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Comments to Proposed Amendment to Pa.O.C. Rule 10.5(a)

Posted on March 26, 2021 by Daniel EvansMarch 26, 2021

The following comments have been submitted to the Orphans’ Court Procedural Rules Committee on the proposed rule change for notice by successor personal representatives.

March 26, 2021

Pamela S. Walker, Counsel
Orphans’ Court Procedural Rules Committee
Supreme Court of Pennsylvania
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635

Via Email orphanscourtproceduralrules@pacourts.us

Re: Proposed Amendment of Rule 10.5 of the Pennsylvania Orphans’ Court Rules, 51 Pa.B. 1651 (3/27/2021)

Dear Ms. Walker:

I agree with the general principle that a notice of estate administration should be given to interested parties when there is a change in personal representatives, just as a notice to current trust beneficiaries is required under 20 Pa.C.S. § 7780.3(g) whenever there is a change in trustees, but I think that there are two weaknesses in the proposed change to Rule 10.5(a).

The first weakness is that the proposed reference to “a personal representative to whom letters have been granted” and the reference in the amended note to “all personal representatives” when taken together would suggest that, when two personal representatives are granted letters, both must give notice. That would be unnecessary, and I think that the problem is in the wording of the note and not the wording of the rule itself.

The other weakness is that there can be a change in personal representatives without a grant of letters. For example, it is possible for letters to be granted to two persons and for one of them to die during the administration of the estate, leaving the survivor to serve as sole personal representative. While there is currently no rule or statute allowing the resignation of a personal representative, it may be possible for a will to allow the resignation of a co-executor. Regardless of how it might happen, I think the loss of a personal representative is also worthy of a notice to interested parties, just as the loss of a co-trustee would require notice under § 7780.3(g).

My final comment is that the phrase “to whom letters have been granted” seems superfluous because a personal representative is necessarily a person to whom letters have been granted.

I would therefore suggest the following changes in the wording of the rule and the note:

Rule 10.5(a) should be amended to read, “Within three (3) months after [the] a grant of letters, and whenever there is a change in personal representatives, [the] a personal representative [to whom original letters have been granted] or the personal representative’s counsel shall send a written notice of estate administration in the form approved by the Supreme Court to:”
The note should be amended to read “Subparagraph (a) applies to an original grant of letters and to all changes in personal representatives, including a grant of letters to a successor personal representative and the death of a personal representative when there are other personal representatives who continue to serve.”

Thank you for your consideration of these comments and suggestions.

Sincerely yours,
Daniel B. Evans

Proposed Rule Change for Notice by Successor Personal Representatives

Posted on March 26, 2021 by Daniel EvansMarch 26, 2021

The Orphans’ Court Procedural Rules Committee has proposed an amendment to Pa.O.C. Rule 10.5(a), regarding notice of estate administration, that would change “the personal representative to whom original letters have been granted” to “a personal representative to whom letters have been granted.” The Note to Rule 10.5 would be amended to state that the rule applies to a successor personal representative. According to the publication report of the committee, “Requiring successor personal representatives to notify the interested persons of the change in representative ensures the recipients are aware of the change and know to whom they should look for information going forward.” “Proposed Amendment of Rule 10.5 of the Pennsylvania Orphans’ Court Rules,” 51 Pa.B. 1651 (3/27/2021).

Comments may be submitted to orphanscourtproceduralrules@pacourts.us by May 7, 2021.

(A comment has been submitted.)

Checking Status of Inheritance Tax Returns

Posted on March 25, 2021 by Daniel EvansMarch 6, 2024

There is now a page on the Department of Revenue “Pennsylvania Tax Hub” website (https://mypath.pa.gov) where you can find the status of an inheritance tax return that has been filed, based on the decedent’s social security number and last name. From the home page, ignore the login box and scroll down to click on “Track My Inheritance Tax Return” in the lower left corner of the home page.

There seem to be only three responses:

That no return has been received
That a return has been received but has not yet been processed (which they say could take six months).
That a return has been received and has been processed (meaning that a notice of appraisement has been issued or is about to be issued).

This could be useful in confirming that a return was received, and whether or not it has been reviewed.

[Updated 3/6/2024 to correct link.]

One Month Deferral for Pa. Personal Income Tax Returns

Posted on March 20, 2021 by Daniel EvansMarch 20, 2021

On March 18, the Pa. Department of Revenue announced that it would extend the deadline for filing 2020 personal income tax returns, and paying any tax owed, from April 15 to May 17. The Internal Revenue Service had announced a similar decision on March 17.

