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RULE 1 - JUDGES AND LOCAL RULES
Rule 1.2.1. Citation of Rules.
Rule 1.2.2. Petitions and Motions.
Rule 1.2.5. Depository of the Court.
RULE 2 - CONSTRUCTION AND APPLICATION OF
RULES
RULE 3 - PLEADINGS AND PRACTICE
Rule 3.1. Pleadings, Motions and Petitions.
Rule 3.2.1. Pleadings, Motions and Petitions.
Rule 3.2.2. Pleadings, Disposition, Issues of Fact or Law.
Rule 3.4.2. Consents. Joinders. Form.
Rule 5.1.1. Notice. Legal Publication.
Rule 5.2.1. Method. Person under Incapacity. No Guardian or
Trustee.
Rule 5.4.1. Notice. Additional Requirements.
Rule 5.5.1. Charities. Notice to the Attorney General.
RULE 6 - ACCOUNTS AND DISTRIBUTION
Rule 6.1.2. Form of Accounts. Additional requirements.
Rule 6.3.1. Notice To Parties in Interest.
Rule 6.4.1. Accounts. Time for Filing.
Rule 6.9.1. Accounts. Papers to be Submitted.
Rule 6.10.1. Objections. Form and Content.
Rule 6.10.2. Objections. Time for Filing.
Rule 6.10.3. Objections. Deposit on Account of Fees and
Costs.
Rule 6.10.4. Objections. Service. Return.
Rule 6.10.5. Objections. Failure to Make, Effect.
Rule 6.11. Confirmation of Accounts. Awards.
Rule 6.11.2. Distribution Under Section 3534 of P.E.F. Code.
Rule 6.11.3. Settlement of Small Estates. Contents of
Petition.
Rule 7.1.1. Exceptions. Form and Contents.
Rule 7.1.2. Exceptions. Time for Filing.
Rule 7.1.3. Exceptions. Partial Distribution.
Rule 8.1.2. Notice of Hearing. Hearings.
Rule 8.5.1. Transcript of Testimony.
Rule 8.6.1. Filing of Report. Notice of Filing. Proof of
Notice.
Rule 8.7.1. Report of Auditor or Master. Disposition Procedure.
Rule 8.8.1. Compensation and Security.
Rule 9.1.1. Official Examiners.
Rule 9.1.2. Official Examiners. Compensation.
Rule 10.1.1. Appeals from Grant of Letters
Rule 10.1.2. Form of Appeal from Register of Wills Decision.
Rule 10.2.1. Inheritance Tax Appeals.
Rule 12.1.1. Family Exemption. Appraisal
Rule 12.1.2. Family Exemption. Allowance.
Rule 12.1.3. Family Exemption. Risk Distribution Prior to
Confirmation.
Rule 12.2.1. Allowance to Surviving Spouse of Intestate.
Appraisal.
Rule 12.3.1. Election of Surviving Spouse. Filing of
Petition for Extension of Time.
Rule 12.5.1. Appointment of Guardian for Minor. Consents
Required.
Rule 12.5.2. Guardians. Minors. Bond. Restricted Account.
Rule 12.5.4. Minor's Estate. Allowances. Approval of Court.
Rule 12.9.1. Public Sale of Real Property. Contents of
Petition.
Rule 12.9.2. Notice of Public Sale of Real Property.
Rule 12.9.3. Public Sale of Real Property. Return of Sale.
Rule 12.9.4. Public Sale of Real Property. Decree.
Rule 12.10.1. Private Sale of Real Property.
Rule 12.10.2. Private Sale of Real Property. Public Notice
of Sale. Form of Notice.
Rule 12.10.4. Confirmation of Sale.
Rule 12.11.1. Mortgage of Real Property.
Rule 12.11.2. Pledge, Lease, or Exchange of Real Property.
Rule 12.12.1. Inalienable Property. Public Sale.
Rule 12.12.3. Inalienable Property. Private Sale.
Rule 12.12.4. Inalienable Property. Mortgage.
RULE 14-GUARDIANSHIP OF INCAPACITATED
PERSONS
Rule 14.1. Form of Preliminary Decree.
Rule 14.3. Accounts of Guardians.
Rule 14.4. Annual Report of Guardian of Person of
Incapacitated Person
Rule 15.1.1. Local Practice and Procedure.
Rule 15.2.1. Voluntary Relinquishment to Agency.
Rule 15.3.1. Voluntary Relinquishment to Adult Intending to
Adopt Child.
Rule 15.3.2. Alternative Procedure for Relinquishment.
Rule 15.4.1. Involuntary Termination of Parental Rights.
Rule 15.4.2. Form of Petition for Involuntary Termination.
Rule 15.4.3. Form of Decree Nisi and Final Decree
Rule 15.8.1. Registration with the
Court of Authorized Persons.
