By distributing some trusts years before and adding the assets of those trusts to other trusts, the trustee waived claims for commissions payable from those trusts, as well as attorneys’ fees incurred later. The trustee also failed to provide clear and persuasive evidence of the amount of work involved in serving as trustee, and did not present hourly records or other support for the claims for substantial commissions, and so the claimed compensation was reduced. Legal fees charged to prepare accounts that were inaccurate and had to be withdrawn were not approved. Legal fees also not allowed for disputes that arose out of errors by the trustee and his counsel, and the resulting litigation was unnecessary and needlessly complex. Cassalia Trusts, 12 Fid.Rep.3d 562 (Montgomery O.C. 2022), on appeal, 666 EDA 2023 (Pa. Super.) (consolidated with 667-672 EDA 2023). (The Pa.R.A.P. 1925(a) opinion is Cassalia Trusts (No. 2), 1 Fid.Rep.4th 63 (Montgomery O.C. 2023).).
Petition for temporary injunction against the funeral and burial of the decedent’s father was denied for lack of jurisdiction when the decedent did not reside in Pennsylvania and was to be buried in another county, the only connect to Montgomery County being the location of the funeral home making the burial arrangements. The petitioner also failed to demonstrate immediate and irreparable harm, because it was alleged that preservation of the body was needed for an autopsy but there no showing of a need for an autopsy or what would be learned that could not be learned from medical records, or from a later autopsy. Gilbert Estate, 12 Fid.Rep.3d (Montgomery O.C. 2022).
The Supreme Court has adopted new Pa.R.O.C.P. 1.22, which provides that “Citation of authorities in matters subject to these rules shall be in accordance with Pa.R.A.P. 126.” “In re: Order Adopting Rule 1.22 of the Pennsylvania Rules of Orphans’ Court Procedure, No. 936 Supreme Court Rules Docket” (2/13/2023), 53 Pa.B. 1052 (2/25/2023). (Rule 1.22 was “attached” to the order, but is a separate document on the AOPC server.)
Pa.R.A.P. 126(b)(2) states that “Non-precedential decisions as defined in (b)(1) may be cited for their persuasive value.” “Non-precedential decision” is defined by (b)(1) to include an unpublished non-precedential memorandum decision of the Superior Court filed after May 1, 2019.
An Adoption Report of multiple rules committees, including the Orphans’ Court rules committee, was also docketed.
The new rule will be effective April 1, 2023.
[DBE Comment: I have not regularly reported opinions of the Superior Court labeled “non-precedential” because I took the Superior Court at its word and thought that the opinions were non-precedential. But it now appears that non-precedential decisions are semi-precedential. So I will be reporting non-precedential opinions in the future.]
The Superior Court has affirmed the dismissal of a petition to remove a corporate trustee, finding that the allegations of the petition were not grounds for removal under 20 Pa.C.S. § 7766(b). Specifically, neither changes in staffing by the trustee, nor beginning to require beneficiaries to supply financial information to request discretionary distributions. nor incurring more than $30,000 in legal fees of outside counsel who wrote a “condescending an inappropriate letter” were a “serious breach of trust,’ under § 7766(b)(1), two disagreements between the individual and corporate trustees were not a “lack of cooperation” under § 7766(b)(2), the failure to make regular distributions of income was not a failure to “effectively administer the trust” under § 7766(b)(3) when the trust provided for discretionary distributions, and the staffing changes were not a substantial “change of circumstances” under § 7766(b)(4). In re: Amended and Restated Deed of Trust of Margaret M. Holdship, 288 A.3d 919, 2023 PA Super 11 (1/19/2023), aff’g, 1 Fid.Rep.4th 59 (Allegheny O.C. 2022).
Lackawanna County has adopted a new Lacka.Co.R.C.P. 175 for the use of “Advanced Communication Technology” (e.g., videoconferencing), and has amended Rule 208.3(a) on motion procedure, both of which may affect Orphans’ Court practice. “Adoption of Lacka.Co.R.C.P. 175 and Amendments to Lacka.Co.R.C.P. 208.3(a), 211(c), 214(e), 214.2(a) and (c), 1028(c), 1034(a), 1035.2(a) and 4000.1(a) Governing the Use of Advanced Communication Technology (ACT) in Civil Proceedings; No. 23 CV 1” (1/12/2023), 53 Pa.B. 611 (1/28/2023).