Unlike the IRS announcement, the Dept. of Revenue press release refers to “taxpayers” and not “individuals,” and so the announced extension should apply to estates and trusts as well as individuals. (The reference in the announcement to “personal income tax” does not exclude estates and trusts because they are included in Article III of the Tax Reform Code of 1971, which is titled “Personal Income Tax.”)

Limits on Public Access to Unified Judicial System Case Records

Posted on March 19, 2021 by Daniel EvansMarch 19, 2021

The Administrative Office of Pennsylvania Courts has revised and republished the list of applicable authorities that restrict public access to court records. “Case Records Public Access Policy of the Unified Judicial System of Pennsylvania,” 51 Pa.B. 1497 (3/20/2021).

The revisions do not affect the provisions for the Orphans’ Court that can be found in “Public Access Policy Compliance for Orphans’ Court Filings.”

One Month Deferral for Individual Federal Income Tax Returns

Posted on March 18, 2021 by Daniel EvansMarch 20, 2021

In Information Release IR-2021-59 (3/17/2021), the Internal Revenue Service has announced that, due to the continuing COVID-19 pandemic, the filing date for individual income tax returns will be extended from April 15, 2021 to May 17, 2021.

The postponement also applies to 2020 income tax payments due on April 15, but does not apply to 2021 estimated tax payments that are due on April 15.

It is not clear whether this relief applies to estates and trusts as well as individuals, because estates and trusts are often treated in the same way as individuals, but the relief clearly does not apply to corporations or other business filings.

More formal guidance is promised “in the coming days.”

[Updated 3/20/2021 to reflect the announcement of similar relief by the Pa. Dept. of Revenue.]

Administrator’s Travel Expenses Allowed in Part

Travel expenses of the administrator were allowed for gas, U-Haul rentals, and hotels over the objections of creditors of an insolvent estate, the court finding that the trips from the administrator’s home in Florida to Pennsylvania were reasonable and appropriate, but unsubstantiated “cash expenses” were denied. Administrator’s commission allowed consistent with Johnson Estate schedule. Boucher Estate, 10 Fid.Rep.3d 365 (Monroe O.C. 2020).

Evidence of Undue Influence Barred; Fraud and Forgery not Proven

On an appeal from probate, petitioner failed to answer discovery requests and was sanctioned by being barred from introducing evidence of undue influence or lack of capacity. For the remaining allegations of fraud and forgery, the petitioner did not present any evidence that the decedent was tricked into signing the will, and the only evidence of forgery was the opinion of a document examiner, which was contradicted by the testimony of the lawyers who witnessed the decedent sign the will. Gallo Estate, 10 Fid.Rep.3d 357 (Monroe O.C. 2020).

Directory of Legislation Archived and Reset

Posted on February 28, 2021 by Daniel EvansFebruary 28, 2021

The directory of 2019-2020 Pennsylvania legislation has been archived, and the directory of pending legislation has been reset with links to bills in the current session.

