A trust may be modified under 20 Pa.C.S. § 7740.1(d) to allow the beneficiaries to remove and replace a corporate trustee without regard to the conditions for removing trustees under 20 Pa.C.S. § 7766. Trust under Agreement of Edward Winslow Taylor, 124 A.3d 334, 2015 PA Super 199, No. 2701 EDA 2014 (9/18/2015), reversing and remanding, Edward Winslow Taylor, Intervivos Trust, No. 3563IV of 1939 (O.C. Phila. 8/18/14), rearg. den. (Pa. Super. 11/25/15), app. pend., No. 15 EAP 2016 (Pa.).
(This article originally appeared in the PBA Real Property, Probate and Trust Law Newsletter, No. 75, p. 19 (Summer 2014).) [This article has not yet been updated to reflect the enactment of the Directed Trust Act as part of Act…
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Provision of will allowing decedent’s wife and daughters to operate “farms” on decedent’s property did not allow the executor to continue to administer the property forty-three years after the decedent’s death when only a part of the property was leased for farming and other parts were used for mining, logging, and a small airstrip with hangars. Albert Estate, 5 Fid.Rep.3d 306 (O.C. Clearfield Co. 2015), aff’d, 1550 WDA 2015 (Pa.Super. 2/22/2017) (non-precedential).
Specific performance of option to purchase real estate was enforced against the estate, notwithstanding delay of more than 10 years from the initial order allowing the exercise of the option and the recording of a lis pendens, the court finding that laches and estoppel did not apply. Frano Estate, 5 Fid. Rep. 3d 291 (O.C. Clearfield Co. 2015), rev. in part and remanded, No. 555 WDA 2015 (Pa. Super. 8/22/2016) (non-precedential).
Objections to executor’s account were denied to the extent they related to a private auction of real estate among the beneficiaries because the sale had been authorized and approved by the court in previous litigation, even though the terms of the sale had been changed, the court finding that the objector had waived her right to object. Objections relating to gas royalties received by the estate were allowed, the court finding that the objector did prove a lifetime assignment of the mineral interests by the decedent to the objector. Krasinski Estate, 5 Fid. Rep. 3d 275 (Clearfield Co. O.C. 2015), aff’d in part, rev’d in part, vacated in part, and remanded, 2018 PA Super 130 (5/15/2018) (en banc), aff’d in part, 40 WAP 2018 and 41 WAP 2018 (Pa. 10/31/2019) (decree denying objector’s interests in real estate was immediately appealable and so failure to appeal waived any right to a later appeal).
As noted earlier, five different Supreme Court procedural rules committees (Criminal, Juvenile, Civil, Domestic Relations, and Orphans’ Court) have joined together to submit a proposal to revise all state-wide rules to require that local rules be published on-line by each county or court through its own website, rather than having a state-wide website for the publication of local rules.
The following comments have been sent by email to the Rules Committees of the Supreme Court of Pennsylvania (rulescommittees@pacourts.us).
These comments are in response to “Proposed Amendment of Pa.R.Crim.P. 105, Pa.Rs.J.C.P. 121 and 1121 and Pa.R.C.P. No. 239 with Rescission of Pa.R.C.P. No. 239.8,” 45 Pa.B. 5384 (8/29/2015).
The purpose of the proposed changes seems generally sound. Having local rules published on the websites of the counties (or local courts), rather than through the Administrative Office of Pennsylvania Courts (AOPC), should make it easier for the public to find relevant rules, and should reduce the administrative burden on the AOPC resulting from duplicative and perhaps unnecessary on-line publications of local rules.
However, there are some details that should be clarified or added to distinguish between (a) the publication of rules at the time of adoption and (b) consolidated sets of rules that should be published for ease of reference. Specifically:
- Each county (or court) should be required to publish on its website consolidations of rules in numerical order, in addition to publishing any orders adopting or amending different rules at different times. For example, the official comment to Pa.R.Crim.P. Rule 105(G) continues to refer to a “consolidated set of rules” that must be maintained at the prothonotary’s office, but there is no similar requirement for copies of rules that must be published on-line because paragraph (F) refers only to publication at the time a rule is adopted.
- Consolidations of local rules should be updated not later than one year after any change to the local rules, so that on-line consolidations must be updated no more frequently than annually.
- It should be sufficient to let the Pennsylvania Bulletin serve as the reference for the history of changes to local rules, and so to prevent clutter (and possible confusion) each county (or court) should be required to maintain on-line copies of changes to rules only as long as the changes have not yet been incorporated into consolidations of local rules.
- Although many counties are now publishing local rules through their websites, finding the rules is often not easy. For example, local Orphans’ Court rules might be found through the web pages of the Register of Wills, the Clerk of the Orphans’ Court (if different from the Register), the Clerk of Courts (if that officer is also the Clerk of the Orphans’ Court), the Prothonotary, or in a separate location devoted to all local rules. As a convenience for possible compliance checking, as well as a service to the public, each court should be required to provide the AOPC with the URL (or URLs) for the consolidation of its local rules, or the webpage(s) on which orders and consolidations can be found, and the AOPC should publish an on-line index of links to those URLs. This on-line index would require some initial effort to set up, but would require very little maintenance because URLs for local rules should change rarely, if at all. (As an example of such an index, see http://resources.evans-legal.com/?p=1936 for my index of local Orphans’ Court rules.)