[Note: The Orphans’ Court Procedural Rules Committee has proposed a new Pa.R.O.C.P. 1.20 that would allow the Orphans’ Court to conduct proceedings using “advanced communication technology.” See “Proposed Adoption of Pa.R.O.C.P. 1.20,” 51 Pa.B. 7442 (12/4/2021).]
Somerset County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 9, 2023. “Administrative Order; Administrative Order 1 of 2023″ (1/5/2023), 53 Pa.B. 608 (1/28/2023).
York County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 1, 2023. “Increase in Fees for Court-Appointed Guardian of Medicaid Recipient Incapacitated Persons; No. 6723-0115” (1/12/2023), 53 Pa.B. 610 (1/28/2023).
The Supreme Court has reversed decisions of the Superior Court and Orphans’ Court and held that a trust modification with the consent of the settlor under 20 Pa.C.S. §7740.1(a) may change the provisions of a trust relating to the appointment of trustees, and allow the beneficiaries to remove and replace trustees. In re: Trust under Deed of Walter R. Garrison, ___ Pa. ___, 288 A.3d 866, 61 MAP 2022, 62 MAP 2022, and 63 MAP 2022 (1/19/2023), rev’g 1429 EDA 2020 (Pa. Super. 9/27/2021) (non-precedential), and 10 Fid.Rep.3d 189 (Montgomery O.C. 2020).
[DBE Comment: As previously noted, the consent of the settlor should have made a difference, and the court was able to distinquish its previous decision in Trust under Agreement of Edward Winslow Taylor, 649 Pa, 649, 164 A.3d 1147 (Pa. 2017), which involved a trust modification without the consent of the settlor under 20 Pa.C.S. § 7740.1(b), and not a trust modification with the consent of the settlor under 20 Pa.C.S. § 7740.1(a).]
[DBE Note: There seems to be a typographical error in the slip opinion, J-57A-C-2022mo. On page 12, the court states, “First, section 7740.1(a) involves unified action by all interests in a trust, i.e., settlor and all trustees, to revoke or modify an otherwise irrevocable trust.” I believe the word “trustees” should be “beneficiaries.”]
The following chart shows the status of legislation introduced in the 2021-2022 session of the Pennsylvania legislature that might be of interest to estate and trust practitioners. Click on the bill number to see the history or text of the bill.
| Bill | Purpose/Subject | Adds/Amends | Last House Action | Last Senate Action | Act |
|---|---|---|---|---|---|
| HB 81 | Allows intestate heirs to receive unclaimed property without letters (was HB 1724 of 2019) | Amends 20 Pa.C.S. § 3101(e) | Referred to Judiciary (1/11/21) | ||
| HB 169 | Updates filial obligation law | Amends 23 Pa.C.S. §§ 4602 and 4603 | Referred to Judiciary (1/14/21) | ||
| HB 384 | Allows guardian of the person to make mental health care decisions | Amends 20 Pa.C.S. § 5521 | Referred to Judiciary (2/3/21) | ||
| HB 514 | Prohibits non-compete clauses by purely public charities | Amends §§ 3 and 5 of the Institutions of Purely Public Charity Act, act of 11/26/1997, No. 55 | Referred to Finance (2/11/21) | ||
| HB 558 | Exempts transfers of less than $100,000 from inheritance tax (see HB 665 of 2019) | Amends § 2106 of the Tax Reform Code of 1971 | Referred to Finance (2/22/21) | ||
| HB 679 | Exempts transfers by individuals and married couples to wholly owned business entities | Amends § 1102-C.3 of the Tax Reform Code of 1971 | Referred to Finance (2/26/21) | ||
| HB 1148 | Repeals inheritance tax (was HB 77 of 2019) | Repeals Article XXI of the Tax Reform Code of 1979 | Referred to Finance (4/8/21) | ||
| HB 1342 | Exempts from inheritance tax transfers of personal property by members of military who die from active duty | Amends § 2111 of the Tax Reform Code of 1971 | House concurred in Senate amendments (7/7/22)on and final passage (12/13/21) | Re-reported as amended from Appropriations; Third consideration and final passage (7/7/22) | Section 15.1 of Act 53 (7/8/22) |
| HB 1523 | Guarantees that the elective share of a surviving spouse who is also a pretermitted spouse will not be less than an intestate share | Amends 20 Pa.C.S. § 2211 | Referred to Judiciary (6/1/21) | ||