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Index to Orphans' Court Rules |
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References
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ACCOUNTS AND
DISTRIBUTION
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See also Family Exemptions |
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Accounts |
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Account to be filed
in every estate |
6.1.1 |
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Additional
requirements regarding form |
6.91 |
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Advertisement |
6.3.1 |
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Audit of |
6.11, 6.3.1 |
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Confirmation of |
6.11 |
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Continued audit |
6.1.2 |
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Distributions under
Section 3534 of PEF Code |
6.11.2 |
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Exceptions to (see
Objections, infra) |
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Execution of |
6.1.2 |
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Family Settlement
Agreement in lieu of audit and confirmation |
6.1.1 |
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Filing, time for |
6.4.1 |
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Form of |
6.1.2 |
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Incapacitated
person's estate, by guardian of |
14.3 |
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Notice to parties
in interest |
6.3.1 |
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Objections |
6.10.1 |
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Objections,
deposit for costs and fees |
6.10.3 |
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Objections, effect
of failure to make |
6.10.5 |
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Objections, proof
of service |
6.10.4 |
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Service |
6.3.1 |
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Small estates,
petition for settlement of |
6.11.3 |
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Statement of proposed distribution |
6.9.1 |
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Distribution |
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Distributions
under Section 3534 of PEF Code |
6.11.2 |
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Partial
distribution pending exceptions |
7.1.3 |
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Risk distribution
prior to confirmation |
12.1.3 |
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Statement of
proposed distribution |
6.9.1 |
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ADJUDICATIONS |
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Exceptions to |
7.1.1-7.1.3 |
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ADOPTIONS |
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Affidavit of
search, form of |
15.4.2 |
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Exhibits required |
15.1.2 |
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Consents, petition
to confirm |
15.3.2 |
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Counsel,
appointment of |
15.4.1 |
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Decree, form of |
15.43 |
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Forms |
15.4.2-15.4.3 |
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Guardian ad litem, appointment of |
15.4.1 |
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Involuntary termination of parental rights |
15.4.1 |
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Involuntary termination of parental rights, form of decree for |
15.4.2 |
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Involuntary termination of parental rights, form of petition |
15.4.2 |
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Involuntary
termination of parental rights, procedure |
15.4.1 |
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Local practice and
procedure |
15.1.1 |
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Petition to confirm consents |
15.3.2 |
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Registration with the Court of authorized persons |
15.8.1 |
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Relinquishment, alternative procedure |
15.3.2 |
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Representation of minors |
15.4.1 |
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Voluntary relinquishment to adult intending to adopt |
15.3.1 |
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Voluntary relinquishment to agency |
15.2.1 |
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ALLOWANCE TO
SURVIVING SPOUSE |
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Appraisal of
property |
12.2.1 |
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APPEALS |
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Appeal from
register of wills, form of |
10.1.2 |
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Inheritance tax
appeals |
10.2.1 |
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APPRAISALS |
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Allowance to
surviving spouse |
12.2.1 |
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Family exemption, |
12.1.1 |
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Private sale of
real property |
12.10.1 |
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ARGUMENT LIST |
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Exceptions to accounts |
6.3.1, 6.11 |
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ATTORNEYS |
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Endorsement of
pleadings |
1.2.4,
3.4.1 |
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Service of
pleadings upon |
3.2.1 |
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Signature on pleadings
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3.4.1
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AUDITORS AND MASTERS
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Appointment of |
8.1.1 |
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Compensation of. |
8.8.1 |
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Exceptions to
reports of. |
7.1.2, 8.7.1 |
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Hearing of |
8.1.2 |
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Notice of hearing |
8.1.2 |
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Reports of,
confirmation procedure |
8.7.1 |
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Reports of, filing |
8.6.1 |
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Security for
payment of costs and fees. |
8.8.1 |
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Testimony,
transcript of |
8.5.1 |
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AUDITS (see Accounts and Distribution, supra)
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BRIEFS
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Form of
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1.2.3
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BUSINESS OF COURTS
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See also Pleading and Practice |
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Argument list |
6.3.1, 6.11 |
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Attorneys |
1.2.4 |
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Authorized
persons, registration with the Court |
15.8.1 |
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Citation of rules |
1.2.1 |
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Pleadings, motions
and petitions |
3.2.1 |
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CHARITIES
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Notice to the Attorney General, when
required
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5.5.1
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CITATION |
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Definition of |
2.3.1 |
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CITATION OF RULES |
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Citation of Rules |
1.2.1 |
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DEPOSITORY OF THE COURT
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Deposit of money or
securities
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1.2.5
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EXAMINERS, OFFICIAL
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Appointment of |
9.1.1 |
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Compensation of |
9.1.2 |
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EXCEPTIONS |
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Form and contents |
7.1.1 |
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Partial
distribution |
7.1.3 |
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Proof of service
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7.1.2
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Time for filing
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7.1.2
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FAMILY EXEMPTION
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Allowance prior to
confirmation, petition for |
12.1.2 |
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Appraisal |
12.1.1 |
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Objections |
12.1.2 |
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Risk distribution |
12.1.3 |
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FAMILY SETTLEMENT AGREEMENT
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Contents of
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6.1.1
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In lieu of audit and
confirmation of account
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6.1.1
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FEES AND COSTS |
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Master's fees and
costs, deposit for |
8.8.1 |
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Official examiner
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9.1.2
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FILING OF
PAPERS
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See also Accounts and Distribution |
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Attorney's name
and I.D. number to be noted on pleadings |
1.2.4 |
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Exceptions |
7.1.2 |
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Petitions and
motions to cite statutory authority or rule number |
1.2.2 |
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FORMS |
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Account |
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Form of |
6.1.2 |
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Notice of
confirmation |
6.3.1 |
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Adoption
