Proposed Rule for Digital Assets

Posted on by April 2, 2021

The Orphans’ Court Procedural Rules Committee has published a proposal for a new rule for Registers of Wills that would provide a cross-reference to 20 Pa.C.S. § 3908, which allows disclosure of digital assets through the filing of an affidavit with the Register. “Proposed Adoption of Rule 10.7 of the Pennsylvania Orphans’ Court Rules,” 51 Pa.B. 1796 (4/3/2021).

According to the report of the committee, the committee considered other approaches, such as restating the affidavit procedures in the rule or changing the petition for probate, but believed that the procedures in the statute were adequate and incorporation of those procedures into the rules by referencing the statute was appropriate.

For additional information about digital assets and the procedures for accessing those assets, see “Fiduciary Access to Digital Assets” (7/27/2020).

Ethics of Retaining Wills

Posted on by April 1, 2021

The Committee on Legal Ethics and Professional Responsibility of the Pa. Bar Association has issued Formal Opinion 2021-300 (3/5/2021), “Ethical Considerations for Lawyers Retaining Original Wills.” The opinion adopts and endorses New York State Bar Association Ethics Opinion 1182 (1/23/2020), “Disposition of Wills,” and concludes that, under Pa. R.P.C. 1.15, “lawyers must maintain original Wills until they (1) provide them to the client, the client’s executor or some other person authorized to possess the Will, (2) are notified that the client no longer needs the Wills to be stored (such as when a client drafts a new Will), or (3) are authorized to dispose of them by statute, rule or some other procedure.” (Capitalization in original.)

The opinion does not identify any “statute, rule or some other procedure” by which a lawyer might be able to dispose of an original will in his or her possession.

The opinion suggests that lawyers retaining original wills and other documents take steps to maintain current contact information for clients, and to consider whether to continue storing wills or to advise clients about alternative methods of storing and safeguarding documents.

Comments to Proposed Amendment to Pa.O.C. Rule 10.5(a)

Posted on by March 26, 2021

The following comments have been submitted to the Orphans’ Court Procedural Rules Committee on the proposed rule change for notice by successor personal representatives.

March 26, 2021

Pamela S. Walker, Counsel
Orphans’ Court Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635

Via Email orphanscourtproceduralrules@pacourts.us

Re: Proposed Amendment of Rule 10.5 of the Pennsylvania Orphans’ Court Rules, 51 Pa.B. 1651 (3/27/2021)

Dear Ms. Walker:

I agree with the general principle that a notice of estate administration should be given to interested parties when there is a change in personal representatives, just as a notice to current trust beneficiaries is required under 20 Pa.C.S. § 7780.3(g) whenever there is a change in trustees, but I think that there are two weaknesses in the proposed change to Rule 10.5(a).

The first weakness is that the proposed reference to “a personal representative to whom letters have been granted” and the reference in the amended note to “all personal representatives” when taken together would suggest that, when two personal representatives are granted letters, both must give notice. That would be unnecessary, and I think that the problem is in the wording of the note and not the wording of the rule itself.

The other weakness is that there can be a change in personal representatives without a grant of letters. For example, it is possible for letters to be granted to two persons and for one of them to die during the administration of the estate, leaving the survivor to serve as sole personal representative. While there is currently no rule or statute allowing the resignation of a personal representative, it may be possible for a will to allow the resignation of a co-executor. Regardless of how it might happen, I think the loss of a personal representative is also worthy of a notice to interested parties, just as the loss of a co-trustee would require notice under § 7780.3(g).

My final comment is that the phrase “to whom letters have been granted” seems superfluous because a personal representative is necessarily a person to whom letters have been granted.

I would therefore suggest the following changes in the wording of the rule and the note:

  • Rule 10.5(a) should be amended to read, “Within three (3) months after [the] a grant of letters, and whenever there is a change in personal representatives, [the] a personal representative [to whom original letters have been granted] or the personal representative’s counsel shall send a written notice of estate administration in the form approved by the Supreme Court to:”
  • The note should be amended to read “Subparagraph (a) applies to an original grant of letters and to all changes in personal representatives, including a grant of letters to a successor personal representative and the death of a personal representative when there are other personal representatives who continue to serve.”

Thank you for your consideration of these comments and suggestions.

