Increases in Bonds of Personal Representatives (Act 113)

S.B. 1885 was signed into law by Governor Wolf on October 24, 2018, becoming Act 113 of 2018.

The act amends 20 Pa.C.S. § 3175 to allow Registers of Wills to increase the bonds required of personal representatives after inventories or inheritance tax returns have been filed.  However, a personal representative may elect not to post additional security if waivers are obtained from all parties in interest.

The act takes effect in 60 days.

New Anatomical Gift Legislation (Act 90)

S.B. 180 was signed into law by Governor Wolf on October 23, 2018, becoming Act 90 of 2018.

The act makes a number of changes  to the disposition of decedent’s remains and makes extensive changes to Chapter 86, on anatomical gifts.  A complete description of all the changes is beyond the scope of this item, but the following changes are noteworthy:

  • 20 Pa.C.S. § 305(d) to provide that, if more than two persons with equal standing as next of kin disagree on the disposition of the decedent’s remains, the decision is made by the majority.  If there is no majority, the court shall make the final determination.  This change takes effect in 60 days.
  • Many of the references to organ donation in the P.E.F. Code (20 Pa.C.S.) have been broadened to include not only specific organs but also donations of hands, facial tissue, limbs, or other “vascularized composite allographs.”
  • The explanations that accompany the sample forms of health care power of attorney and living wills (20 Pa.C.S. § 5471) have been changed by adding new information about organ and tissue donations, and directions for organ and tissue donations have been included the sample form.  Other sections have been changed to limit the power of a health care agent to make anatomical gifts unless expressly authorized.
  • A number of changes have been made to the definitions in 20 Pa.C.S. Ch. 86 (“Anatomical Gifts”) and new definitions have been added.
  • A new Subchapter D devoted to donations of tissue and “vascularized composite allographs” (see above) has been added to Chapter 86, with special rules for those kinds of donations.
  • Subchapter C of Chapter 86 (“Corneal Transplants”) has been deleted, probably because those kinds of donations are now considered part of Subchapter D, on tissue donations.
  • Both the persons entitled to make anatomical gifts (§ 8611(b)), and the persons entitted to receive them (§ 8612(a)) have been revised.
  • The manner and procedures for making anatomical gifts (§ 8613) have been revised to facilitate designations on driver’s licenses and registries, and various other sections revised on procedures and possible liabilities relating to anatomical gifts.

Many of the amendments to Chapter 86 take effect immediately.  The remainder take effect when the Department of Transportation has published notice of the establishment of websites and a registry to carry out relevant provisions of the act.

Proposed Changes to Annual Attorney Registration

The Disciplinary Board has proposed amending the Rules of Disciplinary Enforcement to shorten the times for penalties after the annual due date for attorney registration.

Attorney registrations are due July 1, and a nonwaivable penalty is imposed for registrations not received by July 31, with an additional penalty imposed on attorneys who fail to register by August 31.

Noting that on-line registration has made it easier for attorneys to comply with the annual registration deadline, and that attorneys are sent reminders by email, the Board has proposed moving up the late registration dates from July 31 to July 16, and from August 31 to August 1.

Comments may be submitted by November 26, 2018.

“Proposed Amendments to the Pennsylvania Rules of Disciplinary Enforcement Relating to Annual Registration of Attorneys,” 48 Pa.B. 6784 (10/27/2018).

Sole Use Trust Projections

Posted on by October 22, 2018

The Webcalculators website for online estate, trust, tax, and financial calculators now includes a projection of the value of a “sole use trust” for the benefit of a surviving spouse with and without the election to pre-pay the inheritance tax on the remainder.

What the projection shows is that electing to pre-pay the inheritance tax on the remainder should result in a greater after-tax value for the remainder (assuming that the remainder remains subject to inheritance tax at the death of the surviving spouse) unless it is projected that principal might be paid or distributed for the support of the surviving spouse, at which point the benefit of the prepayment election becomes very uncertain.

For an article addressing the pros and cons of the election, and drafting to allow disclaimers of interests that would prevent the treatment of a trust as a sole use trust, see “‘Sole Use Trusts’ and Disclaimers.”

The “overview” from the calculation, which also explains the pros and cons of the election, is as follows:

Register Properly Determined Residence of Decedent and Denied Letters to Spouse

Register of Wills properly found that it had jurisdiction to issue letters of administration based on the decedent’s driver’s license, car registration, financial responsibility insurance card, and telephone bill, even though decedent and his spouse owned a home in Bucks County.  The Register did not abuse his discretion in issuing letters to an disinterested third party, rather then the decedent’s spouse, when the spouse had attempted to evade service of a citation upon her, and had refused to acknowledge potential claims of heirs other than her and her daughter despite evidence that the decedent and his spouse had adopted two or three other children.  Estate of Leonard Barkan, 8 Fid.Rep.3d 278 (Montgomery O.C. 2018).

Order for Neuropsychological Examination is Constitutional and not Appealable

Court order directing the alleged incapacitated person to submit to an independent neuropsychologic examination for the purpose of determining capacity did not violate the constitutional rights of the person, and the order should be considered interlocutory and not appealable.  Estate of Rosa Simmons, an Alleged Incapacitated Person, 8 Fid.Rep.3d 271 (Philadelphia O.C. 2017), 1483 EDA 2017 (Pa. Super.) (appeal discontinued after order issued to show cause why order is not interlocutory and not appealable).

Forgery, Lack of Testamentary Capacity, and Undue Influence Not Proven

Forgery is not proved by the testimony of the decedent’s children that the signature on the will does not look like the decedent’s when the decedent’s lawyer and the subscribing witnesses to the will all testify that they saw the decedent sign the will.  Evidence of physical weakness, and of some episodes of delirium and short-term memory loss, were insufficient to show lack of testamentary capacity or weakened intellect for purposes of undue influence.  The existence of a confidential relationship was also not proved when there was no evidence that the long-time friends who benefited from the will ever made any decisions for the decedent or ever managed his money.  Estate of Barnabas Roczey, 8 Fid.Rep.3d 253 (Monroe O.C. 2018).

No Life Support for Child without Brain Activity

Court would not issue a temporary restraining order to continue life support for minor child who showed no brain activity and was legally dead under the Uniform Declaration of Death Act, 35 P.S. § 10203.  In Re Anonymous, a Minor, 8 Fid.Rep.3d 249 (Philadelphia O.C. 2018).