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Affidavit of search |
15.4.2 |
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Involuntary termination of
parental rights, decree of |
15.4.3 |
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Involuntary termination of parental rights, petition for |
15.4.2 |
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Consent or joinder |
3.4.2 |
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Incapacitated persons |
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Account of guardian of |
14.3 |
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Annual report of guardian of |
14.4 |
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Decree for guardianship,
preliminary |
14.1 |
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Testimony regarding incapacity,
deposition |
14.2 |
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Real property |
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Notice of private sale of |
12.10.2 |
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Notice of public sale of |
12.9.2 |
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GUARDIANS
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Incapacitated
person's estate, appointment of |
14.2.1 |
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Minor's estate or
person, appointment of |
12.5.1 |
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Restricted minor's
account |
12.5.2 |
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Sale of real
property by guardian of incapacitated person's estate |
12.9.1 |
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INCAPACITATED PERSONS
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Account of
guardian |
14.3 |
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Annual report of
guardian of person, form of |
14.4 |
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Preliminary Decree
for guardianship, form of |
14.1 |
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Sale of real
property by guardian |
12.9.1 |
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Testimony regarding
incapacity, deposition |
14.2 |
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LEGAL PUBLICATIONS |
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Designation of MASTERS (see Auditors and Masters, supra) |
5.1.1 |
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MINORS' ESTATES |
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Allowances |
12.5.4 |
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Consents required |
12.5.1 |
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Guardian, petition
for appointment of |
12.5.1 |
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Restricted account |
12.5.2 |
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Sale of real
property by guardian of |
12.9.1 |
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NOTICES |
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Account, filing of |
6.3.1 |
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Attorney General,
notice to |
5.5.1 |
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Charities, notice
to Attorney General |
5.5.1 |
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Copy to be
attached to petition or motion |
1.2.2 |
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Election by
surviving spouse, petition for extension of time |
12.3.1 |
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Family exemption |
12.1.2 |
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Incapacitated
persons, notice to |
5.2.1 |
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Legal periodicals,
designation of |
5.1.1 |
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Notice, additional
requirements |
5.4.1 |
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Private sale of
real property |
12.10.2 |
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Public sale of
real property |
12.9.2 |
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Return of service,
additional requirements |
5.4.1 |
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Service, on
attorney |
3.2.1 |
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OBJECTIONS |
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Election of
surviving spouse, petition for extension of time |
12.3.1 |
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Family exemption |
12.1.2 |
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Objections to
account, deposit for fees and costs |
6.10.3 |
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Objections to
account, effect of failure to make |
6.10.5 |
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Objections to account;
form and content |
6.10.1 |
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Objections to account; time for filing |
6.10.2 |
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Objections to account, service and return |
6.10.4 |
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OFFICIAL EXAMINERS |
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Appointment of |
9.1.1 |
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Compensation of |
9.1.2 |
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ORDERS AND DECREES |
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Decree
confirming auditor's or master's
report |
8.7.1 |
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Exceptions to,
form and content |
7.1.1 |
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Exceptions to,
time for filing |
7.1.2 |
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Exceptions to,
partial distribution |
7.1.3 |
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PLEADING AND PRACTICE |
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Consents and joinders,
form of |
3.4.2 |
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Exhibits,
certification of counsel |
3.4.1 |
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Form and
additional requirements |
3.2.1 |
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REAL PROPERTY |
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Confirmation of
sale of |
12.10.4 |
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Inalienable
property, mortgage of |
12.12.4 |
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Inalienable property,
private sale of |
12.12.3 |
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Inalienable
property, public sale of |
12.12.1 |
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Petition to lease,
pledge or exchange |
12.11.2 |
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Petition to
mortgage |
12.10.1 |
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Private sale of,
notice |
12.10.2 |
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Private sale of, |
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Confirmation of |
12.10.4 |
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Form of petition |
12.10.1 |
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Notice of |
12.10.2 |
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Public sale of, |
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Additional security |
12.9.4 |
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Advertisement of |
12.9.2 |
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Confirmation of |
12.10.4 |
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Contents of petition |
12.9.1 |
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Decree Nisi |
12.9.4 |
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Notice of |
12.9.2 |
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Return of sale |
12.9.3 |
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REGISTER OF WILLS
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Appeals from |
10.1.1 |
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Form of appeal |
10.1.2 |
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Inheritance tax appeals |
10.2.1 |
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RULES |
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Citation of rules |
1.2.1 |
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SERVICE |
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Exceptions
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7. 1.2
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Service of notice
on attorney |
3.2.1 |
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SMALL ESTATES |
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Petition for
Settlement of |
6.1.3 |
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SPECIAL PETITIONS |
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Allowance to surviving spouse |
12.2.1 |
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Election by surviving spouse, extension of time |
12.3.1 |
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Family Exemption |
12.1.1-12.1.3 |
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Guardian for
Minor, Appointment of |
12.5.1 |
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Inalienable
property, mortgage of |
12.12.3 |
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Inalienable
property, private sale of |
12.12.3 |
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Inalienable
property, public sale of |
12.12.1 |
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Minor's estate,
petition for allowance from |
12.5.4 |
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Mortgage of real
property |
12.11.1 |
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Pledge, lease or
exchange of real property |
12.11.2 |
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Private sale of
real property |
12.10.1-12.10.2 |
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Private sale of
public property |
12.9.1-12.9.4 |
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SURVIVING SPOUSE'S
ALLOWANCE |
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Appraisal of
property |
12.2.1 |
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SURVIVING SPOUSE'S
ELECTION |
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Extension of time |
12.3.1 |
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TRUSTEES |
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Accounts of |
6.9.1 |
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Corporate |
12.5.1 |
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Mortgage real
property, petition to |
12.11.1 |
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Pledge, lease or
exchange real property, petition to |
12.11.2 |
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Security, fixing
amount of |
12.10.4 |
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IN THE COURT OF COMMON PLEAS OF CARBON
COUNTY, PENNSYLVANIA
ORPHANS' COURT DIVISION
IN RE: ADOPTION OF LOCAL
ORPHANS' COURT RULES
RULES OF COURT
CARBON COUNTY
ORPHANS' COURT RULES
RULE 1 - JUDGES AND LOCAL RULES
Rule 1.2.1. Citation of Rules.
These Rules shall be known as Carbon
County Orphans' Court Rules adopted pursuant to Pa.O.C.R. 1.2 and shall be
cited as "Carbon Co. O.C.R. No. ___."
