A child born before the execution of will and not provided for by the will is not entitled to an intestate share of the estate under 20 Pa.C.S. § 2507(4), and preliminary objections to the child’s petition for declaratory judgment were properly granted. Estate of Sidney Rothberg, 2017 PA Super 198 (6/23/2017), aff’g No. 673 AP of 2009 (Philadelphia O.C. 9/8/2016). [Previous decisions involving this same estate.]
It was error for the Orphans’ Court to fail to grant a continuance to a parent to obtain counsel in a proceeding to terminate his parental rights when the parent failed to request counsel from the court but three of the five sets of notices received by the parent instructed the parent to contact the local legal services agency, which the parent did and was told that they do not represent parties in custody matters. In Re: Adoption of C.A.S., 2017 PA Super 193 (6/21/2017).
Property purchased by township through the Project 70 Land Acquisition and Borrowing Act, 72 P.S. §§ 3946.1 et seq., and dedicated to public use as a park, cannot be sold by the township to private developers, and the township cannot grant easements to private developers, without approval of the Orphans’ Court in accordance with the Donated or Dedicated Property Act, 53 P.S. §§ 3381-3386, even after the deed restrictions imposed on the property in accordance with the Project 70 act had been removed by the legislature. In Re: Petition of Borough of Downingtown, 12 MAP 2016 (Pa. 6/20/2017).
The Orphans’ Court has the power to enforce through civil contempt an order requiring a former fiduciary to pay a surcharge in installments, and may order incarceration for the former fiduciary when he contemptuously fails to make the required payments, the restrictions of 42 Pa.C.S. §§ 4132 and 4133 only applying to summary punishments for criminal contempts. In re: Estate of Helen J. DiSabato, 2017 PA Super 185 (6/13/2017).
The Internal Revenue Service has announced a new simplified procedure for obtaining relief for filing a late estate tax return in order to elect portability.
Under IRC section 2010(c)(5)(A), the federal estate tax exclusion amount for a surviving spouse can be increased by the “deceased spousal unused exclusion amount” of the deceased spouse, but only if the executor elects “portability” by filing an estate tax return for the deceased spouse within the time prescribed by law (including extensions) for filing the return.
The IRS does not have the power to extend the time to make an election with the due date is set by statute, but can extend deadlines when the due date is prescribed by regulation. When the combined gross estate and adjusted taxable gifts exceed the base exclusion amount, the due date for the return is prescribed by IRC § 6018(a) and so the IRS does not have the power to allow for a late filed election, but when no estate tax return is required by § 6018(a) and the return is being filed only to make the portability election, the due date is prescribed by Treas. Reg. § 20.2010-2(a) and the IRS can grant an extension of time under Treas. Reg. § 301.9100-3.
Therefore, under the new procedure, a late portability election will be allowed if (1) the estate tax return was not required due to the combined values of the gross estate and total adjusted taxable gifts and (2) the federal estate tax return is filed not later than two years after the decedent’s death or January 2, 2018, whichever is later. A letter ruling not required to take advantage of this new procedure, and so there is no user fee required.
Rev. Proc. 2017-34, 2017-26 IRB 1282 (6/26/2017).
[Note: This Revenue Procedure has been superseded by Rev. Proc. 2022-32, IRB 2022-30 IRB ___ (7/25/2022). See “Late Filing for Portability Extended to Five Years.”]
The Civil Division has jurisdiction over a contractual claim against an estate and its executor, but the trial court erred in “piercing the corporate veil” and finding an executor-beneficiary personally liable for debts incurred by a corporation of which the estate was the sole shareholder and of which the executor was an employee. Mark Hershey Farms, Inc., v. Robinson, 2017 PA Super 306 (9/27/2017) (previous decision, 2017 PA Super 161, having been withdrawn and a petition for reargument was granted).
The Supreme Court has amended Rules of Juvenile Court Procedure relating to dispositional hearings on deliquencies and post-dispositional reviews. “Order Amending Rules 512, 610 and 612 of the Rules of Juvenile Court Procedure; No. 737 Supreme Court Rules Doc.,” 47 Pa.B. 2969 (5/27/2017).
I’ve created a new on-line service that provides specialized calculators for certain estate and tax planning issues. Currently, the following calculators are available:
- Cost/Benefit of Gifts of Appreciating Property
- Cost/Benefit of Grantor Trusts
- Gift Tax on Net-Net Gifts
- Income Tax on Estates and Trusts
- Required Minimum Distributions
- Value of Income and ‘5 & 5’ Power
- Interest on Federal Taxes
- Interest on Pennsylvania Taxes
For additional information about these calculators, see Webcalculators at http://wcalcs.com.
If you are interested in beta testing any or all of these calculators, send me an email (dan@evans-legal.com).
Cambria County has adopted new local Orphans’ Court rules, to be effective July 1, 2017. “Adoption of Local Orphans’ Court Rules; Orphans’ Court Division; Case No. 1256,” (Cambria Co.), 47 Pa.B. 2874 (5/20/2017).
Both the Orphans’ Court of the county where letters of administration were issued and the Civil Division of the county in which the administrator brought a wrongful death and survivor action have jurisdiction over issues relating to the distribution of the judgment proceeds and standing. When post-trial motions question the standing of the plaintiff as an heir, which would invalidate the wrongful death verdict, judicial efficiency requires that the trial court determine the issue of standing before the Orphans’ Court addresses any distribution issues. Brittain v. Hope Enterprises Foundation Inc., 163 A.3d 1029, 2017 PA Super 148 (5/17/2017).