New Pa.R.O.C.P. 1.22 and Non-Precedential Opinions

Posted on by February 24, 2023

The Supreme Court has adopted new Pa.R.O.C.P. 1.22, which provides that “Citation of authorities in matters subject to these rules shall be in accordance with Pa.R.A.P. 126.” “In re: Order Adopting Rule 1.22 of the Pennsylvania Rules of Orphans’ Court Procedure, No. 936 Supreme Court Rules Docket” (2/13/2023), 53 Pa.B. 1052 (2/25/2023). (Rule 1.22 was “attached” to the order, but is a separate document on the AOPC server.)

Pa.R.A.P. 126(b)(2) states that “Non-precedential decisions as defined in (b)(1) may be cited for their persuasive value.”  “Non-precedential decision” is defined by (b)(1) to include an unpublished non-precedential memorandum decision of the Superior Court filed after May 1, 2019.

An Adoption Report of multiple rules committees, including the Orphans’ Court rules committee, was also docketed.

The new rule will be effective April 1, 2023.

[DBE Comment: I have not regularly reported opinions of the Superior Court labeled “non-precedential” because I took the Superior Court at its word and thought that the opinions were non-precedential. But it now appears that non-precedential decisions are semi-precedential. So I will be reporting non-precedential opinions in the future.]

Petition for Removal of Trustee Dismissed

Posted on by June 19, 2023

The Superior Court has affirmed the dismissal of a petition to remove a corporate trustee, finding that the allegations of the petition were not grounds for removal under 20 Pa.C.S. § 7766(b). Specifically, neither changes in staffing by the trustee, nor beginning to require beneficiaries to supply financial information to request discretionary distributions. nor incurring more than $30,000 in legal fees of outside counsel who wrote a “condescending an inappropriate letter” were a “serious breach of trust,’ under § 7766(b)(1), two disagreements between the individual and corporate trustees were not a “lack of cooperation” under § 7766(b)(2), the failure to make regular distributions of income was not a failure to “effectively administer the trust” under § 7766(b)(3) when the trust provided for discretionary distributions, and the staffing changes were not a substantial “change of circumstances” under § 7766(b)(4). In re: Amended and Restated Deed of Trust of Margaret M. Holdship, 288 A.3d 919, 2023 PA Super 11 (1/19/2023), aff’g, 1 Fid.Rep.4th 59 (Allegheny O.C. 2022).

Lackawanna Co. Rules for ACT and Motion Procedure

Posted on by January 27, 2023

Lackawanna County has adopted a new Lacka.Co.R.C.P. 175 for the use of “Advanced Communication Technology” (e.g., videoconferencing), and has amended Rule 208.3(a) on motion procedure, both of which may affect Orphans’ Court practice. “Adoption of Lacka.Co.R.C.P. 175 and Amendments to Lacka.Co.R.C.P. 208.3(a), 211(c), 214(e), 214.2(a) and (c), 1028(c), 1034(a), 1035.2(a) and 4000.1(a) Governing the Use of Advanced Communication Technology (ACT) in Civil Proceedings; No. 23 CV 1” (1/12/2023), 53 Pa.B. 611 (1/28/2023).

[Note: The Orphans’ Court Procedural Rules Committee has proposed a new Pa.R.O.C.P. 1.20 that would allow the Orphans’ Court to conduct proceedings using “advanced communication technology.” See  “Proposed Adoption of Pa.R.O.C.P. 1.20,” 51 Pa.B. 7442 (12/4/2021).]

Increased Guardian Fee in Somerset County

Posted on by January 27, 2023

Somerset County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 9, 2023. “Administrative Order; Administrative Order 1 of 2023″ (1/5/2023), 53 Pa.B. 608 (1/28/2023).

Increased Guardian Fee in York County

Posted on by January 27, 2023

York County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 1, 2023. “Increase in Fees for Court-Appointed Guardian of Medicaid Recipient Incapacitated Persons; No. 6723-0115” (1/12/2023), 53 Pa.B. 610 (1/28/2023).

