Lawyers as “Specialists” without Certification

Posted on by February 24, 2025

It was not previously reported here, but in late 2024 the Supreme Court amended the Rules of Professional Conduct to update many of the rules relating to lawyer publicity and advertising. A change that might be particularly relevant to estate and trust practitioners is an amendment to expand the circumstances under which a lawyer might claim to be a “specialist.”

Previously, Pa. Rule of Professional Conduct 7.4 had provided that a lawyer (other than a patent lawyer or admiralty lawyer) could not claim to be a “specialist” unless the lawyer had been certified by an organization approved by the Supreme Court. The general rule that a lawyer may not claim to be a specialist continues under amended Rule 7.2(c), but in addition to the previous exceptions, there is a new exception in Rule 7.2(c)(3):

“(3) a lawyer who is not certified as a specialist as described in paragraphs (1) or (2) above may not claim to be a specialist in a particular field of law unless the lawyer can objectively verify the claim based upon the lawyer’s experience, specialized training or education, and the claim is not otherwise false or misleading in violation of Rule 7.1, see Comment (8);
”  (i) a lawyer who communicates a specialty under this paragraph (3) shall include a disclaimer stating that the lawyer is not certified in the claimed specialty;
”  (ii) a lawyer may not claim specialization in more than one field of law;”

The Comment 8 referred to in the above rule provides the following explanation:

“(8)  Paragraph (c) of this Rule generally permits a lawyer to communicate that the lawyer does or does not practice in a particular area of law. Under paragraph (c)(3), a lawyer is permitted to state that the lawyer ”concentrates in” or is a ”specialist,” practices a ”specialty,” or ”specializes in” particular fields based on the lawyer’s objectively verifiable experience, specialized training or education. Such communications are subject to the ”false and misleading” standard applied in Rule 7.1 to communications concerning a lawyer’s services. Authorizing such objectively verifiable statements comports with constitutional limitations on the regulation of commercial speech. Appropriate bases for a lawyer’s claim of specialization under paragraph (c)(3) may include the proportion of the lawyer’s practice devoted to the specialty, the years of experience practicing the specialty, the continued education acquired pertaining to the specialty, and the recency of the experience or education in the field of specialization.”

A lawyer with appropriate experience or education may therefore claim to be an “estate and trust specialist” even without any formal certification.

“Amendment of Rules 5.5, 7.1, 7.2, 7.3, 7.4, 7.5, and 7.7 of the Pennsylvania Rules of Professional Conduct; No. 252 Disciplinary Rules Docket” (10/15/2024), 54 Pa.B. 6696 (10/26/2024).

Trust Situs: Jurisdiction, Governing Law, and Taxation

Posted on by February 10, 2025

The word “situs,” from the Latin for “position” or “location,” is often used in connection with three different issues: which state’s courts have jurisdiction over the administration of the trust, which state’s laws govern the interpretation or administration of the…

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Cumberland Co. Adopts O.C. Discovery Rule

Posted on by February 28, 2025

Cumberland County has adopted a new local rule for discovery in its Orphans’ Court, as well as other local rules for civil actions, and custody and divorce proceedings. “Local Rules; Civil Term; 96-1335 Civil” (1/22/2025), 55 Pa.B. 904 (2/1/2025); “Local Rules; Civil Term; 96-1335 Civil” (2/19/2025), 55 Pa.B. 1792 (3/1/2025).

[Note: It appears that Cumberland County adopted the same rules twice, and the court’s 2/19/2025 order provides no explanation as to why.]

Will Forgery Proved

Posted on by January 27, 2025

In an appeal of a will contest alleging forgery, the appellant waived objections to the propriety of the Orphans’ Court relying on samples of the decedent’s signature that were not formally moved into or admitted into evidence because the court marked the samples as exhibits, took testimony about them, and appeared to intend to use the samples as record evidence and the appellant did not object. It was not an abuse of discretion for the court to find the testimony of the decedent’s lawyer to be credible in denying the authenticity of decedent’s signature on the alleged will even after a motion for reconsideration showing that the lawyer had misled the court on other issues. The findings of the Orphans’ Court that the witnesses to the alleged were “simply mistaken” in their testimony about the preparation and execution of the will were supported by the record, and the will was shown to be a forgery by clear and convincing evidence. In re: Justino Petaccio, Deceased, 635 EDA 2024 (Pa. Super. 12/24/2024) (non-precedential).