| HB 1534 | Adds grandchildren to those who can receive bank accounts and unclaimed property without letters, and eliminates dollar limit on unclaimed property | Amends 20 Pa.C.S. § 3101(b) and (e) | Third consideration and passage (9/13/22) | Referred to Judiciary (9/13/22) | |
| HB 1558 | Parent "estranged" from adult child forfeits intestate share of child's estate (was HB 2858 of 2019) | Amends 20 Pa.C.S. § 2106 | Referred to Judiciary (6/7/2021) | ||
| HB 1817 | Creates an inheritance tax "holiday" from enactment through the end of 2021 | Amends § 2111 of the Tax Reform Code of 1971 by adding a new subsection (g) | Referred to Finance (8/31/21) | ||
| HB 1822 | Increases bank accounts not requiring administration from $10,000 to $20,000 | Amends 20 Pa.C.S. § 3101(b) | Third consideration and final passage (12/15/21) | Referred to Judiciary (12/29/21) | |
| HB 1890 | Requires background checks for guardians | Amends 20 Pa.C.S. § 5511(f) | Referred to Aging and Older Adult Services (9/21/21) | ||
| HB 1973 | Reduces filings by volunteer fire companies and reduces fines for noncompliance | Amends Solicitation of Funds for Charitable Purposes Act | Referred to Finance (10/13/21) | ||
| HB 2010 | Training for public pension fund and state fund fiduciaries | Adds 20 Pa.C.S. Ch. 74 | Referred to State Government (10/26/21) | ||
| HB 2016 | Confirms that real estate and 3101 accounts do not count towards $50,000 limit on small estate petition | Amends 20 Pa.C.S. § 3102 | Third consideration and final passage (12/15/21) | Referred to Judiciary (12/29/21) | |
| HB 2394 | Enacts new provisions for "Pennsylvania orders for life-sustaining treatment" (POLST) (was HB 987 of 2019 and HB 1196 of 2017) | Amends 20 Pa.C.S. Ch. 54 and adds a new Subchapter F | Referred to Health (3/9/22) | ||
| HB 2754 | Amends Slayer's Act to impose forfeiture on persons convicted of elder abuse (was HB 1845 of 2019) | Amends 20 Pa.C.S. §§ 2106 and 2507 and Ch. 88 | Referred to Judiciary (7/2122) | ||
| SB 383 | Creates an inheritance tax "family exemption" deduction of $100,000 | Amends § 2127(3) of the Tax Reform Code of 1971 | Referred to Finance (3/10/21) | ||
| SB 583 | Phases out inheritance tax on siblings (was SB 27 of 2019) | Amends § 2116(a)(1.3) of the Tax Reform Code of 1971 | Referred to Finance (4/20/21) | ||
| SB 683 | Phases out inheritance tax on ancestors and descendants (was SB 27 of 2019) | Amends § 2116(a)(1) of the Tax Reform Code of 1971 | Referred to Finance (5/17/21) | ||
| SB 1034 | Modifies revocable trusts for marriage, divorce, and the birth of a child and makes other changes to Title 20 | Amends 20 Pa.C.S. §§ 2022, 2507, 2521, 6111.1, and 7710.2 and enacts new §§ 3327.1, 7710.3, and 7710.4 | Referred to Judiciary (1/26/22) | ||
| SB 1035 | Adds new definitions to UTA and conforming amendments, adds new subchapter for "directed trusts," and adds new procedure for nonjudicial account settlements | Amends 20 Pa.C.S. § 7703 and various related sections, adds new Subchapter H.1 to Ch. 77, and adds new § 7785.1 | Referred to Judiciary (9/26/22) | Third consideration and passage (9/21/22) | |
| SB 1321 | Applies federal grantor trust rules to PA income tax | Amends sections 302 and 305 of the Tax Reform Code of 1971 | Referred to Finance (10/25/22) | Third consideration and passage (10/24/22) | |
| SB 1333 | Amends guardianship procedures on counsel for alleged incapacitated person, consideration of less restrictive alternatives, and certification of individuals with three or more appointments as guardian | Amends 20 Pa.C.S. §§ 5511 and 5512.1 | Reported as committed from Judiciary; first consideration (9/20/22) |
Indiana County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 1, 2023. “Increase in Fees for Court-Appointed Guardians of Medicaid Recipient Incapacitated Persons; Administrative Order No. 32-22-0785” (12/12/2022), 52 Pa.B. 8226 (12/31/2022).