Trustee Modifications with Consent of Settlor

Posted on by August 11, 2023

The Supreme Court has reversed decisions of the Superior Court and Orphans’ Court and held that a trust modification with the consent of the settlor under 20 Pa.C.S. §7740.1(a) may change the provisions of a trust relating to the appointment of trustees, and allow the beneficiaries to remove and replace trustees. In re: Trust under Deed of Walter R. Garrison, ___ Pa. ___, 288 A.3d 866, 61 MAP 2022, 62 MAP 2022, and 63 MAP 2022 (1/19/2023), rev’g  1429 EDA 2020 (Pa. Super. 9/27/2021) (non-precedential), and 10 Fid.Rep.3d 189 (Montgomery O.C. 2020).

[DBE Comment: As previously noted, the consent of the settlor should have made a difference, and the court was able to distinquish its previous decision in Trust under Agreement of Edward Winslow Taylor, 649 Pa, 649, 164 A.3d 1147 (Pa. 2017), which involved a trust modification without the consent of the settlor under 20 Pa.C.S. § 7740.1(b), and not a trust modification with the consent of the settlor under 20 Pa.C.S. § 7740.1(a).]

[DBE Note: There seems to be a typographical error in the slip opinion, J-57A-C-2022mo. On page 12, the court states, “First, section 7740.1(a) involves unified action by all interests in a trust, i.e., settlor and all trustees, to revoke or modify an otherwise irrevocable trust.” I believe the word “trustees” should be “beneficiaries.”]