Sincerely yours,
Daniel B. Evans

Proposed Rule Change for Notice by Successor Personal Representatives

Posted on by March 26, 2021

The Orphans’ Court Procedural Rules Committee has proposed an amendment to Pa.O.C. Rule 10.5(a), regarding notice of estate administration, that would change “the personal representative to whom original letters have been granted” to “a personal representative to whom letters have been granted.” The Note to Rule 10.5 would be amended to state that the rule applies to a successor personal representative. According to the publication report of the committee, “Requiring successor personal representatives to notify the interested persons of the change in representative ensures the recipients are aware of the change and know to whom they should look for information going forward.” “Proposed Amendment of Rule 10.5 of the Pennsylvania Orphans’ Court Rules,” 51 Pa.B. 1651 (3/27/2021).

Comments may be submitted to orphanscourtproceduralrules@pacourts.us by May 7, 2021.

(A comment has been submitted.)

Checking Status of Inheritance Tax Returns

Posted on by March 6, 2024

There is now a page on the Department of Revenue “Pennsylvania Tax Hub” website (https://mypath.pa.gov) where you can find the status of an inheritance tax return that has been filed, based on the decedent’s social security number and last name. From the home page, ignore the login box and scroll down to click on “Track My Inheritance Tax Return” in the lower left corner of the home page.

There seem to be only three responses:

  1. That no return has been received
  2. That a return has been received but has not yet been processed (which they say could take six months).
  3. That a return has been received and has been processed (meaning that a notice of appraisement has been issued or is about to be issued).

This could be useful in confirming that a return was received, and whether or not it has been reviewed.

[Updated 3/6/2024 to correct link.]

One Month Deferral for Pa. Personal Income Tax Returns

Posted on by March 20, 2021

On March 18, the Pa. Department of Revenue announced that it would extend the deadline for filing 2020 personal income tax returns, and paying any tax owed, from April 15 to May 17. The Internal Revenue Service had announced a similar decision on March 17.

Unlike the IRS announcement, the Dept. of Revenue press release refers to “taxpayers” and not “individuals,” and so the announced extension should apply to estates and trusts as well as individuals. (The reference in the announcement to “personal income tax” does not exclude estates and trusts because they are included in Article III of the Tax Reform Code of 1971, which is titled “Personal Income Tax.”)

Limits on Public Access to Unified Judicial System Case Records

Posted on by March 19, 2021

The Administrative Office of Pennsylvania Courts has revised and republished the list of applicable authorities that restrict public access to court records. “Case Records Public Access Policy of the Unified Judicial System of Pennsylvania,” 51 Pa.B. 1497 (3/20/2021).

The revisions do not affect the provisions for the Orphans’ Court that can be found in “Public Access Policy Compliance for Orphans’ Court Filings.”

One Month Deferral for Individual Federal Income Tax Returns

Posted on by March 20, 2021

In Information Release IR-2021-59 (3/17/2021), the Internal Revenue Service has announced that, due to the continuing COVID-19 pandemic, the filing date for individual income tax returns will be extended from April 15, 2021 to May 17, 2021.

The postponement also applies to 2020 income tax payments due on April 15, but does not apply to 2021 estimated tax payments that are due on April 15.

It is not clear whether this relief applies to estates and trusts as well as individuals, because estates and trusts are often treated in the same way as individuals, but the relief clearly does not apply to corporations or other business filings.

More formal guidance is promised “in the coming days.”

There is similar relief for Pennsylvania personal income tax filings and payments.

[Updated 3/20/2021 to reflect the announcement of similar relief by the Pa. Dept. of Revenue.]

Administrator’s Travel Expenses Allowed in Part

Travel expenses of the administrator were allowed for gas, U-Haul rentals, and hotels over the objections of creditors of an insolvent estate, the court finding that the trips from the administrator’s home in Florida to Pennsylvania were reasonable and appropriate, but unsubstantiated “cash expenses” were denied. Administrator’s commission allowed consistent with Johnson Estate schedule. Boucher Estate, 10 Fid.Rep.3d 365 (Monroe O.C. 2020).

Evidence of Undue Influence Barred; Fraud and Forgery not Proven

On an appeal from probate, petitioner failed to answer discovery requests and was sanctioned by being barred from introducing evidence of undue influence or lack of capacity. For the remaining allegations of fraud and forgery, the petitioner did not present any evidence that the decedent was tricked into signing the will, and the only evidence of forgery was the opinion of a document examiner, which was contradicted by the testimony of the lawyers who witnessed the decedent sign the will. Gallo Estate, 10 Fid.Rep.3d 357 (Monroe O.C. 2020).