The compensation of a lawyer who served as administrator of the estate, submitted a fee agreement to beneficiaries specifying compensation at an hourly rate, and kept hourly time records with specific descriptions of work was nevertheless reduced by more than half, from $11,165.65 to $5,165.65, when the amount originally billed was almost 75% of the estate and the estate was not complicated. Andrews Estate, 11 Fid.Rep.3d 15 (Monroe O.C. 2020).
The court that approved the original settlement of the litigation for a minor’s injuries had jurisdiction to issue an order under Pa.R.C.P. 213.1 to consolidate actions in other counties approving the sale of annuities held for the benefit of the minor, and it was not improper to order future annuity payments to be paid into court pending a proper adjudication of the issues. Barber v. Stanko, 11 Fid.Rep.3d 11 (Allegheny O.C. 2021), appeals quashed, 2021 PA Super 97 (5/14/2021).
Partial summary judgment was granted on the “substantial benefit” element of undue influence when the contested will left the entire estate to the proponent of the will (who was also the mother’s caretaker) despite the proponent’s claim that the additional funds were for her children’s educations. Gattegno Estate, 11 Fid.Rep.3d 2 (Allegheny O.C. 2021).
At the recommendation of the Real Property, Probate and Trust Law Section of the Pennsylvania Bar Association, the PBA Board of Governors has voted to oppose the adoption of Pa.O.C. Rule 10.7 that had been proposed by the Supreme Court Orphans’ Court Procedural Rules Committee for procedures before the Register of Wills under the Revised Uniform Fiduciary Access to Digital Assets Act and to support instead the adoption of a different Rule 10.7 proposed by the Section. “Recommendation and Report on The Proposal by the Orphans’ Court Procedural Rules Commmittee of the Supreme Court of Pennsylvania regarding New Rule 10.7 concerning Section 3908 of Pennsylvania’s Revised Uniform Fiduciary Access to Digital Assets Act (‘RUFADAA’), 20 Pa.C.S. Section 3908.”
Crawford County has rescinded all of its local Orphans’ Court rules on adoption. “Rescission of Local Rules Concerning Adoption Procedures; No. O.C. 2021-26,” (3/10/2021), 51 Pa.B. 2380 (5/1/2021).
In “IRS Publication 590-B and 10-Year RMDs,” it was reported that IRS Publication 590-B had caused concerns about the application of the new 10-year rule, because examples in the publication made it appear that beneficiaries of inherited individual retirement accounts (IRAs) would have to take required minimum distributions (RMDs) based on life expectancies during the 10 year period. That has not been the prevailing understanding of the 10-year rule, which most practitioners understood to require the entire account to be distributed before the end of the 10 year period but does not require any interim distributions.
According to the website MarketWatch, an unnamed IRS spokesman has said that the examples in IRS Publication 959-B are incorrect and the publication will be revised to show that beneficiaries have 10 years to withdraw from an IRA “in whatever fashion they’d like.”
[5/25/2021 Update: The IRS website now has an undated page titled “Revisions to the 2020 Publication 590-B” which confirms that the publication will be revised and be available for download “soon.” The example on page 12 will apparently be revised by changing the facts from the death of a father to the death of a brother who is not more than 10 older than the beneficiary. In that case, the beneficiary would be an eligible designated beneficiary and the 10 year rule would not apply.]
In a dispute over legal fees paid by a trustee, the Orphans’ Court had ordered the trustee to turn over to the beneficiaries unredacted invoices for legal fees paid, and an evenly divided Supreme Court has affirmed the order. In re: Estate of William K. McAleer, 248 A.3d 416, ___ Pa. ____, 6 WAP 2019 (4/7/2021) (per curiam order, opinion of Wecht, J., opinion of Saylor, J., opinion of Donohue, J.).
The procedural history is somewhat complicated because the Superior Court had quashed the appeal, holding that the the order was not appealable as a collateral order under Pa.R.A.P. 313(a) because the order was not separable from the merits of the fee dispute. In the alternative, the Superior Court concluded that the attorney-client privilege did not apply. In re: Estate of William K. McAleer, 194 A.3d 587, 2018 PA Super 227 (2018).
The Supreme Court reversed the quashal, but then split on the issue of whether the attorney records were privileged. The opinion of Justice Wecht, explains the reversal of the quashal and presents his opinion in support of affirmance on the merits, with which Justices Todd and Dougherty joined. The opinion of Justice Saylor supported reversal on the merits, and the opinion of Justice Donohue, joined by Justice Mundy, also supported reversal on the merits. Chief Justice Baer did not participate in the consideration or decision of the matter.
The Superior Court had concluded that the trustee had a duty to share information about the administration of the trust, and the trustee is privileged to refrain from disclosing opinions of counsel and communications with counsel only if counsel is retained for the personal protection of the trustee in connection with surcharge or removal. This is referred to by Justice Wecht as the “fiduciary exception” to attorney-client privilege, and Justice Wecht’s opinion concludes that, “where legal counsel is procured by a trustee utilizing funds originating from a trust corpus, the beneficiaries of that trust are entitled to examine the contents of communications between the trustee and counsel, including billing statements and the like.”
Some lawyers have said that, as a result of the evenly divided court, the issue of the “fiduciary exception” is not settled in Pennsylvania, but that is not consistent with the per curiam order. The order of the court says that “the Superior Court’s alternative substantive rationale for affirming the trial court’s disclosure order is hereby affirmed by operation of law.” Furthermore, the Superior Court affirmed the principle of the fiduciary exception, and that part of the opinion was not reversed and so remains binding on both the Superior Court and Orphans’ Courts. It is therefore difficult to escape the conclusion that the fiduciary exception is the law in Pennsylvania until the Supreme Court should decide to revisit the issue.
[Update (4/24/2021): According to the website MarketWatch, an unnamed “IRS spokesman” has said that the examples in IRS Publication 959-B are incorrect and will be revised to show that beneficiaries have 10 years to withdraw from an IRA “in whatever…
Dauphin County has published a new Orphans’ Court Local Rule 4.7 for electronic filing, which will be effective thirty days after publication. “Promulgation of Local Rules; No. 1793 S 1989” (3/22/2021), 51 Pa.B. 2163 (4/17/2021).
The Administrative Office of Pennsylvania Courts has published proposed amendments to the Electronic Case Record Public Access Policy of the Unified Judicial System that would expressly include records of the Guardianship Tracking System and the Clerk of the Orphans’ Court within the scope of the policy, and make some stylistic changes. “Proposed Amendments to the Electronic Case Record Public Access Policy of the Unified Judicial System,” 51 Pa.B. 2160 (4/17/2021).
Comments should be submitted not later than May 17, 2021.