Pennsylvania Legislation 2019-2020

The following chart shows the status of legislation introduced in the 2019-2020 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
HB 30	Doubles the allowable contribution to the Robert P. Casey Memorial Organ and Tissue Donation Awareness Trust Fund for two year renewals of vehicle registrations	Amends 20 Pa.C.S. § 8621(b)(1)	Third consideration and final passage (4/15/19); House concurred in Senate Amendments (11/19/20)	Third consideration and final passage (11/17/20)	Act 115 (11/25/20)
HB 77	Repeals the inheritance tax	Repeals Article XXI of the Tax Reform Code of 1971	Referred to Finance (1/28/2019)
HB 262	Sets inheritance tax rate of 0% for transfers to children under 21 (was HB 291 of 2017); Allows revocable trust to be treated as part of estate for income tax purposes	Amends §§ 2116 and 331(g) of the Tax Reform Code of 1971	Third consideration and final passage (4/15/19); House concurred in Senate Amendments (6/28/19)	Reported by Appropriations as amended; third consideration and final passage (6/27/19)	Act 13 (6/28/2019)
HB 397	Allows consensual electronic monitoring in health care facilities (was HB 2578 of 2017)	Adds Chapter 8-A to Health Care Facilities Act, No. 48 of 1979	Referred to Health (4/25/19)
HB 398	Creates a private cause of action for certain financial crimes (was HB 2579 of 2017)	Amends Older Adult Protective Act	Referred to Aging and Older Adult Services (5/2/19)
HB 399	Allows for concurrent jurisdiction of Attorney General for financial exploitation investigations (was HB 2579 of 2017)	Adds 18 Pa.C.S. § 3922.1	Referred to Aging and Older Adult Services (5/2/19)
HB 400	Prohibits abuse of care dependent individuals through social media (was HB 2582 of 2017)	Amends 18 Pa.C.S. § 2713.1	Re-reported as committee from Appropriations; third consideration and final passage (6/10/20)	Referred to Judiciary (6/17/20)
HB 535	Protection of elders from abuse through powers of attorney	amends 20 Pa.C.S. §§ 5601 and 5604	Referred to Judiciary (2/19/19)
HB 597	Voids non-compete clauses by purely public charities	Amends Institutions of Purely Public Charity Act, No. 55 of 1997	Referred to Finance (3/1/19)
HB 655	Exempts transfers of $250,000 or less from inheritance tax (Was HB 143 of 2017)	Amends § 2106 of the Tax Reform Code of 1971	Referred to Finance (3/1/19)
HB 706	Allows revocable trusts to be treated as part of estate for income tax purposes	Adds § 336.3 to the Tax Reform Act of 1971	Third consideration and final passage (4/16/19)	Referred to Finance (4/22/19)	Became part of Act 13 (6/28/19)
HB 725	Exempts transfers of $100,000 or less from inheritance tax (Was HB 143 of 2017)	Amends § 2106 of the Tax Reform Code of 1971	Referred to Finance (3/6/19)
HB 734	Provides criteria for hospitals as institutions of purely public charity	Amends section 2(b) of Article VIII of the Pennsylvania Constitution	Referred to Insurance (3/12/19)
HB 831	Adds "granges" as a criteria for a purely public charity (was HB 2094 of 2017)	Amends section 5 of the Institutions of Purely Public Charity Act	Referred to Finance (3/14/19)
HB 899	Allows guardians of incapacitated persons to make mental health care decisions	New 20 Pa.C.S. § 5521(d.1)	Referred to Judiciary (3/20/19)
HB 987	Enacts new provisions for "Pennsylvania orders for life-sustaining treatment" (POLST) (was HB 1196 of 2017)	Amends 20 Pa.C.S. Ch. 54 and adds a new Subchapter F	Referred to Health (3/27/19)
HB 1207	Exempts from realty transfer tax transfers of property by heirs with income at or below poverty line	Amends § 1102-C.3 of the Tax Reform Code of 1971	Referred to Finance (4/15/19)
HB 1222	Consolidates Solicitation of Funds for Charitable Purposes Act and Institutions of Purely Public Charity Act into Title 20 Pa.C.S.	Enacts 10 Pa.C.S. Ch. 1, 11, 13, and 23, and repeals Solicitation of Funds for Charitable Purposes Act and Institutions of Purely Public Charity Act	Re-reported as committed from Appropriations; third consideration and final passage (6/19/19)	Second consideration and re-referred to Appropriations (10/23/19)
HB 1286	Requires long-term nursing facilities to publish ratings	Amends § 809 of Health Care Facilities Act, No. 48 of 1979	Referred to Health (4/25/19)
HB 1287	Creates a Culture and Quality of Life Certification Program	Adds a § 822 to Health Care Facilities Act, No. 48 of 1979	Referred to Health (4/25/19)
HB 1676	Allows advertisement of grant of letters through the website of the Register of Wills instead of by a newspaper of general circulation	Amends 20 Pa.C.S. § 3162(a)	Referred to Judiciary (6/25/19)
HB 1724	Allows intestate heirs to receive unclaimed property without letters	Amends 20 Pa.C.S. § 3101(e),	Referred to Judiciary (7/16/19)