Rule 1.2.2. Petitions and
Motions.
(a) Every original petition or motion filed
shall set forth in its first paragraph the citation of any statute, Rule of
court, or other authority relied upon to justify the relief requested.
(b)
A copy of any notice required to be
given shall be attached to the petition or motion.
Rule 1.2.3. Briefs.
Briefs will be prepared and filed in
accordance with the provisions of Carbon Co. Civ. L. No. 210, unless otherwise
ordered by the Court.
Rule 1.2.4. Attorneys.
The name and Supreme Court
identification number of any attorney employed by any party in any proceeding
pending in this Court shall be marked on the initial pleading or paper filed in
the office of the Clerk. Any attorney who has properly entered an appearance
will receive notice of all hearings, conferences, and orders.
Rule 1.2.5. Depository of
the Court.
(a) Deposit of Money or Securities in
Court. All monies paid or securities delivered into Court shall be
deposited immediately in a segregated account in such bank or trust company as
the Clerk may designate, to the credit of the court in the particular estate or
proceeding to which the money or securities may belong; and such depository
shall keep a separate account of each payment and delivery, designating the
same by name of the estate or proceeding.
(b) Withdrawals. No money shall be paid
out of Court by the depository, or securities delivered, except on checks or
orders of the Clerk accompanied by a certified copy of the Order of Court
authorizing such withdrawal or delivery.
(c) Docket to be
Maintained. The Clerk shall maintain a "Money-in-Court"
Docket in which shall be entered concisely under the name of the respective
estates, the Orders of Court directing money to be paid into Court, as well as
an accurate account of the money paid in and paid out, so that the record will
fully explain itself.
RULE 2 - CONSTRUCTION AND APPLICATION OF RULES
Rule 2.3.1. Definitions.
(a)
As used in these Rules "P.E.F.
Code" shall mean a reference to the Probate, Estates and Fiduciary Code, June
30, 1972, P. L. 508, 20 Pa.C.S.A. Sec. 101, et seq., as amended.
(b) As used in these Rules, the terms
"Citation" and "Rule to Show Cause" shall be
interchangeable unless otherwise specially ordered by the Court, all interest
earned on said accounts shall accrue to the credit of the County of Carbon.
RULE 3 - PLEADINGS AND PRACTICE
Rule 3.1. Pleadings, Motions and
Petitions.
(a)
Motions and petitions shall be governed by the provisions of Carbon
County Civil L206.1. A completed
Petition/Motion cover sheet shall be attached in the form as Exhibit
"A".
(b)
A copy of every pleading, including exceptions, shall be promptly served
upon counsel of record for all parties in interest, and upon any party who is
not represented.
Revision
effective December 17, 2001
CARBON COURT OF
COMMON PLEAS
ORPHANS'
COURT DIVISION
PETITION/MOTION COURT
COVER SHEET
NO._________________
_____________________________
vs.
_____________________________
FILING OF: Petitioner (
) Respondent ( )
TYPE
OF FILING (check one):
( ) 1. Application for Continuance (128)
( ) 2. Petition for Adoption (134)
( ) 3. Petition for Voluntary Termination (132)
( ) 4. Petition for Involuntary Termination (155)
( ) 5. Petition to Remove Fiduciary (053)
( ) 6. Petition for Guardian of Minor (050)
( ) 7. Petition to Sell Real Estate (052)
( ) 8. Petition to Distribute Minor's Estate (057)
( ) 9. Incapacity Petition (058)
( )10. Petition to Withdraw as Counsel (127)
( )11. Petition to Revoke Letters (064)
( )12. Petition to Challenge Election (229)
( )13. Petition to Excuse Additional Bond (055)
( )14. Petition for Compensation (151)
( )15. Other Motion or Petition (specify):
__________________________________________________________________
( )16. Response to:
__________________________________________________________________
OTHER
ATTORNEY:
_________________________________
Attorney's Name (Typed)
Attorney for:
(
)Petitioner ( )Respondent
N.B. The numbers after the Motion or Petition
above are docket codes used in the Court Computer System.
Please be
precise when marking your Motion or Petition.
When filing Motion or Petition, provide Clerk
with sufficient
copies for opposing Counsel and filing Counsel.
THIS FORM IS
AVAILABLE IN THE ORPHANS' COURT OFFICE
Exhibit
"A"
Revision
effective December 17, 2001
Rule 3.2.1. Pleadings,
Motions and Petitions.
(a)
Motions and petitions shall be
governed by the provisions of Carbon Co. Civ. L. 206.
(b)
A copy of every pleading, including
exceptions, shall be promptly served upon counsel of record for all parties in
interest, and upon any party who is not represented.
Rule 3.2.2. Pleadings,
Disposition, Issues of Fact or Law.
Except
in those cases where no responsive pleading is required, if the respondent
fails to answer a petition to which an answer is required under the Carbon
County Rules of Civil Procedure or the Pennsylvania Orphans' Court Rules or the
Pennsylvania Rules of Civil Procedure within twenty (20) days of service, all
material averments of fact in the petition shall be taken as admitted and the
Court may, at any time after the reply day or return day and upon proof of
service of the Rule to show cause upon the respondent at least ten (10) days
prior to the return date, upon motion, enter a decree granting the prayer of
the petition or such other relief deemed appropriate by the court.
Rule 3.4.1. Form.
Exhibits.
(a) Endorsements.
Every pleading shall be endorsed with the name of counsel, if counsel has
appeared for a party.
(b) The
signature of an attorney to a petition shall constitute a certification by that
attorney that all copies of written or printed instruments, records, or
documents which are not certified or authenticated, are true and correct copies
of the original.
