New Estate Tax Lien Discharge Criteria

The Department of the Treasury has released interim guidance on the discharge of federal estate tax liens under IRC section 6324(a).

Unlike other federal tax liens, the federal estate tax lien arises immediately at death, without any assessment, notice or demand, and it attaches to all property included in the gross estate for federal estate tax purposes.

The interim guidance was issued because the processing of requests for discharge of the estate tax lien, which are often necessary in order to sell real estate, has been moved from one department to another within the IRS and the new department was applying different criteria for granting discharges.

“Interim Guidance for Responsibility to Process All Requests for Discharge of the Estate Tax Lien,” Control Number: SBSE-05-0417-0011 (4/5/2017).

New Lycoming County Orphans’ Court Rules

Lycoming County has rescinded its Orphans’ Court Rules and adopted new rules consistent with the state-wide rules that took effect in September 2016, to be effective 30 days after publication in the Pennsylvania Bulletin.

“Amendments to the Rules of Orphans’ Court Procedure; Orphans’ Court Division; Doc. No. 41-17-1052” (Lycoming Co. 3/3/2017), 47 Pa.B. 2424 (4/29/2017).

Revised Uniform Law on Notarial Acts to be Effective 10/26/2017

Much of the Revised Uniform Law on Notarial Acts, 57 Pa.C.S. Ch. 3 (which was enacted in Pennsylvania as Act No. 73 of 2013), was to become effective only after the Department of State gave notice that is has approved notary education courses.

The Department has now given notice of those courses, and has announced that the act will be completely effective on 10/26/2017 (180 days after publication of the notice).

“Revised Uniform Law on Notarial Acts,” 47 Pa.B. 2518 (4/29/2017).

[For the short form certificate for an acknowledgement by an attorney at law pursuant to 42 Pa.C.S. § 327, see 57 P.C.S. § 316(2.1).]

Agent Cannot Revoke Principal’s Revocable Trust

An agent with the power to receive the income or corpus of a trust, as provided in 20 Pa.C.S. § 5602(a)(7), cannot revoke the principal’s revocable trust by withdrawing all of the income and principal; an agent’s power over a revocable trust is subject to the provisions of the trust.  Estate of: Bernice M. Kane, Power of Attorney, No. 2158 EDA 2016 (Pa. Super. 4/24/2017) (non-precedential), appeal den., 363 MAL 2017 (10/10/2017).

[Comment:  We do not often cite non-precedential opinions because of their limited value, but this case involved some important issues about the relationship between the agent under a durable power of attorney and the trustees of the principal’s revocable trust and the powers of an agent over the revocable trust.  Unfortunately, the agent-appellant failed to provide adequate arguments or authorities, and so was deemed to have waived many issues.  Still, the principles and reasoning of the court may be useful or instructive.]

Agent Surcharged for Breaches of Fiduciary Duties

Agent under power of attorney who was appointed “to serve jointly” with co-agent, but who acted alone, is surcharged for unexplained or unaccounted for expenditures, for changing an IRA beneficiary to herself, which was inconsistent with the principal’s intent as expressed in her will, and for unauthorized purchases on the principal’s credit card, all of which were the result of self-dealing and failure to exercise common prudence in the exercise of her fiduciary duties.  Nixon Power of Attorney, 7 Fid.Rep.3d 81 (O.C. Philadelphia Co. 2016).