Amendments to Orphans’ Court Rules

The Supreme Court has entered an order adopting amendments to Pennsylvania Orphans’ Court Rules as well as changes to some of the forms used by the Orphans’ Court and Register of Wills. The report of the Orphans’ Court Procedural Rules Committee explaining the changes has also been published. “Order Amendment Rules 1.7, 1.8, 2.1, 2.5, 2.7, 3.5, 3.7, 4.3, 4.6, 5.1, 5.3, 5.4, 7.1, 10.1, 10.5, and the Index of the Appendix of the Pennsylvania Orphans’ Court Rules, and Rescinding and Replacing Forms OC-1 Through OC-5 and RW-03 Through RW-10,” No. 808 Supreme Court Rules Doc. (10/31/2019), 49 Pa.B. 6804 (11/16/2019).

Many of the changes are typographical, grammatical, or otherwise minor, but the following changes may be of interest:

  • An explanatory comment was added to Rule 1.7 to clarify that the rule does not apply to a withdrawal of counsel before the Register of Wills, which should be governed by local rule or the discretion of the Register.
  • Rule 2.5 was amended to require notice of the filing of an account to a co-fiduciary who does not join in the account, and to allow a party residing outside of the United States 60 days (not 20 days) within which to file objections.
  • Rule 4.3 was amended to require a certificate of service for all legal papers filed under that rule.
  • The term “outright beneficiary” was changed to “beneficiary” in the notice requirements of Rule 10.5(a)(1), and (a)(8) was amended to require notice to the beneficiaries of an estate or trust if the personal representative is a fiduciary of the estate or trust.
  • Forms were revised to add requests for attachments, updating fill-in functions, and revising notarial language.

Decree for Sale of Property is Appealable

Orphans’ Court decree that authorized the sale of real estate was immediately appealable under Pa.R.A.P. 342(a)(6) and so the failure to appeal was a waiver of any right to a later appeal. Krasinski Estate, 40 WAP 2018 and 41 WAP 2018 (Pa. 10/31/2019), aff’g, 2018 PA Super 130 (5/15/2018) (en banc), aff’g in part, rev’g in part, vacating in part, and remanding, 5 Fid.Rep.3d 275 (Clearfield Co. O.C. 2015).

Trusts Amendments by Agent Invalid

Amendments to inter vivos trust document signed by agent (one of settlor’s daughters) were invalid even though the trust document allowed amendments by agents because the power of attorney did not authorize the agent to amend the trust. The attempted appointment of co-trustees and co-agents were also invalid as contrary to the terms of the trust and the power of attorney. Finally, the actions of the agent in attempting to take advantage of her sister’s weakened mental capacities to increase her share of the trust showed a lack of integrity that justified denying her appointment as a successor trustee. M. Estelle Thomas Trust, 9 Fid.Rep.3d 275 (Bucks O.C. 2019), aff’d, 1705 EDA 2019 (Pa. Super. 3/3/2020) (non-precedential).

Civil Division Lacks Jurisdiction over Validity of Will and Claim for Specific Performance

Civil complaint that “touches on” validity of decedent’s will was dismissed with prejudice for lack of subject matter jurisdiction, and not transferred to Orphans’ Court division. Kramer, III v. Mary T. Kramer Estate (No. 1), 9 Fid.Rep.3d 272 (Lycoming C.P. 2019).

Upon reconsideration, the court transferred to the Orphans’ Court division the claim for specific performance of an alleged contract of the decedent to sell real property, which is under the mandatory jurisdiction of the Orphans’ Court under 20 Pa.C.S. § 711(13) and (17). Kramer, III v. Mary T. Kramer Estate (No. 2), 9 Fid.Rep.3d 273 (Lycoming C.P. 2019)

New Life Insurance Transfer for Value Regulations

New final regulations have been filed with the Federal Register by the Internal Revenue Service providing guidance on the reporting of life insurance sales or proceeds under new IRC section 6050Y and the changes to the transfer for value rules of IRC section 101 that were made by the “Tax Cuts and Jobs Act” of 2017, P.L. 115-97. The regulations will be published on October 31, 2019. T.D. 9879, RIN 1545-BO49, F.R. Doc. 2019-23559.

Increase in Filing Fees

The Supreme Court has amended the Financial Regulations of Title 204 of the Pennsylvania Code to increase filing fees by $2.00, from $17.00 to $19.00, for (among other things) petitions for grant of letters and first filings in petitions concerning adoptions, incapacitated persons’ estates, minors’ estates, and inter vivos trusts, effective immediately. “Amendment of Financial Regulations Pursuant to Act 20 of 2019, Pa.R.C.P. No. 1920.31(A)(2) and 23 Pa.C.S. § 5323; No. 523 Judicial Administration Doc.” (10/10/2019), 49 Pa.B. 6380 (10/26/2019).

Delays in Providing Information Not Grounds for Removal of Trustee

Delays and what the court characterized as “poor judgment” by the trustee in responding to requests for information by the adoptive parents of the minor beneficiary of the trust were not a “serious breach of a fiduciary duty” warranting removal, but the court “strongly urged” the trustee to send the parents bank and broker statements regularly, and to promptly respond to future requests for information. Naomi Gulden Estate, 9 Fid.Rep. 256 (Lehigh Co. O.C. 2019).

Standing of Disinherited Children to Challenge Will

The children of the decedent, as intestate heirs, might not have standing to challenge the probate of a will when there is an earlier will that has not been challenged and which provides no benefit to the children. William E. Fink Estate (No. 1), 9 Fid.Rep.3d 247 (Lycoming Co. O.C. 2019).

The court having raised the issue of standing sua sponte, and allowing the parties to brief the issue of standing, the court found that the children of the decedent who had been disinherited by an earlier will did not have a “substantial, direct, and immediate” interest in the probate of the current will. William E. Fink Estate (No. 2), 9 Fid.Rep.3d 253 (Lycoming Co. O.C. 2019).

[Note: In both opinions, the court cites Superior Court decisions for the proposition that standing is jurisdictional and cannot be waived. However, as I have noted before, the Supreme Court has ruled several times that standing is not jurisdictional and can be waived. See “Standing Is not Jurisdicational.” That does not mean that the trial court was wrong to raise the issue sua sponte, or that it was wrong in concluding that the contestants did not have standing.]