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Lawyers as “Specialists” without Certification

Posted on February 24, 2025 by Daniel EvansFebruary 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).

National Elder Law Foundation Reaccredited

Posted on February 21, 2025 by Daniel EvansFebruary 21, 2025

The Supreme Court has reaccredited the National Elder Law Foundation as a certifying organization for elder law for a period of five years. “Reaccreditation of the National Elder Law Foundation as a Certifying Organization for Elder Law; No. 255 Disciplinary Rules Docket” (2/7/2025), 55 Pa.B. 1675 (2/22/2025).

Trust Situs: Jurisdiction, Governing Law, and Taxation

Posted on February 10, 2025 by Daniel EvansFebruary 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 February 6, 2025 by Daniel EvansFebruary 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 January 27, 2025 by Daniel EvansJanuary 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 January 27, 2025 by Daniel EvansJanuary 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 January 23, 2025 by Daniel EvansJanuary 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 January 9, 2025 by Daniel EvansJanuary 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.

Bill	Purpose/Subject	Adds/Amends	Last House Action	Last Senate Action	Act

Bill	Purpose/Subject	Adds/Amends	Last House Action	Last Senate Action	Act
HB 26	Allows income tax refunds to be paid to family members without letters	Adds 20 Pa.C.S. § 3101(f)	Referred to Finance (3/7/23)
HB 40	Excludes property payable under 3101 from $50,000 limit on small estate petitions (was HB 2016 of 2021)	Amends 20 Pa.C.S. § 3102	Referred to Judiciary (3/7/23)
HB 115	Allows unclaimed property to pass to nieces, nephews, grandparents, uncles, and aunts	Amends 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 136	Repeals the inheritance tax (was HB 1148 of 2021 and HB 77 of 2019)	Repeals Article XXI of the Tax Reform Code of 1971	Referred to Finance (3/7/23)
HB 168	Lowers 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 294	Enacts 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 F	Referred to Judiciary (3/10/23)
HB 350	Adopts the Uniform Parentage Act	Amends 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 434	Allows advertisement of grant of letters through a website of the Register rather than a newspaper of of general circulation	Amends 20 Pa.C.S. § 3162	Referred to Judiciary (3/15/23)
HB 543	Allows requests for "compassionate" end-of-life medication for qualified patients	Adds 20 Pa.C.S. § Ch. 54B	Referred to Health (3/20/23)
HB 654	Creates new procedure for descent of primary residences	Adds 20 Pa.C.S. § 3103	Referred to Judiciary (3/21/23)
HB 752	Increases 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 1397	Amends guardianship procedures on counsel for alleged incapacitated person, consideration of less restrictive alternatives, and certification of individuals with three or more appointments as guardian	Amends 20 Pa.C.S. §§ 5511 and 5512.1	Referred to Judiciary (6/13/23)
HB 1460	Requires training of public pension fund and state fund fiduciaries	Adds a new Ch. 74 to Title 20 Pa.C.S.	Referred to Finance (6/21/23)
HB 1636	Applies federal grantor trust rules to PA income tax (see also SB 815)	Amends sections 302 and 305 of the Tax Reform Code of 1971	Referred to Finance (8/29/23)
HB 1760	Amends 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. 88	Third consideration and final passage (12/13/23)	Third consideration and final passage (6/27/24)	Act 40 (7/1/2024)
HB 2064	Requires financial institutions to comply with laws for reporting financial exploitation of older adults	Adds a new chapter to the Older Adults Protective Services Act, No. 79 of 1987	Third consideration and final passage (7/2/24)	Referred to Banking and Insurance (7/17/24)
HB 2204	Exempts all 529 plans from inheritance tax	Amends § 2111 of the Tax Reform Code of 1971 by adding a new subsection (v)	Referred to Finance (4/16/24)
HB 2232	Enacts Uniform Partition of Heirs Property Act	Adds new Chapter 21A to Title 20	Third consideration and final passage (7/2/24)	Referred to Judiciary (7/17/24)
HB 2276	Limits inheritance tax to transfers in excess of $100,000	Amends § 2106 of the Tax Reform Code of 1971	Referred to Finance (5/9/24)
SB 75	Phases 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 1971		Referred to Finance (1/12/23)
SB 77	Creates an inheritance tax "family exemption" deduction of $100,000 (was HB 2016 of 2021)	Amends § 2127(3) of the Tax Reform Code of 1971		Second consideration; re-referred to Appropriations (5/8/24)
SB 506	Amends 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 5512.1	Third consideration and final passage (12/13/23)	Third consideration and final passage (6/26/23)	Act 61 (12/14/2023)
SB 631	New 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 F		Referred to Health and Human Services (4/28/23)
SB 815	Applies 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 816	Enacts "End of Life Options Act" (was SB 405 of 2021)	Adds new 20 Pa.C.S. Ch. 54B		Referred to Judiciary (6/23/23)
SB 1084	Amends UCC for electronic transactions, and agent's access to content of electronic communications	Amends 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 1231	Amends the Uniform Trust Act to include a new subchapter on "directed trusts" and to update some terminology	Amends 20 Pa.C.S. Ch. 77 to include a new Subchapter H.1 and amends numerous other sections	Re-reported from Appropriations; third consideration and final passage (7/3/24)	Third consideration and final passage (6/24/24)	Act 64 (7/15/2024)

York County Fees

Posted on January 3, 2025 by Daniel EvansJanuary 3, 2025

York County has published new fee schedules for its Register of Wills and Clerk of the Orphans’ Court. “Fee Bill for the Office of the Register of Wills; No. 6724-8888” (12/17/2024), 55 Pa.B. 23 (1/4/2025); “Fee Bill for the Office of the Orphans’ Court; No. 6724-9999” (12/17/2024), 55 Pa.B. 22 (1/4/2025).

Indemnification of Agent by Principal’s Estate

Posted on December 29, 2024 by Daniel EvansDecember 29, 2024

It was proper for the Orphans’ Court to dismiss objections to an account of an executor for amounts paid to the executor for legal fees incurred in defending the executor against claims asserted against the executor as agent under the decedent’s general power of attorney when the power stated that the principal agreed to indemnify his agent for all claims that might be made against the agent as a result of his service. It was also proper for the court to dismiss objections to legal fees paid by the estate in connection with the same litigation under the power of attorney because the main issue in the litigation was an estate issue and the attorney for the estate had been allowed to intervene. In re: Estate of Bernard L. Klionsky, 198 WDA 2024 (Pa. Super. 11/21/2024) (non-precedential).