consent for those consenting to the petition;
(6) The name and address of a successor, if any, and a written consent stating that the successor will accept the appointment; and
(7) A prayer for an order, and a copy of a proposed order, accepting the resignation, appointing a successor, directing the payment and transfer of the property in the hands of the trustee to the successor, directing the filing of an account by the resigning trustee, and discharging the latter and the sureties, if any, upon final confirmation of the account.
(b) The Court may, with or without notice to the non-consenting parties and with or without a hearing, enter an order disposing of the petition, which may include a directive to the successor trustee to examine the assets of the trust and the account filed by the resigning trustee and file objections, if necessary, in such time frame as the Court may direct.
Rule 12.8-1. Procedure.
The procedure subsequent to the entry of an order of the Orphans' Court directing partition shall, as near as practical, follow the rules for Partition of Real Property set forth in Pa.R.C.P. 1558 et seq., with the ''Clerk of the Orphans' Court'' being substituted for any reference to Prothonotary or Clerk of Courts.
Rule 12.9-1. Petition.
(a) A petition by any fiduciary to sell real property at public sale pursuant to Sections 3353, 5155, 5521(b) or 7792 of the Code, or any other applicable statute, shall also set forth, as appropriate:
(1) Type of fiduciary and copy of governing instrument or order;
(2) A copy of the current deed with PIN;
(3) An estimate of the fair market value of the property and the basis therefore, along with supporting documentation;
(4) Whether or not the fiduciary is authorized to sell by statute or is not authorized, or is denied the power to do so by the governing instrument or that it is desirable that the sale have the effect of a judicial sale and the reasons why;
(5) If the fiduciary has entered a bond, the name of the surety and the amount of such bond;
(6) The names and relationships of all parties, a brief description of their interests; the ages of any who are minors, the names of the authorized legal representative of any who are deceased or incapacitated, an indication of whether or not each party consents or does not;
(7) The proposed terms of the sale; and
(8) A prayer for an order and a copy of a proposed order authorizing the public sale of real property in accordance with the terms of sale set forth in the petition, setting forth the date for sale, directing the filing of a return of sale in accordance with Rule 12.9-3 and setting a date for confirmation of the sale.
Rule 12.9-2. Public Sale. Notice.
(a) After grant of a petition for public sale of real property, notice of the time and place of the proposed sale and a description, stating the size and location of the property to be sold, shall be given by:
(1) Advertisement once a week for three (3) successive weeks in accordance with the requirements of Rule 5 hereof, provided that if the property is located in a county other than Lehigh County then by advertisement as aforesaid in the legal periodical and in a newspaper of general circulation published in the county in which the property is located;
(2) Posting at a conspicuous place on the real property to be sold and at three (3) different public places in the vicinity of the real property; and
(3) Regular mail to all parties in interest, including the Attorney General of the state in which any charitable party in interest is domiciled in accordance with the requirements of Rule 5 hereof.
(b) All returns of notice shall conform to the pertinent provisions of Rule 5 hereof and shall be filed with the Court on or before the date set for confirmation of the sale.
Rule 12.9-3. Public Sale. Return of Sale. Confirmation.
(a) Returns of public sale of real property for the purpose of confirmation by the Court shall be in the form of an affidavit which shall set forth:
(1) The notice given as provided by Rule 12.9-2 hereof;
(2) The name and address of the purchaser and an averment that he was the highest bidder; and
(3) The price obtained.
(b) In the absence of objections, which may be filed on or before the date and time set for confirmation, the Court may enter an order confirming the sale and fixing or waiving additional security.
(c) At the date and time set for confirmation, the fiduciary shall submit to the Court a proposed order confirming the sale.
Rule 12.15-1. Accounts. Additional Information.
The accounts filed by Institutional Trustees and by Cemetery Companies as Trustee pursuant to 9 Pa.C.S.A. § 308 shall include therein a schedule containing information sufficient to demonstrate compliance with 9 Pa.C.S.A. § 303 regarding periodic deposits to permanent lot care funds.
APPENDIX A Rule 3.5-1(h)(1) Rule To Show Cause.
IN THE COURT OF COMMON PLEAS OF
LEHIGH COUNTY, PENNSYLVANIA ORPHANS'
COURT DIVISION
IN RE: :: FILE NO. :: :: :: :: ::
RULE TO SHOW CAUSE AND NOW, to wit, this ____ day of ______ , _____ , IT IS ORDERED that a rule be, and is hereby, issued upon ______ , to show cause, if any he/she/they has/have, why the prayer of the annexed (insert title of petition or motion and the name of the filing party) ______ should not be granted.
Notice is hereby given that, if you are opposed to the granting of the prayer of the annexed petition or motion, you must file a written answer or other responsive pleading thereto with the Clerk of the Orphans' Court Division of Lehigh County, Pennsylvania at the Lehigh County Courthouse, 455 West Hamilton Street, Allentown, Pennsylvania, on or before the return date set forth below.
In addition, note that, if you fail to file a timely written answer or other responsive pleading, the averments of fact set forth in the annexed petition or motion shall be deemed admitted and the Court, on its own motion or at the request of the moving party, may enter an Order granting the prayer thereof without further notice to you.
Return Date: ______
BY THE COURT:
______
J.
