An order allowing the executor to enter the decedent’s residence is proper when the decedent’s residence was not specifically devised by her will and two of the three of the residuary beneficiaries occupy the residence, the court was not divested of jurisdiction over the administration of the estate by an appeal from the grant of letters, and the order is not appealable. O’Brien Estate (No. 1), 2 Fid.Rep.4th 223 (Montgomery O.C. 2024), app. quashed, 941 EDA 2024 (Pa. Super. 6/14/2024), pet. app., 389 MAL 2024 (Pa.).
When a trustee engages in an act of self-dealing by using trust assets as collateral for loans taken out for the benefit of the trustee and his family, the court may impose a surcharge based on the benefit to the trustee and his family even though there was no loss to the trust and no profit to the trustee personally. Cameron Trusts, 2 Fid.Rep.4th 205 (Bucks O.C. 2024), app. pend., 830 EDA 2024 (Pa. Super.).
An Orphans’ Court in Pennsylvania did not have jurisdiction to consider claims arising from the estate and trusts of a Florida resident when the estate and trusts were the subject of a settlement agreement in Florida that was binding upon all of the parties and was subject to the continuing jurisdiction of the Florida courts, the judgment of which is entitled to full faith and credit. Robbins Estate and Trusts, 2 Fid.Rep.4th 194 (Montgomery O.C. 2024), aff’d, 2024 WL 4117333, 673-674 EDA 2023 (Pa. Super. 9/9/2024) (non-precedential).
The Pa. Department of Revenue has issued a Realty Transfer Tax Bulletin explaining the exemption for real property distributed from an estate, and the bulletin provides some helpful guidance on a few issues. Realty Transfer Tax Bulletin 2024-01, “Transfers from…
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The failure of the executor to find bonds that were in joint names with one of the beneficiaries of the estate did not result in any loss to the beneficiary because the bonds had not matured and continued to accrue interest, and so surcharge of the executor was denied. The executor testified that another bond was sold during the decedent’s lifetime at the direction of the decedent and the proceeds placed in a joint bank account with the executor and, in the absence of any evidence of a contrary intent, those proceeds (and other accounts in joint names with the decedent and the executor) became the personal property of the executor at the decedent’s death. Surcharge for failing to appraise and distribute jewelry and furniture was also denied when the executor testified that she had tried to sell the items without success and the objectant failed to produce any evidence that the items had any value. Executor was surcharged for the payment from the estate of the taxes and expenses of property specifically devised, and was ordered to produce receipts for expenses for which she reimbursed herself from the estate. Counsel fees for the objectant were denied because the actions of the executor were not obdurate, arbitrary, vexatious, or dilatory. Workman Estate, 2 Fid.Rep.4th 158 (Bucks O.C. 2024).
The Supreme Court has adopted a new Pa. R.O.C.P. 10.7 implementing 20 Pa.C.S. 3908, which provides that the filing of certain affidavits with the Register of Wills has the same effect as the “finding of a court” for the purpose of allowing disclosures of certain digital assets of a decedent to the personal representative of the estate. By the same order, the Supreme Court also corrected a statutory reference in Pa.R.O.C.P. 15.10, relating to adoptions. “Order Adopting Rule 10.7 and Amending Rule 15.10 of the Pennsylvania Rules of Orphans’ Court Procedure; No. 995 Supreme Court Rules Docket” (9/30/2024), 54 Pa.B. 6418 (10/12/2024).
[The Orphans’ Court Procedural Rules Committee had originally published a proposed rule that would have been a cross-reference to 20 Pa.C.S. § 3908, and that proposal was opposed by the Pennsylvania Bar Association. The committee reconsidered, a second proposed rule was published, and according to the adoption report of the committee there were no objections or comments to that second proposal. For additional information about digital assets and the procedures for accessing those assets, see “Fiduciary Access to Digital Assets” (7/27/2020).]
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Philadelphia County has adopted a revised Phila. O.C.Div. Rule 5.16B for petitions to determine title to a decedent’s interest in real property under 20 Pa.C.S. § 3546, as revised by the Act of July 8, 2016, No. 79 of 2016. “Adoption of Philadelphia Court of Common Pleas Orphans’ Court Rule 5.16B; President Judge General Court Regulation; No. 13 of 2024,” (8/27/2024), 54 Pa.B. 6420 (10/12/2024).
[There is not yet any statewide rule on petitions under 20 Pa.C.S. § 3546. See “PEF Code Omnibus Amendments and Technical Corrections to Act 95 (Acts 79 and 103 of 2016)” for a summary of the changes made to § 3546 in 2016.]
The Orphans’ Court of Philadelphia County had jurisdiction to determine the proper distribution of the proceeds of a wrongful death action brought in Delaware County when the Court of Common Pleas of that county had ordered that the proceeds be paid to the administrator of the estate in Philadelphia County. The administrator was surcharged for half of the survival proceeds from a separate action, and the court properly compelled the administrator to answer deposition questions about those proceeds. Small Estate, 2 Fid.Rep.4th 121 (Philadelphia O.C. 2023), aff’d 3171 EDA 2022, 2024 WL 1240667 (Pa. Super. 3/25/2024) (non-precedential), previously summarized as “Surcharge for Half of Wrongful Death Proceeds.”
[Note: The Supreme Court had earlier held that the father had not forfeited his intestate share, and so the father and mother (the administrator) were entitled to intestate shares of one half each. See “Adult Decedent Was Not a ‘Dependent Child’.”]
The alleged incapacitated person was adjudicated incapacitated in 2024, but was found to have had testamentary capacity in 2018 when she revoked her revocable trust, based mainly on the testimony of her counsel who met with her and prepared the revocation documents, and so the revocation was valid. There was no showing of weakened intellect or a confidential relationship when the trust was revoked, so a claim of undue influence was denied. Because the trust was revoked, the petition to remove the trustee was moot. The sale of the incapacitated person’s residence by her agent to the agent’s son for less than fair market value was a breach of fiduciary duty and the agent was surcharged, but the sale was not voided. N.A.T. Trust, 2 Fid.Rep.4th 105 (Monroe O.C. 2024).
The Court of Common Pleas of Butler County has issued the first general administrative order in Pennsylvania (and one of the first in the U.S.) governing court filings produced using “generative artificial intelligence” (also known as “large language models,” such as ChatGPT). The order requires that filings include an affidavit attesting that generative AI was not used in the perparation of the filing or, if AI was used, that “each and every citation to the law or the record in the filing has been verified by a human being as authentic and accurate.” “Use of Generative Artificial Intelligence; MsD No. 2024-40258” (9/10/2024), 54 Pa.B. 5980 (9/21/2024).
Large language models are known to “hallucinate” or fabricate legal citations when asked to write legal briefs. In one publicized instance, a lawyer used ChatGPT to prepare a brief and was sanctioned when the brief contained citations to non-existent cases. “Here’s What Happens When Your Lawyer Uses ChatGPT,” New York Times (5/27/2023). One study of general-purpose “chatbots” found that they hallucinated between 58% and 82% of the time on legal queries and, in a more recent study, legal AI tools from LexisNexis and Thomson Reuters (Westlaw) still produced incorrect information (or hallucinated”) a significant amount of the time (17% and 34%, respectively). “A New Study Reveals the Need for Benchmarking and Public Evaluation of AI Tools in the Law,” Stanford University Human-Centered Artificial Intelligence (5/23/2024).
So practitioners should use care when using AI tools for legal research or first drafts of pleadings or documents.