Meritless Appeal of Denial of Forgery Claim

Posted on by January 27, 2025

The Orphans’ Court found that the witnesses who testified to the decedent’s signature on the disputed will were credible, and that factual finding was binding on the appellate court. The finding by the Orphans’ Court that the appellant had knowingly and voluntarily disclaimed his rights to the estate was also supported by the record, and so the appellant had no interest in the estate and could not compel an accounting by the executor. These and other issues raised by the pro se appellant were waived by failing to raise them before the Orphans’ Court or were not adequately developed on appeal. In re: Estate of Helen Harm, 1702 EDA 2024 (Pa. Super. 1/14/2025) (non-precedential).

Attorney-Client Privilege for Surviving Spouse

Posted on by January 23, 2025

The “testamentary exception” to the attorney-client privilege would allow the admission of evidence of communications between the decedent and his lawyer in order to carry out the testamentary intentions of the decedent, but the exception will not be extended to communications between the surviving spouse and her lawyer in order to prove a contract to make a will. Kyriakopoulos v. Maigetter, ___ F.4th ___, No. 23-2276 (3rd Cir. 11/20/2024) (precedential; applying Pennsylvania law).

Pennsylvania Legislation 2023-2024

Posted on by January 9, 2025

The following chart shows the status of legislation introduced in the 2023-2024 session of the Pennsylvania legislature that might be of interest to estate and trust practitioners.  Click on the bill number to see the history or text of the bill.