Pennsylvania Legislation 2021-2022

The following chart shows the status of legislation introduced in the 2021-2022 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 81Allows intestate heirs to receive unclaimed property without letters (was HB 1724 of 2019)Amends 20 Pa.C.S. § 3101(e) Referred to Judiciary (1/11/21)
HB 169Updates filial obligation lawAmends 23 Pa.C.S. §§ 4602 and 4603Referred to Judiciary (1/14/21)
HB 384Allows guardian of the person to make mental health care decisionsAmends 20 Pa.C.S. § 5521 Referred to Judiciary (2/3/21)
HB 514Prohibits non-compete clauses by purely public charitiesAmends §§ 3 and 5 of the Institutions of Purely Public Charity Act, act of 11/26/1997, No. 55Referred to Finance (2/11/21)
HB 558Exempts transfers of less than $100,000 from inheritance tax (see HB 665 of 2019)Amends § 2106 of the Tax Reform Code of 1971Referred to Finance (2/22/21)
HB 679Exempts transfers by individuals and married couples to wholly owned business entitiesAmends § 1102-C.3 of the Tax Reform Code of 1971Referred to Finance (2/26/21)
HB 1148Repeals inheritance tax (was HB 77 of 2019)Repeals Article XXI of the Tax Reform Code of 1979Referred to Finance (4/8/21)
HB 1342Exempts from inheritance tax transfers of personal property by members of military who die from active dutyAmends § 2111 of the Tax Reform Code of 1971House concurred in Senate amendments (7/7/22)on and final passage (12/13/21)Re-reported as amended from Appropriations; Third consideration and final passage (7/7/22)Section 15.1 of Act 53 (7/8/22)
HB 1523Guarantees that the elective share of a surviving spouse who is also a pretermitted spouse will not be less than an intestate shareAmends 20 Pa.C.S. § 2211Referred to Judiciary (6/1/21)
HB 1534Adds grandchildren to those who can receive bank accounts and unclaimed property without letters, and eliminates dollar limit on unclaimed propertyAmends 20 Pa.C.S. § 3101(b) and (e)Third consideration and passage (9/13/22)Referred to Judiciary (9/13/22)
HB 1558Parent "estranged" from adult child forfeits intestate share of child's estate (was HB 2858 of 2019)Amends 20 Pa.C.S. § 2106Referred to Judiciary (6/7/2021)
HB 1817Creates an inheritance tax "holiday" from enactment through the end of 2021Amends § 2111 of the Tax Reform Code of 1971 by adding a new subsection (g)Referred to Finance (8/31/21)
HB 1822Increases bank accounts not requiring administration from $10,000 to $20,000Amends 20 Pa.C.S. § 3101(b)Third consideration and final passage (12/15/21)Referred to Judiciary (12/29/21)
HB 1890Requires background checks for guardiansAmends 20 Pa.C.S. § 5511(f)Referred to Aging and Older Adult Services (9/21/21)
HB 1973Reduces filings by volunteer fire companies and reduces fines for noncomplianceAmends Solicitation of Funds for Charitable Purposes ActReferred to Finance (10/13/21)
HB 2010Training for public pension fund and state fund fiduciariesAdds 20 Pa.C.S. Ch. 74Referred to State Government (10/26/21)
HB 2016Confirms that real estate and 3101 accounts do not count towards $50,000 limit on small estate petitionAmends 20 Pa.C.S. § 3102Third consideration and final passage (12/15/21)Referred to Judiciary (12/29/21)
HB 2394Enacts new provisions for "Pennsylvania orders for life-sustaining treatment" (POLST) (was HB 987 of 2019 and HB 1196 of 2017)Amends 20 Pa.C.S. Ch. 54 and adds a new Subchapter FReferred to Health (3/9/22)
HB 2754Amends Slayer's Act to impose forfeiture on persons convicted of elder abuse (was HB 1845 of 2019)Amends 20 Pa.C.S. §§ 2106 and 2507 and Ch. 88Referred to Judiciary (7/2122)
SB 383Creates an inheritance tax "family exemption" deduction of $100,000Amends § 2127(3) of the Tax Reform Code of 1971Referred to Finance (3/10/21)
SB 583Phases out inheritance tax on siblings (was SB 27 of 2019)Amends § 2116(a)(1.3) of the Tax Reform Code of 1971Referred to Finance (4/20/21)
SB 683Phases out inheritance tax on ancestors and descendants (was SB 27 of 2019)Amends § 2116(a)(1) of the Tax Reform Code of 1971Referred to Finance (5/17/21)
SB 1034Modifies revocable trusts for marriage, divorce, and the birth of a child and makes other changes to Title 20Amends 20 Pa.C.S. §§ 2022, 2507, 2521, 6111.1, and 7710.2 and enacts new §§ 3327.1, 7710.3, and 7710.4 Referred to Judiciary (1/26/22)
SB 1035Adds new definitions to UTA and conforming amendments, adds new subchapter for "directed trusts," and adds new procedure for nonjudicial account settlementsAmends 20 Pa.C.S. § 7703 and various related sections, adds new Subchapter H.1 to Ch. 77, and adds new § 7785.1Referred to Judiciary (9/26/22)Third consideration and passage (9/21/22)
SB 1321Applies federal grantor trust rules to PA income taxAmends sections 302 and 305 of the Tax Reform Code of 1971Referred to Finance (10/25/22)Third consideration and passage (10/24/22)
SB 1333Amends 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 5512.1Reported as committed from Judiciary; first consideration (9/20/22)

Increased Guardian Fee in Indiana County

Posted on by December 31, 2022

Indiana County has increased the monthly fees of currently serving court-appointed professional guardians for incapacitated individuals who receive a medical assistance long-term care grant to $300.00 per month, effective January 1, 2023. “Increase in Fees for Court-Appointed Guardians of Medicaid Recipient Incapacitated Persons; Administrative Order No. 32-22-0785” (12/12/2022), 52 Pa.B. 8226 (12/31/2022).

Revised Guardianship Forms

Posted on by December 31, 2022

The Supreme Court has rescinded and replaced guardianship Forms G-02, G-03, and G-05 for annual reports and inventories in order to make them easier to complete accurately. “Order Rescinding and Replacing Pennsylvania Orphans’ Court Forms G-02, G-03, and G-05; No. 929 Supreme Court Rules Docket” (12/16/2022), 52 Pa.B. 8199 (12/31/2022).