In a series of orders issued November 3, 2023, the Supreme Court has (a) adopted Rules of Judicial Administration that provide principles of construction for all procedural and evidentiary rules and (b) amended Pa.R.O.C.P. 1.2 (and other civil and criminal rules) to incorporate the new Rules of Judicial Administration. The combined report of the various rules committees state that the purpose of these changes is to “provide for uniform rules of construction for all procedural and evidentiary bodies of rules.” “In re: Order Amending Rule 1.2 of the Pennsylvania Rules of Orphans’ Court Procedure, No. 966 Supreme Court Rules Docket,” 53 Pa.B. 7151 (11/18/2023); “In re: Order Adopting Rules 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, and 115 of the Pennsylvania Rules of Judicial Administration, No. 600 Judicial Administration 2023,” 53 Pa.B. 7124 (11/18/2023).
The Pennsylvania legislature has passed, and Governor Shapiro has signed into law, a renewed section 2802-E of the Administrative Code of 1929, Act of April 9, 1929, P.L. 177, No. 175, to reimpose the “JCP” temporary surcharges of $10.00 and $11.25 that had expired on July 31, 2023. See, Act of November 1, 2023, No. 22,
The new section appears to be effective immediately (meaning as of the date of enactment, November 1, 2023), and will expire July 31, 2025. The total JCP fees will therefore return to $40.25, which was the same total that had been in force before the previous surcharges had expired.
See “JCP Fee Expired in Part” for additional information on the history of these fees.
A surviving spouse who received erroneous legal advice and failed to elect against the will should not be required to pay legal fees of the executor when she mistakenly files objections to the account of the executor and then withdraws the objections when advised by the court that the objections are not proper because her conduct was not “vexatious.” In re: Estate of William H. Simpson, ___ A.3d ___, 2023 PA Super 221 (10/31/2023).
The denial of disqualification of counsel representing multiple beneficiaries is not an appealable order under the collateral order doctrine even when there is alleged to be a non-waivable conflict of interest among the beneficiaries when the counsel did not previously represent other parties and there is no other allegation of irreparable harm. In re: Shirley Weingberg Revocable Trust, 940 WDA 2022 (Pa. Super. 11/2/2023) (non-precedential). (In a concurring opinion, Justice Bowes concluded that the appeal was frivolous and a proper subject of an award of legal fees.)
When a trust has given the surviving spouse an unlimited right to withdraw principal and a later amendment gives the spouse the right to withdraw the greater of $5,000 or 5% of the trust principal, the amendment demonstrates the intention of the settlor to limit the right of withdrawal and the original right of unlimited withdrawal is superseded and replaced. O’Sheill Trust, 1 Fid.Rep.4th 99 (Warren O.C. 2022), and O’Sheill Trust (No. 2), 1 Fid.Rep.4th 107 (Warren O.C. 2022), aff’d 555 WDA 2022 (Pa. Super. 1/23/2023).
Voiding an act of self-dealing by an executor, and not surcharge, is a proper remedy when the recipient of the transfer of estate property is the executor’s wife and she is complicit, and the transfer cannot be justified as an exchange for a claim against the estate when the claim represents a conflict of interest and was for less than the appraised value of the property. DiMatteo Estate, 1 Fid.Rep.4th 97 (Allegheny O.C. 2022), aff’d 362 WDA 2022 (Pa. Super. 1/27/2023) (non-precedential).
[For a related decision in the same case, see “Conveyance of Real Estate Set Aside for Self-Dealing.”]
Executor was removed who failed to probate will for five years and then failed to make any distribution of the estate for nine years, failing to give notices of estate administration, failing to advertise the grant of letters, failing to collect all of the assets of the estate, selling two parcels of real estate without advising the beneficiaries or establishing a separate estate account, and commingling the proceeds of sale with his personal assets. Estate of Karn, 1 Fid.Rep.4th 92 (Allegheny O.C. 2021), aff’d 647 WDA 2021 (Pa. Super. 11/18/2021) (non-precedential).
It was a breach of fiduciary duty for the trustee to fail to ensure legal fees were reasonable and failing to review and question the fees charged, which were excessive in relation to the value of the trust (almost one third of the value of the trust), the hourly rates that were charged exceeded the rates charged by other lawyers with similar skill and experience, the legal services included preparation of a “form template” petition for a “vanilla” adjudication, attorney time was spent at a deposition to which the trustee was not directly related, and the invoices included duplicate billing for different lawyers performing the same tasks in violation of the fee agreement, and so a surcharge of the trustee was warranted. Vaccarello Trust, 1 Fid.Rep.4th 77 (Montgomery O.C. 2022).
It was not an abuse of discretion for the Orphans’ Court to dismiss the incapacitated person’s petition to reconsider or modify the original adjudication of incapacity without a hearing when the petition merely alleged that the incapacitated person “no longer exhibits the behavior pattern” that led to the original petition without any allegation of any evidence that what was found to be a permanent short-term memory impairment that was unlikely to change had actually changed. The Superior Court also affirmed the denial of a change of guardian, the denial of a declaratory judgment as to testamentary capacity, and the denial of legal fees for counsel engaged by the incapacitated person. In re: Guardianship of H.T., 1675 MDA 2022 (Pa. Super. 10/18/2023) (non-precedential).
A revocable trust was a “living trust” and so exempt from realty transfer tax even though the trust document originally allowed distributions to persons other than a settlor if a settlor became incapacitated because a retroactive modification of the trust under 20 Pa.C.S. § 7740.6 to carry out the settlors’ tax objections was approved by the court and the modification was effective even though the petition was filed after the realty was transferred and even though the Commonwealth was not a party to the modification proceeding. Ebersole v. Commonwealth, ___ A.3d ___, 360 F.R. 2020 (Cmwlth. 10/10/2023).