Rule 3.4.2. Consents.
Joinders. Form.
(a) All
petitions shall aver that all parties in interest are petitioners, or that
consents or joinders of all necessary parties are attached or, if the
petitioner is unable to attach a necessary consent or joinder, this fact shall
be stated in the petition together with the reason.
(b) Whenever
a party other than a petitioner desires to consent to or join in the prayer of
a petition, there shall be appended to the petition a written
"Consent" or "Joinder" signed by the party in the following
form:
I,
________________________________________ , having read and considered the
contents of the foregoing petition, do herewith waive the benefit of all
requirements of notice of the presentation, or service upon me, of said
petition, do authorize the Court to note my general appearance in said
proceeding as though I had appeared personally or by counsel, do herewith waive
all objections to the Court's jurisdiction over my person, and do herewith
consent to or join in [add specifics of prayer for relief].
Rule 5.1.1. Notice. Legal
Publication.
The Carbon County Law Journal
and The Times News and such other publications as may be designated by
the President Judge shall be the legal periodicals for the publication of
notice whenever publication in a legal periodical is required by Act of
Assembly, Rule, or Order of Court.
Rule 5.2.1. Method. Person
under Incapacity. No Guardian or Trustee.
Whenever notice is given to a person
who is not sui juris and for whom there is no guardian or trustee, notice shall
be given by serving it upon the person, if over fourteen years of age, and in
all cases, upon:
(a) The
person's spouse, if sui juris, or
(b) The
person's next of kin, if sui juris, or
(c) The
person with whom he or she resides or by whom he or she is maintained; or
(d) The
superintendent or other official of the institution having custody of the
person; or
(e) In
such manner as the Court, by special order, may direct.
Rule 5.4.1. Notice.
Additional Requirements.
(a) (1)
Personal Service. Return of personal service shall set forth the date,
time, place and manner of such service, and that a true and correct copy of the
petition and notice were handed to the person served.
(2) Registered
or Certified Mail. Return of notice by registered or certified mail shall
set forth the date and place of mailing the petition and notice and shall
include the return receipt or a copy thereof.
(3) Publication.
Return of notice by publication shall set forth the date(s) and newspaper
and/or legal periodicals of publication and shall include proofs of publication
or copies thereof.
(b) Except
as may otherwise be provided, by statute, Rule or special order, a return of notice
shall be filed with the Clerk prior to the date set for the occurrence of the
event of which notice has been given.
Rule 5.5.1. Charities.
Notice to the Attorney General.
Notice to the Attorney General or his
designated deputy shall be given in accordance with the provisions of Pa.O.C.R.
No. 5.5 in any matter which involves:
a. a specific
bequest to a charity in the amount of $25,000.00 or more;
b. a specific
bequest to a charity totaling less than $25,000.00 which will not be paid in
full; or
c. a charitable
bequest of any amount payable out of the residue of the estate.
RULE 6 -
ACCOUNTS AND DISTRIBUTION
Rule 6.1. Form.
Accounts
shall be prepared on 8 ˝” by 11” paper, fastened together at the top and numbered
consecutively at the bottom.
In
every decedent’s estate in which Letters Testamentary or Letters of
Administration have been issued by the Register of Wills, the executor,
administrator or other personal representative shall file an account with the
Clerk of the Orphans’ Court. Each such
account shall conform to the requirements of Pa.O.C. Rule 6.1(g), and shall
include either a Statement of Proposed Distribution or a request that
distribution be determined by the Court or an auditor.
Revision
effective December 17, 2001
Rule 6.1.1. Accounts
Required. Time for Filing. Family Settlement Agreement in Lieu of Audit and
Confirmation.
(a)
Accounts Required. In every decedent’s estate in which Letters
Testamentary or Letters of Administration have been issued by the Register of
Wills, the executor, administrator or other personal representative shall file
an account with the Clerk of the Orphans’ Court. Each such account shall
conform to the requirements of Pa.O.C. Rule 6.1, and shall include either a
Statement of Proposed Distribution or a request that distribution be determined
by the Court or an auditor.
(b) Time
for Filing. Every account required to be filed by this rule shall be filed not
later than eighteen (18) months following the date of issuance of Letters
Testamentary or Letters of Administration unless the Court, upon petition and
for good cause shown, shall have extended the time for filing same.
(c) Family Settlement Agreement. As an
alternative to formal submission and confirmation of an account, a personal
representative may file with the Clerk of Orphans’ Court a Family Settlement
Agreement. Each Family Settlement Agreement shall have attached thereto a first
and final account of the executor, administrator or other personal
representative indicating all transactions during the administration of the
estate, which account shall be substantially in the form prescribed by Carbon
Co. O.C.R. No. 6.1.2. Each Family Settlement Agreement shall also have attached
thereto a Statement of Proposed or Actual Distribution, and a release signed by
each and every heir, beneficiary or other party in interest approving the
account, waiving the requirement that the account be audited and confirmed by
the Court and discharging the executor, administrator or other personal
representative.
Rule 6.1.2. Form of
Accounts. Additional requirements.
(a) All
accounts shall be in the form approved by the Pennsylvania Supreme Court and as
explained by the Uniform Fiduciary Accounting Principles, pursuant to Pa.O.C.
Rule 6.1(g).
(b) Accounts
shall be stated on 8 ˝" by 11" paper, fastened together at the top
and numbered consecutively at the bottom.
(c) Every
account filed with the Clerk shall be signed by each accountant and shall be
verified by at least one accountant.
Rule 6.3.1. Notice to
Parties in Interest.