Thank you for your consideration of these comments.
Daniel B. Evans
Evans Law Office/Evans Estate Law Resources
P.O. Box 27370
Philadelphia, PA 19118
866-348-4250, x101
Five different Supreme Court procedural rules committees (Criminal, Juvenile, Civil, Domestic Relations, and Orphans’ Court) have joined together to submit a proposal to revise all state-wide rules to require that local rules be published on-line by each county or court through its own website, rather than having a state-wide website for the publication of local rules.
Currently, some rules require that local rules be published through the Unified Judicial System’s web portal. (See, for example, Pa.R.Crim.P. Rule 105(F)(2) and https://ujsportal.pacourts.us/LocalRules/RuleSelection.aspx) According to the committees, this procedure was conceived in the 1990s “as a means of compiling the rules when technological resources at the county level could not easily do so,” but that 49 of the 67 counties now maintain local rules on their county website. The committees believe that the proposed change “will promote uniformity among the counties regarding the availability of local rules, offer convenience to users who may intuitively look to the county website for local rules of procedures in that county, and eliminate duplicity with the compilation and maintenance of local rules on both the county and multiple UJS websites.”
If this proposal goes forward, the Orphans’ Court Procedural Rules committee would revise the currently proposed version of Pa.O.C. Rule 1.5 to incorporate the changes to be made to Pa.R.Crim.P. Rule 105.
The committees invite comments, objections, and suggestions concerning this proposal. (See my comments here.)
“Proposed Amendment of Pa.R.Crim.P. 105, Pa.Rs.J.C.P. 121 and 1121 and Pa.R.C.P. No. 239 with Rescission of Pa.R.C.P. No. 239.8,” 45 Pa.B. 5384 (8/29/2015).
Counsel fees of $34,848, paid from an estate of $102,852, reduced to $18,000, and executor surcharged for excess, when the testimony of counsel was conclusory and failed to justify the fee paid from an estate with no unusual complexities or difficulties. Susick Estate, 6 Fid.Rep.3d 209, No. 886 DE of 2013 (O.C. Philadelphia Co. 8/18/2015) (Opinion sur appeal by Carrafiello, J.), aff’d, No. 1518 EDA 2015 (Pa.Super. 5/11/16) (non-precedential).
In Notice 2015-57, the IRS has announced that the due date for the first new tax basis reports that must be filed under new IRC section 6035 is postponed to February 29, 2016.
The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (enacted 7/31/2015 as P.L. 114 – 41), created new sections 1014(f) and 6035, which require basis reporting for income tax purposes consistent with the values reported for federal estate tax purposes. New section 6035 requires that that basis statements be filed with the IRS and affected beneficiaries within 30 days of the filing of an estate tax return (or the date the estate tax return is due), beginning with returns filed after the date of enactment, which means that statements could be due as early as August 30. In order to allow the Treasury Department and IRS to issue guidance implementing the reporting requirements of section 6035, the due date for statements required before February 29, 2016, is delayed to February 29, 2016.
The Treasury Department and the IRS are inviting comments on possible regulations or other guidance, and comments can be submitted to:
CC:PA:LPD:PR (Notice 2015 – 57), Room 5203
Internal Revenue Service
P.O. Box 7604
Ben Franklin Station
Washington, DC 20044.
Submissions may be hand delivered Monday through Friday between the hours of 8 a.m. and 4 p.m. to
CC:PA:LPD:PR (Notice 2015 – 57)
Courier’s Desk
Internal Revenue Service
1111 Constitution Avenue, NW
Washington, DC 20044
Comments may also be sent by email to Notice.comments@irscounsel.treas.gov with “Notice 2015-57” in the subject line.
The principal author of the notice is Theresa Melchiorre of the Office of the Associate Chief Counsel (Passthroughs & Special Industries), (202) 317-6859.
An Orphans’ Court judge has entered an order declaring to be valid a same-sex common law marriage entered into before common law marriages were abolished in Pennsylvania in 2005.
The case is Estate of Kimberly M. Underwood, No. 2014-E0681 (O.C. Bucks Co.), and the one-page order was entered by Judge C. Theodore Fritsch Jr. on 7/29/2015.
According to the docket, citations were issued to the Attorney General of Pennsylvania, the Pa. Department of Revenue, and several insurance companies, and the order states that no objections or oppositions were filed by any of the parties served.
The order does not cite any authority or provide any reasoning, but simply states that:
This Court hereby declares that Sabrina L. Maurer and Kimberly M. Underwood entered into a valid and enforceable marriage, under Pennsylvania common law, on September 2, 2001 and remained married under the laws of the Commonwealth of Pennsylvania until the time of Kimberly M. Underwood’s death on November 20, 2013. Their marriage is valid and enforceable, and they are entitled to all rights and privileges of validly licensed, married spouses in all respects under the laws of the Commonwealth of Pennsylvania.
The case is somewhat unusual in that the parties were married in a public ceremony, in a church in New Jersey, which is not your typical common law marriage.