BillPurpose/SubjectAdds/AmendsLast House ActionLast Senate ActionAct
HB 26Allows income tax refunds to be paid to family members without lettersAdds 20 Pa.C.S. § 3101(f) Referred to Finance (3/7/23)
HB 40Excludes property payable under 3101 from $50,000 limit on small estate petitions (was HB 2016 of 2021)Amends 20 Pa.C.S. § 3102Referred to Judiciary (3/7/23)
HB 115Allows unclaimed property to pass to nieces, nephews, grandparents, uncles, and auntsAmends 20 Pa.C.S. § 3101(e)Third consideration and final passage (5/1/23)Third consideration and final passage (7/11/24)Act 65
(7/17/2024)
HB 136Repeals the inheritance tax (was HB 1148 of 2021 and HB 77 of 2019)Repeals Article XXI of the Tax Reform Code of 1971Referred to Finance (3/7/23)
HB 168Lowers the inheritance tax rate for lineal descendants, ascendants, and siblings to 3.07% (or same as income tax rate)Amends § 2111(a)(1) and (1.3) of the Tax Reform Code of 1971 Referred to Finance (4/28/23)
HB 294Enacts new provisions for "Pennsylvania orders for life-sustaining treatment" (POLST) (was HB 2394 of 2021, HB 987 of 2019, and HB 1196 of 2017)Amends 20 Pa.C.S. Ch. 54 and adds a new Subchapter FReferred to Judiciary (3/10/23)
HB 350Adopts the Uniform Parentage ActAmends several sections of Title 23 and adds a new Part IX-A, which includes a new § 9708 on the parental status of a deceased individual Third consideration and final passage (6/24/24)Referred to Judiciary (6/30/24)
HB 434Allows advertisement of grant of letters through a website of the Register rather than a newspaper of of general circulationAmends 20 Pa.C.S. § 3162Referred to Judiciary (3/15/23)
HB 543Allows requests for "compassionate" end-of-life medication for qualified patientsAdds 20 Pa.C.S. § Ch. 54BReferred to Health (3/20/23)
HB 654Creates new procedure for descent of primary residencesAdds 20 Pa.C.S. § 3103Referred to Judiciary (3/21/23)
HB 752Increases bank accounts not requiring administration from $10,000 to $20,000 (was HB 1822 of 2021)Amends 20 Pa.C.S. § 3101(b)Re-committed to Rules (9/22/23)
HB 1397Amends guardianship procedures on counsel for alleged incapacitated person, consideration of less restrictive alternatives, and certification of individuals with three or more appointments as guardianAmends 20 Pa.C.S. §§ 5511 and 5512.1Referred to Judiciary (6/13/23)
HB 1460Requires training of public pension fund and state fund fiduciariesAdds a new Ch. 74 to Title 20 Pa.C.S.Referred to Finance (6/21/23)
HB 1636Applies federal grantor trust rules to PA income tax (see also SB 815)Amends sections 302 and 305 of the Tax Reform Code of 1971Referred to Finance (8/29/23)
HB 1760Amends Slayer's Act to impose forfeiture on persons convicted of elder abuse (was HB 1845 of 2019 and HB 2754of 2021)Amends 20 Pa.C.S. §§ 2106 and 2507 and Ch. 88Third consideration and final passage (12/13/23)Third consideration and final passage (6/27/24)Act 40 (7/1/2024)
HB 2064Requires financial institutions to comply with laws for reporting financial exploitation of older adultsAdds a new chapter to the Older Adults Protective Services Act, No. 79 of 1987Third consideration and final passage (7/2/24)Referred to Banking and Insurance (7/17/24)
HB 2204Exempts all 529 plans from inheritance taxAmends § 2111 of the Tax Reform Code of 1971 by adding a new subsection (v)Referred to Finance (4/16/24)
HB 2232Enacts Uniform Partition of Heirs Property ActAdds new Chapter 21A to Title 20Third consideration and final passage (7/2/24)Referred to Judiciary (7/17/24)
HB 2276Limits inheritance tax to transfers in excess of $100,000Amends § 2106 of the Tax Reform Code of 1971Referred to Finance (5/9/24)
SB 75Phases out inheritance tax on siblings (was SB 27 of 2019 and SB 583 of 2021)Amends § 2116(a)(1.3) of the Tax Reform Code of 1971Referred to Finance (1/12/23)
SB 77Creates an inheritance tax "family exemption" deduction of $100,000 (was HB 2016 of 2021)Amends § 2127(3) of the Tax Reform Code of 1971Second consideration; re-referred to Appropriations (5/8/24)
SB 506Amends guardianship procedures on counsel for alleged incapacitated person, consideration of less restrictive alternatives, and certification of individuals with three or more appointments as guardian (was SB 1333 of 2021)Amends 20 Pa.C.S. §§ 5511 and 5512.1Third consideration and final passage (12/13/23)Third consideration and final passage (6/26/23)Act 61 (12/14/2023)
SB 631New provisions for "PA Orders for Life Sustaining Treatment" (POLST) (was HB 2394 of 2021, HB 987 of 2019, and HB 1196 of 2017)Amends 20 Pa.C.S. Ch. 54 and adds new Subchapter FReferred to Health and Human Services (4/28/23)
SB 815Applies federal grantor trust rules to PA income tax (was SB 1321 of 2021)Amends §§ 302 and 305 of the Tax Reform Code of 1971 Third consideration and final passage (12/12/23)Senate concurs in House amendments (12/13/23)Act 64 (12/14/2023)
SB 816Enacts "End of Life Options Act" (was SB 405 of 2021)Adds new 20 Pa.C.S. Ch. 54BReferred to Judiciary (6/23/23)
SB 1084Amends UCC for electronic transactions, and agent's access to content of electronic communicationsAmends 20 Pa.C.S. § 5601.4(a)(9)Re-reported from Appropriations; third consideration and final passage (6/26/24)Third consideration and final passage (6/5/24)Act 41 (7/1/2024)
SB 1231Amends the Uniform Trust Act to include a new subchapter on "directed trusts" and to update some terminologyAmends 20 Pa.C.S. Ch. 77 to include a new Subchapter H.1 and amends numerous other sectionsRe-reported from Appropriations; third consideration and final passage (7/3/24)Third consideration and final passage (6/24/24)Act 64
(7/15/2024)