(a) Notice of the filing and of the
date and time for confirmation as required by law and Rule of Court shall be
given by certified or registered mail, return receipt requested, at least ten
days prior to the confirmation date. In lieu of such notice, a written waiver
of notice may be filed for any party. The notice shall state that any party may
file objections in writing with the Clerk of the Orphans’ Court at any time
prior to the date and time fixed for confirmation, and that if no objection is
filed, the Account and Statement of Proposed Distribution will be confirmed
absolutely.
(b) In addition to notices otherwise
required by law or statute, the surety on the bond of any fiduciary seeking
discharge shall be given written notice of the filing of the petition and of
the date and time for presentation for Final Decree, by certified or registered
mail, return receipt requested, at least ten days prior to the date scheduled
for discharge. In lieu of such notice, a written waiver of notice may be filed.
The notice shall state that the surety may file objections in writing with the
Clerk of the Orphans’ Court at any time prior to the time fixed for Final
Decree, and that if no objections are filed, a Final Decree shall be entered as
of course.
(c) Prior to the date set for
confirmation of the account, the accountant, or counsel, shall file with the
Court a return of notice as prescribed in Rule 5.4.1. hereof, in form approved
by the Court.
(d) If it shall appear that timely and
proper notice has not been given to all parties entitled to notice or that the
requisite affidavit of notice has not been filed, or that all costs have not
been paid, no order of confirmation or discharge will then be made and in lieu
thereof the procedure shall be as follows:
(1)
If the irregularity is remedied within twenty (20) days, the Clerk shall
represent the matter to the assigned Judge in Chambers for confirmation or
discharge order, provided at least ten (10) days have elapsed after notice was
given to any party and provided that no objection, exception or answer has been
filed meanwhile. If any such objection, exception or answer has been filed, the
provisions of Rule 6.4.1(b) shall apply.
(2)
If the irregularity has not been so remedied within twenty (20) days, the time
for confirmation or for discharge order shall be as of course extended until
the next regular scheduled session for confirmation and discharge, and
re-advertisement and re-notification of all parties shall be required, unless
the fiduciary makes written application to the Court and obtains special relief
for cause shown.
(3)
In any case now pending or hereafter arising in which an account, statement of
proposed distribution, or discharge petition has been filed but remains
unconfirmed for unremedied procedural defect, the Clerk may file a petition
with the Court stating the essential facts and requesting issuance of a Rule to
show cause why an order denying confirmation or dismissing the discharge
petition should not be made. A copy of such petition shall be furnished by mail
to the fiduciary and his or her counsel, and to each party entitled to receive
notice and the case shall be placed on the argument schedule for hearing and
argument.
(e) The Clerk shall give notice of all
accounts filed and of the time and place of the call of the Confirmation List.
The notice shall be published once a week for two (2) consecutive weeks
immediately prior to the date of confirmation in the legal publication
designated by these Rules and in one daily newspaper of general circulation
published within Carbon County, and the Clerk shall also post copies of the
Confirmation List in his/her office.
(f) The form of advertisement of
Accounts and Statements of Proposed Distribution that have been filed for
confirmation by the Court shall be as follows:
NOTICE OF CONFIRMATION OF FIDUCIARIES’
ACCOUNTS
To
all claimants, beneficiaries, heirs, next-of-kin, and all other parties in
interest:
NOTICE
is hereby given that the following named fiduciaries of the respective estates
designated below have filed their Accounts and Statements of Proposed
Distribution in the office of the Register of Wills in and for the County of
Carbon, Pennsylvania, and the same will be presented to the Orphans’ Court
Division, Courtroom No. ____, Carbon County Courthouse, Jim Thorpe,
Pennsylvania, on the ______ day of___________________, _______ at ____. m. for
confirmation. All objections must be filed in writing in the office of the
Clerk of Orphans’ Court Division, Court of Common Pleas, Jim Thorpe,
Pennsylvania, prior to the foregoing stated date and time:
ESTATE
FIDUCIARY
ATTORNEY
X X X
__________________________
Clerk
of the Orphans 'Court
Rule 6.4. Time for
Filing.
Every
account required to be filed by this rule shall be filed not later than
eighteen (18) months following the date of issuance of Letters Testamentary or
Letters of Administration unless the Court, upon petition and for good cause
shown, shall have extended the time for filing same.
The
Register of Wills/Clerk of Orphans’ Court shall fix a filing deadline for each
regular session and shall give notice thereof at least two (2) weeks prior to
the deadline. The time interval between the deadline and the session shall be
sufficient to enable the Register/Clerk to make publication as provided by law
and Rules of Court.
The
Register of Wills/Clerk of Orphans’ Court shall schedule for the next regular
session all matters filed before the deadline for that session and shall make
the required publication. The notices shall contain a statement that all
objections must be filed in writing before the time fixed for confirmation, or
final decree of discharge, as the case may be.
Revision
effective December 17, 2001
Rule 6.4.1. Accounts. Time
for Filing.
The Register of Wills/Clerk of Orphans’
Court shall fix a filing deadline for each regular session and shall give
notice thereof at least two (2) weeks prior to the deadline. The time interval
between the deadline and the session shall be sufficient to enable the
Register/Clerk to make publication as provided by law and Rules of Court.
The Register of Wills/Clerk of Orphans’
Court shall schedule for the next regular session all matters filed before the
deadline for that session and shall make the required publication. The notices
shall contain a statement that all objections must be filed in writing before
the time fixed for confirmation, or final decree of discharge, as the case may
be.
Rule 6.9.1. Accounts.
Papers to be Submitted.
(a) All
Accounts. Counsel for all fiduciaries shall submit:
(1) Copies
of all agreements with respect to settlements and compromises;
(2) Accurate descriptions of all real
property to be awarded in kind, described by metes and bounds in the manner
appearing in the last deed of record, together with recital of title into the
decedent; and
(3) Statement
of Proposed Distribution.