HB 1769	Allows charities to fund gift annuities through commercial annuities	Amends Charitable Gift Annuity Exemption Act	Third consideration and final passage (5/14/20)	Reported as committed by Banking and Insurance; first consideration (9/21/20)
HB 1826	Reduces financial statement requirements certain charities	Adds §§ 3 and 5 of the Solicitation of Funds for Charitable Purposes Act	Referred to Finance (9/17/19)
HB 1845	Adds elder abuse to forfeitures of intestacy and modifications of wills	Amends 20 Pa.C.S. §§ 2106 and 2507 and Ch. 88	Referred to Judiciary (9/23/19)
HB 1884	Sets inheritance tax rate of 0% for transfers to children with disabilities	Amends §§ 2102 and 2116 of the Tax Reform Code of 1971	Referred to Finance (9/26/19)
HB 2209	Requires background checks for court-appointed guardians	Amends 20 Pa.C.S. § 5511(f) and adds new subsection (g)	Referred to Aging and Older Adult Service (1/13/20)
HB 2336	Exempts from realty transfer tax transfers by an individual to an entity wholly owned the individual or spouse	Amends § 1102-C.3 of the Tax Reform Code of 1971	Referred to Finance (3/10/20)
HB 2370	Electronic notarization of documents	Amends 42 Pa.C.S. Ch. 62 and 57 Pa.C.S. § 320	Third consideration and final passage (4/29/20); concurs in Senate amendments (10/21/20)	Third consideration and final passage (10/20/20)	Act 97 (10/29/2020)
HB 2408	Exempts CARES Act payments and loan forgiveness from state and local taxation, and amends provisions for percentage distributions from charitable trusts and nonprofit corporations	Adds § 104-A and 105-A to the Fiscal Code	Third consideration and final passage (5/4/20)	Second consideration; Re-referred to Appropriations (5/12/20)
HB 2446	Excludes pensions from effects of divorce	Amends 20 Pa.C.S. § 6111.2(a)(2)	Referred to Judiciary (4/27/20)
HB 2484	Amends provisions for percentage distributions from charitable trusts and nonprofit corporations	Amends 15 Pa.C.S. § 5548 and 20 Pa.C.S. § 8113	House concurred in Senate amendments (7/14/20)	Re-reported as committed from Appropriations; third consideration and final passage (7/14/20)	Act 71 (7/23/20)
HB 2858	Parent "estranged" from adult child forfeits intestate share of child's estate	Amends 20 Pa.C.S. § 2106	Referred to Judiciary (9/14/20)
SB 23	Guardianship reform (similar to S.B. 884 of 2017)	Amends 20 Pa.C.S. §§ 751 and 752, Ch. 55		Referred to Judiciary (4/3/2020)
SB 27	Phases out inheritance tax on siblings	Amends § 2116(a)(1.3) of the Tax Reform Code of 1971		Referred to Finance (1/11/19)
SB 28	Phases out inheritance tax on lineal descendants and ancestors	Amends § 2116(a)(1) of the Tax Reform Code of 1971		Re-referred to Appropriations (6/24/19)
SB 142	Implements Pa. Orders for Life Sustaining Treatment (POLST)	Amends 20 Pa.C.S. Ch. 54 and enacts new Subchapter F		Referred to Health and Human Services (1/31/19)
SB 187	Provides for a state-wide registry of living wills	Amends 20 Pa.C.S. Ch. 54		Referred to Judiciary (2/1/19)
SB 320	Enacts the Revised Uniform Fiduciary Access to Digital Assets Act. (Was SB 827 of 2017)	Amends 20 Pa.C.S. §§ 711 and 5601.4 and adds new 20 Pa.C.S. Ch. 39	Re-reported from Appropriations; third consideration and final passage (7/7/20)	Third consideration and final passage (10/28/19)	Act 72 (7/23/20)
SB 342	Sets inheritance tax rate of 0% for transfers to children under 21 (Was SB 598 of 2017)	Amends Section 2116(a) of the Tax Reform Code of 1971.		Referred to Finance (2/27/19)
SB 841	Addresses problems arising from COVID-19 pandemic, including remote notarization	Enacts 35 Pa.C.S. Ch. 57 providing various forms of tax and procedural relief during the COVID-19 disaster declaration	House concurred in Senate amendments to House amendments (4/14/20)	Senate concurred in House amendments, as amended (4/7/20)	Act 15 (4/20/20)
SB 879	Reduces financial statement requirements for charities using professional fundraisers	Amends the Solicitation of Funds for Charitable Purposes Act		Referred to State Government (10/7/19)
SB 903	Allows "de-risking" annuity contracts	Amends Charitable Gift Annuity Exemption Act, No. 127 of 1996		Referred to Banking and Insurance (10/18/19)
SB 924	Provides a simplified procedure for guardianships for adult children disabled during minority	Adds new Subchapter G to 20 Pa.C.S. Ch. 55		Reported as amended from to Judiciary; first consideration (10/29/19)
SB 1097	Remote notarization of documents	Amends 57 Pa.C.S. §§ 304 and 320 and adds § 314.1	Referred to Commerce (4/29/20)	Third consideration and final passage (4/28/20)
SB 1100	Excludes CARES Act payments for programs or services within income qualifications	Adds § 104-A to the Fiscal Code		Second consideration; re-referred to Appropriations (5/12/20)