APPENDIX B Rule 3.5-1(h)(2) Notice.
IN THE COURT OF COMMON PLEAS OF
LEHIGH COUNTY, PENNSYLVANIA ORPHANS'
COURT DIVISION
IN RE: :: FILE NO. :: :: :: :: ::
NOTICE TO PARTIES IN INTEREST:
Enclosed for service upon you please find a true and correct copy of the (Insert title of petition or motion and the name of the filing party) ______
___________________________ ,
together with exhibits, which petition or motion was filed in the Office of the Clerk of the Orphans' Court of Lehigh County, Pennsylvania on _________________ .Notice is hereby given that, if you are opposed to the granting of the prayer of the enclosed petition or motion, you must file a written answer or other responsive pleading thereto with the Clerk of the Orphans' Court Division of Lehigh County, Pennsylvania at the Lehigh County Courthouse, 455 West Hamilton Street, Allentown, Pennsylvania, within twenty (20) days after the date of service upon you.
In addition, note that, if you fail to file a timely written answer or other responsive pleading, the averments of fact set forth in the enclosed petition or motion shall be deemed admitted and the Court, on its own motion or at the request of the moving party, may enter an Order granting the prayer thereof without further notice to you.
Date: ______
_________________
Counsel for
APPENDIX C Rule 3.5-1(h)(3) Praecipe.
IN THE COURT OF COMMON PLEAS OF
LEHIGH COUNTY, PENNSYLVANIA ORPHANS'
COURT DIVISION
IN RE: :: FILE NO. :: :: :: :: ::
PRAECIPE TO THE HONORABLE JUDGES OF THE SAID COURT:
This is to certify:
1. That all respondents have been served with the following petition or motion: ______ .
2. That an affidavit of service has been filed or is attached.
3. That
______ no timely response has been filed.
And/Or
______ the pleadings are closed.
Therefore, the undersigned requests that the Court proceed on the motion or petition.
Date: ______
_________________
Counsel for
APPENDIX D Rule 6.1-1(a) Form. General.
Net Gains or Losses on Sales or Other Dispositions (Alphabetical)
Shares or
Face ValueGross Acquisition Gain
(Loss)___________________________ APPLE INC COM 03/21/11 100.000 33,925.35 -14.225.09 19,700.26 05/20/11 60.000 19,924.42 -3448.80 16,475.62 11/7/11 50.000 19,868.61 -7,112.55 12,756.06 12/20/11 50.000 19,070.13 -7,112.55 11,957.58 BAKER HUGHES INC COM 05/5/11 300.000 22,504.57 -15,250.77 7,253.80 08/24/11 1,700.000 92,699.21 -86,421.03 6,278.18 COACH INC COM 05/20/11 115.000 6,697.47 -2,770.05 3,927.42 07/12/11 505.000 34,738.13 -12,164.14 22,573.99 EXPRESS SCRIPTS INC CL A COM 04/29/11 1,500.000 81,079.89 -44,807.70 36,272.19 FREEPORT-MCMORAN COPPER & GOLD COM 03/11/11 2,000.000 97,822.91 -80,335.00 17,487.91 GENERAL MILLS INC COM 05/20/11 285.000 11,331.38 -9,269.17 2,062.21 11/25/11 70.000 2,689.35 -2,276.64 412.71 HUBBELL INC CL B COM 05/20/11 90.000 5,855.28 -3,031.86 2,823.42 ZIPCAR INC COM 11/25/11 25.000 446.99 -543.89 (96.90) ______ Net Gain/Loss $159,884.45 ______ Investments Made (Alphabetical)
Shares or
Face ValueAmount ______ ______ ARTISAN INTERNATIONAL FD-INV #661 05/27/11 Purchased 29.318 666.69 11/30/11 Purchased 98.253 1,938.54 BOB EVANS FARMS COM 07/12/11 Purchased 255.000 9,243.80 FAIRCHILD SEMICONDUCTOR INTL INC COM 05/10/11 Purchased 1,910.000 38,263.03 09/23/11 Purchased 416.000 5,683.18 PFIZER INC COM 04/29/11 Purchased 5,000.000 101,300.00 08/15/11 Purchased 2,000.000 35,659.80 12/07/11 Purchased 2,245.000 45,168.50 ZIPCAR INC COM 07/12/11 Purchased 200.000 4,331.76 07/13/11 Purchased 200.000 4,351.10 ______ Total Purchases $246,606.40 ______
[Pa.B. Doc. No. 14-755. Filed for public inspection April 11, 2014, 9:00 a.m.] _______
1 If notice has been given upon a person who is not sui juris, see Rule 5.2 for additional information to be included in return of notice.
2 Whenever notice is accompanied by other documents, e.g., a copy of an account and statement or proposed distribution, insert that fact here.
3 If the receipt is not signed or is not returned, the affidavit shall so state, together with the reason therefore, if known. When the notice is not delivered and the unopened letter is returned to the sender, the affidavit should conform to the first part of the form under 5.4-1(c).
4 If mailed, requesting a return receipt, to a foreign country (many of which will not return the receipt card), set forth any facts indicating that the notice was received.
5 If initially notice was given by publication, the portion of the form enclosed in brackets shall be omitted from the return.
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