(b) Accounts
of Trustees. Counsel for Trustees shall also submit:
(1) a
waiver of an income accounting executed by all of the income beneficiaries, if
the account does not contain a complete income accounting; and
(2) a
Statement of Proposed Distribution.
(c) Accounts
of Guardians of the Estates of Minors. Counsel for a
Guardian of the estate of a minor shall also submit:
(1) where
the former minor has attained the age of eighteen (18) years, his/her written
stipulation setting forth that he/she attained the age of eighteen (18) years
on a certain designated date, that he/she has examined the account and has
found it correct; and that he/she has received the balance or balances shown in
the account and requests that the guardian be discharged;
(2) where
the former minor has attained the age of eighteen (18) years but has not
executed the stipulation referred to in paragraph (18) of this Rule, then in
place thereof a Statement of Proposed Distribution shall be filed;
(3) where
the minor is deceased, or has been adjudged an incapacitated person under the
P.E.F. Code, or is an absentee or presumed decedent, or the guardian has
resigned or has been removed, a statement of Proposed Distribution shall be
filed.
(d) Accounts of Guardians of Estates of
Incompetents/ Incapacitated Persons. The annual account of
the guardian for an incompetent or incapacitated person shall be in the form
prescribed by Carbon County Orphans Court Rule No.14.3.
Rule 6.10.1. Objections.
Form and Content.
(a) Objections to an account, inventory, and
statement of proposed distribution shall be in writing; shall be numbered
consecutively; shall be signed by the objector or his or her attorney; and
where they contain allegations of fact, shall be properly verified in the same
manner as a petition.
(b) Each
objection shall be specific as to description and amount, shall raise but one
issue of law or fact, and shall set forth briefly the reason or reasons in
support thereof.
Rule 6.10.2. Objections.
Time for Filing.
(a) Written objections to an account,
inventory, or statement of proposed distribution may be filed as of course with
the Clerk at any time prior to, or at, the call of the account for
confirmation.
(b) No
objections shall be made or filed except as provided in subparagraph (a) unless
leave of Court is first obtained.
Rule 6.10.3. Objections.
Deposit on Account of Fees and Costs.
Upon
the filing of objections to an account, inventory or statement of proposed
distribution, objectors shall deposit with the Orphans Court the sum of $350.00
on account of the fees and costs of the Auditor or Master.
Rule 6.10.4. Objections.
Service. Return.
A copy of objections to an account,
inventory or statement of proposed distribution shall be served upon the
accountant and all other parties in interest or their attorney of record,
immediately after the objections have been filed with the Clerk. Proof of such
service shall be filed forthwith with the Clerk. Any unreasonable delay in
serving objections shall constitute grounds for dismissal of the same by the
Court.
Rule 6.10.5. Objections.
Failure to Make, Effect.
Any question which can be and is not
raised by objections conforming to these Rules shall not thereafter be the
subject of an exception to an order confirming an account or decreeing
distribution.
Rule 6.11. Confirmation
of Accounts. Awards.
(a) All accounts on the advertised Confirmation
List will be presented for Confirmation on the day set for confirmation unless
Objections have been filed.
(b) As an alternative to formal submission and
confirmation of an account, a personal representative may file with the Clerk
of Orphans’ Court a Family Settlement Agreement. Each Family Settlement
Agreement shall have attached thereto a first and final account of the
executor, administrator or other personal representative indicating all
transactions during the administration of the estate, which account shall be
substantially in the form prescribed by Pa.O.C. Rule 6.1 (g). Each Family Settlement Agreement shall also
have attached thereto a Statement of Proposed or Actual Distribution, and a
notarized release signed by each and every heir, beneficiary or other party in
interest approving the account, waiving the requirement that the account be
audited and confirmed by the Court and discharging the executor, administrator
or other personal representative.
Rule 6.11.2. Distribution
Under Section 3534 Of P.E.F. Code.
(a) Where at the time of distribution of the
estate the personal representative or a distributee requests the Court to
divide, partition, and allot the real estate or to direct a sale thereof, an
interlocutory decree shall be entered fixing a day certain, not less than
twenty (20) days from the date of the interlocutory decree, for hearing; the
interlocutory decree to be entered shall be in the form of a notice to all
parties in interest that on the day so fixed for hearing the Court will hear
the contentions of the parties in interest with respect to:
(1) whether the real estate can be divided
among less than all of the parties in interest without prejudice to or spoiling
the whole and if so, how; and
(2) whether the Court should direct the
personal representative to sell at a sale confined to the distributees or at a
private or public sale not so confined.
(b) A
copy of the interlocutory decree, duly certified, shall be served by certified
or registered mail, by the personal representative, upon all parties in
interest, not less than ten (10) days before the return day fixed in the
decree; proof of service of notice, in the form of return receipts, to be filed
upon the return day.
Rule 6.11.3. Settlement of
Small Estates. Contents of Petition.
