Evans Estate Law Resources

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Pennsylvania ABLE Act

Posted on April 14, 2016 by Daniel EvansApril 18, 2016

Both houses of the Pennsylvania legislature have approved SB 879, the “Pennsylvania ABLE Act” (an unconsolidated statute), which allows the creation of “ABLE” savings accounts intended to qualify under IRC section 529A. (“ABLE” is an acronym for “Achieving a Better Life Experience.”)

Section 529A allows the creation of savings accounts for people with disabilities that act somewhat like the education accounts authorized by section 529, except that it refers to “qualified disability expenses” instead of “qualified education expenses.”

Look for an article on the Pennsylvania ABLE Act and section 529A in the near future.

Update: SB 879 was approved by the Governor on 4/18/2016, becoming Act No. 17 of 2016.

No Cause of Action for Loss of Non-Spouse Consortium

A nephew has no cause of action for “loss of consortium and the los[s] of support, cooperation, aid, companionship and loving interactive relationship” with aunt and uncle alleging resulting from their mistreatment. Scott T. Young v. Estate of Frank J. Young and Norma Young, No. 658 C.D. 2015 (Pa. Cmnwlth. 4/12/16).

On Appeal: Trust Modification to Remove Trustee

The Supreme Court has issued an order allowing an appeal from the decision of the Superior Court in Trust under Agreement of Edward Winslow Taylor, 2015 PA Super 199, (9/18/2015), (dissent by Platt, J.). No. 692 EAL 2015 (4/12/16). In its order, the Supreme Court restated the issue as follows:

The issue presented by petitioner and rephrased for clarity is whether theSuperior Court erred in holding that trust beneficiaries may circumvent the requirements for removal of a trustee in Section 7766 of the Trust Act, 20 Pa.C.S.A. § 7766, by amending the trust under 20 Pa.C.S.A. § 7740.1.

For additional background and analysis, see Trust Modifications to Remove Trustees.

Basis Reporting Postponed (Again)

Posted on March 24, 2016 by Daniel EvansMarch 24, 2016

The IRS has announced that the deadline for filing Form 8971, and for providing Schedule A to beneficiaries, previously postponed to February 29 by Notice 2015-57, and then postponed to March 31 by Notice 2016-19, has again been postponed, this time to June 30. Notice 16-27 (3/23/16).

For background on the new basis reporting rules and Form 8971, see “Consistent Basis Reporting Required,” “New Basis Reporting Form,” and “Basis Reporting Form Released.”

Disclaimers by Agents

Posted on March 23, 2016 by Daniel EvansMarch 23, 2016

Good news (for disclaimer fans): S.B. 1104, which contains a number of different amendments to the PEF Code, and which appears to be on track to pass the Senate, has been amended to specify that an agent who is given the power to disclaim has the power to release interests under section 6103.1 (which replaces—and I think improves upon—section 6103).

The new language regarding disclaimers is found in new subsection 5601.4(d.1).

The amendments create some confusion in the purpose or scope of sections 5601.4 and 5603, because section 5601.4 was supposed to identify which powers required specific mention and which didn’t, and section 5603 was supposed to state how powers are “implemented,” and now they are moving provisions relating to implementations of some powers out of section 5603 and into 5601.4. Hopefully, that won’t cause problems, but you never know.

Right to Reside in Residence

A beneficiary with the right to reside in a residence, but not a life estate, is nevertheless obligated to pay for repairs and maintenance of the property, notwithstanding a premarital agreement which put those obligations on the decedent because the death of the decedent ended their marriage. In re: Estate of Nicholas Culig, 134 A.3d 463, 2016 PA Super 67 (3/18/16).

Forfeiture of Spousal Share upon Separation and Extramarital Affairs

The separation of the spouses, together with the extramarital affairs of both spouses, was sufficient to establish that the surviving spouse had “willfully and maliciously deserted” the deceased spouse and had forfeited an intestate share in accordance with 20 Pa.C.S. § 2106(a). In re: Estate of Kathleen Talerico, 137 A.3d 577, 2016 PA Super 66 (3/18/2016).

Adjudication of Incapacity upon Written Medical Opinion

Posted on March 11, 2016 by Daniel EvansMarch 11, 2016

An adjudication of incapacity based upon the written opinion of a doctor, and without counsel being appointed for the alleged incapacitated person, when the AIP appeared in court and did not appear to contest the proceedings, and the court was able to observe the AIP and test her abilities with questions that revealed no inconsistencies with the doctor’s conclusions. Propert, Incapacitated, 6 Fid.Rep.3d 92 (O.C. Montgomery 2015) (opinion by Ott, J.), on appeal, No. 3425 EDA 2015 (Pa. Super.)

Order Authorizing Sale of Real Estate Not Appealable

An order authorizing the sale of real estate was not appealable under Pa.R.A.P. 342 because the objecting beneficiaries had no interest in the real estate, and was not an appealable collateral order under Pa.R.A.P. 313 because the objecting beneficiaries had no right in the real estate that would be irreparably lost if review were postponed until final judgment, and so the appeal to the Superior Court should be quashed. Clinkscale Estate, 6 Fid.Rep.3d 90 (O.C. Montgomery 2015) (opinion by Ott, J.), app. dism’d, No. 3555 EDA 2015 (Pa. Super. 1/6/2017).

Plea of Nolo Contendere was Conviction under Slayer’s Act

A plea of nolo contendere, followed by sentencing, was a “conviction” within the meaning of the Slayer’s Act, and so summary judgment against the convicted slayer was appropriate. Abbott Estate, 6 Fid.Rep.3d 80 (O.C. Butler 2015), aff’d, Nos. 1071 and 1155 WDA 2015 (Pa. Super. 9/16/2016) (non-precedential).