One co-executor surcharged for legal fees paid to defend criminal harassment charge by beneficiary; another executor surcharged for payment of invoices for work supposedly done by the executor during decedent’s lifetime when there was a lack of credible evidence that the invoices were submitted to decedent during her lifetime; oral contract by decedent to sell property to a beneficiary denied, the court finding that the beneficiary was acting as the decedent’s property manager, but claims for rents paid to the beneficiary were denied as outside the four year statute of limitations; executors’ commissions in excess of Johnson Estate schedule upheld due to the number and condition of the real properties owned by the decedent and the difficulties of dealing with the contentious relationships among the siblings-beneficiaries; and lifetime gifts of jewelry by the decedent denied due to lack of donative intent. McCusker Estate, 5 Fid. Rep. 3d 82 (O.C. Delaware Co. 2015) (Opinion by Kenney, P.J.)
The Orphans’ Court refused to enter a judgment on an arbitration award when the petitioner failed to identify the arbitrator, the date and place of the arbitration hearing, and the details of the notice or service used to establish jurisdiction over the respondent, and the petitioner failed to address the issue of whether the Orphans’ Court had jurisdiction to confirm the arbitration award and enter a judgment on the award. Roosevelt-Bentman Trust for American Voters, No. 608IV of 2014 (O.C. Phila. 2/2/2015) (Memorandum of Carrafiello, J.).
Orphans’ Court had no in personam (personal) jurisdiction over administrator of Virginia estate who resided in New Jersey, and the court could not order the distribution of assets of the Virginia estate to the personal representative of a Pennsylvania beneficiary. Estate of Elwood Rucker, No. 1229DE of 2013 (O.C. Phila. 1/12/2015) (Opinion of Herron, J.).
Orphans’ Court has subject matter jurisdiction over claim by the personal representative of of the estate of a nonresident decedent to real estate in Pennsylvania, and dismissal of petition could not be sustained as a demurrer when petitioner had no opportunity to amend the petition. Estate of Patricia Amelie Logan Gentry v. Diamond Rock Hill Realty, LLC, 2015 PA Super 40, No. 2020 EDA 2014 (2/20/2015).
Previously overlooked: The report of the Supreme Court’s Elder Law Task Force was released in November 2014. The press release announcing the report, titled “Elder Law Task Force delivers report with recommendations to aid Supreme Court in protecting
elders from abuse and neglect,” was dated 11/14/2014.
The property that is owned by a decedent at death is administered by the executor or administrator of the decedent’s estate and is always subject to the claims of the decedent’s creditors. The Probate, Estates and Fiduciaries Code (“PEF Code”),…
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An action against an agent to recover assets transferred by the agent during the decedent’s lifetime was not barred by the two year statute of limitations under 42 Pa.C.S. § 5524, and was not barred by laches, when there was a delay in probate due to a dispute over domicile and the executors were not able to act due to conflicts of interest. Under 20 Pa.C.S. § 5611, gifts by agent under New Jersey power are to be judged by Pennsylvania law, and therefore limited by 20 Pa.C.S. § 5601.2 (before Act 95 of 2014). Lower court order denying discovery was not appealable as a final order or as a collateral order. In re: Estate of Leonard J. Moskowitz, 115 A.3d 372, 2015 Pa Super 23, No. 3302 EDA 2013 (2/4/2015), on rehearing, 2015 PA Super 112 (5/8/2015), rearg. den. (6/30/15), app. den., No. 580 MAL 2015 (12/11/2015).
Beneficiaries named in a trust amendment prepared by a lawyer have standing as third-party beneficiaries to sue the lawyer for breach of contract when the trust amendment was never executed due to an admitted “oversight” by the lawyer. Estate of Robert H. Agnew v. Ross, 110 A.3d 1020, 2015 PA Super 22, No. 2195 EDA 2014 (2/2/2015), rev’d, 152 A.3d 247, No. 76 MAP 2015 (Pa. 1/19/2017).
According to the Analytical Perspectives volume from President Obama’s fiscal 2016 budget proposal, the President will be proposing that transfers at death or by gift should result in the recognition of gain. From the volume:
In the case of a gift, the gain would be taxable on the donor’s income tax return for the year in which the gift was made. In the case of death, the tax would be reported either on the decedent’s final income tax return or on a new income tax return created for this purpose. The proposal would exempt gain on household furnishings and personal effects (excluding collectibles) and allow a $100,000 exclusion of other gains recognized at death (which would be indexed for inflation and would be portable to a surviving spouse resulting in a $200,000 per couple exclusion). In addition, the current law ($250,000 per person) exclusion of capital gains from a principal residence would apply to all residences at death. If any share of a personal residence is bequeathed to a spouse, the spouse would be allowed the use of the first spouse’s exclusion of gain (that is, the $250,000 personal residence exclusion would be portable). The unlimited use of capital losses and carryforwards would be allowed against ordinary income on the decedent’s final income tax return, and the capital gains tax imposed at death would be deductible on the decedent’s estate tax return. Appreciated property given to charity would be exempt from the capital gains tax. Gifts or bequests to a spouse would carry the basis of the donor or decedent, and capital gain would not be realized until the spouse disposes of the asset or dies. The proposal would provide for the deferral of tax payment (with interest) on the appreciation of certain small family-owned businesses, until the business is sold or transferred to owners outside the family. The proposal would further allow a 15-year fixed-rate payment plan for the capital gains tax on assets other than liquid assets such as publicly traded financial assets transferred at death. This proposal would be effective for gifts, deaths, qualified dividends received, and other capital gains realizations in taxable years beginning after December 31, 2015.
This proposal would seem to suffer from the same problem as past proposals for carry-over basis, which is that it requires the determination of the tax basis for assets after the death of the owner.
The President is also proposing that Congress restore federal estate, gift, and generation-skpping tax rates and exclusions to their 2009 levels (meaning an exclusion of $3,500,000 and a top tax rate of 45%).
Quantum meruit claim for lifetime services by licensed nurse practitioner allowed for two years before death (not barred by statute of limitations), even though she had already been compensated for nursing services, because her services were beyond those of a nurse or care giver, but were that of a “house manager/administrator/healthcare professional.” Rubenstein Estate, 5 Fid. Rep. 3d 52 (O.C. Philadelphia Co. 2014) (Audit memorandum by Herron, J.)