(a) Contents of Petition. A petition
for the settlement of small estates under Section 3102 of the P.E.F. Code shall
set forth:
(1) the name, date of death, and residence
of the decedent;
(2) the petitioner’s name and address and
his/her relationship to the decedent;
(3) if the petitioner is the surviving
spouse, the date and place of marriage to the decedent;
(4) whether the decedent died testate or
intestate;
(5) the names, relationship, and interest of
all persons entitled to share in the decedent’s estate under the Will, if any
and the names, relationship and interest, if any, intestate heirs, stating who
are minors, incapacitated persons, or decedents, with the names of their
fiduciaries, if any, and whether any of them received or retained any property
of the decedent by payment of wages, salary or any accrued pension under
Section 3101 of the P.E.F. Code or otherwise;
(6) where a claim for family exemption is
included, a statement that claimant formed a part of the decedent’s household
at the date of death and, if the claimant is the surviving spouse, that he or
she has not forfeited the right to claim the family exemption;
(7) an itemized statement of the gross
personal estate to be distributed and the fair value of each item other than
cash, such value to be that given in the inventory filed, and if one was filed,
then the fair value, if not readily ascertainable, shall be fixed by two
appraisers whose affidavits of value shall be attached to the petition;
(8) the disbursements made prior to the
filing of the petition; the date and name of the person to whom paid; and the
nature and amount of each payment;
(9) the names of all unpaid claimants of
whom the petitioner has notice, the nature and amount of each claim, and
whether such claims are admitted;
(10) that a schedule of assets and deductions
for inheritance tax purposes has been filed with the Register of Wills, the
amount of any inheritance tax assessed, and the date of payment thereof, or the
reasons why no such schedule was filed; and
(11) a statement that ten (10) days written
notice of intention to present the petition has been given to every
beneficiary, heir, or unpaid claimant who has not joined in the petition, or to
the Attorney General, if the decedent’s heirs are unknown.
(b) Exhibits. The following
exhibits shall be attached to the petition:
(1) a copy of the decedent’s Will;
(2) the consents of unpaid beneficiaries,
heirs, and claimants; and
(3)
the inheritance
tax voucher, or in lieu thereof a statement from the inheritance tax department
that no tax is due.
Rule 7.1.1. Exceptions.
Form and Contents.
(a) No exceptions shall be filed to orders
or decrees entered in proceedings unless the right to except thereto is
expressly conferred by Act of Assembly, Pa. Orphans Court Rule, Local Rule, or
special order, and all decrees other than those to which exceptions are so
allowed to be taken are FINAL.
(b) Exceptions to findings of fact and
conclusions of law contained in adjudications, orders and decrees shall be in
writing, shall be numbered consecutively, and shall be signed by the exceptant
or his attorney.
(c) Each exception shall be specific, shall
raise but one question and shall set forth briefly the reason or reasons in
support thereof.
(d) Questions
which were the proper subject of objections to accounts, inventory, or
statements of proposed distribution and were not raised when the account was called
for confirmation, or questions which might properly have been raised by an
answer to or during a hearing on a petition, shall not be subject of
exceptions, and if so made shall be subject to dismissal.
Rule 7.1.2. Exceptions.
Time for Filing.
Except as otherwise provided,
exceptions shall be filed as of course with the Clerk within twenty (20) days
from service of a copy of the adjudication, order, proposed order, or decree
complained of, or a report of a Master or Auditor, and a true and correct copy
of the exceptions served upon all parties in interest, or their counsel of
record. Proof of service as aforesaid shall be filed with the Clerk prior to
any disposition of the exceptions.
Rule 7.1.3. Exceptions.
Partial Distribution.
When the matters which are the subject
of an adjudication, schedule of distribution, or the report of an auditor or
master, are so separate and distinct that an exception to any one or more,
whether sustained or dismissed, cannot affect the remainder, and the accountant
will not be prejudiced by the distribution of such remainder, confirmation of
the adjudication, schedule of distribution, or report, shall not be suspended,
except as to those matters to which exceptions have been filed; distribution
may proceed as to the remainder, and any party from whom such distribution has
been withheld may petition the Court to order distribution.
Rule 8.1.1. Appointment.
The Court, on its own motion, or upon
petition of the accountant, or of any other party in interest, may appoint an
Auditor or Master to assist the Court in the audit of an account or the
disposition of an issue of fact in a matter.
Rule 8.1.2. Notice of
Hearing. Hearings.
(a) The Clerk shall give written notice of
an Auditor’s or Master’s appointment to all counsel of record and all
interested parties not represented by counsel known to the Clerk.
(b) Notice of the hearings shall be given by
the Auditor or Master.
(c) The
hearing shall be held in an appropriate room at the Carbon County Courthouse at
a time and place indicated and not later than forty-five (45) days after the
Auditor’s or Master’s appointment and shall be extended only upon application
to the Court for good cause shown.
Rule 8.5.1. Transcript of
Testimony.
(a) Testimony given at an Auditor’s or
Master’s hearing shall be stenographically recorded, unless otherwise ordered
by the Court upon application by a party, or the Auditor or Master.
(b) The transcript of testimony taken before
an Auditor or Master shall be filed with the report.
(c) Fees
may be taxed as costs and the Auditor or Master shall recommend to the Court
that the stenographer’s fees follow the award as costs in appropriate cases.
Rule 8.6.1. Filing of
Report. Notice of Filing. Proof of Notice.
(a) An Auditor or Master shall file with the
Clerk of Orphans Court his or her original report, together with the transcript
of testimony and the proposed Decree Nisi, not later than 120 days after
conclusion of the final hearing, and shall give notice in writing to all
parties in interest or their counsel of record of the filing of such report,
and shall further file proof of the giving of notice with the Clerk.
(b) The
Clerk shall serve a copy of said report and proposed Decree Nisi upon each
counsel of record and to each party in interest not represented by counsel.
Rule 8.7.1. Report of
Auditor or Master. Disposition Procedure.
(a) Subject to the provisions of Carbon Co.
O.C.R. No. 8.8.1(a), the report of an Auditor or Master shall be transmitted to
the Court for Confirmation Nisi upon filing with the Clerk and shall become
FINAL unless written exceptions thereto are filed within twenty (20) days after
the date of filing the report.
(b) Exceptions.
Any party in interest shall have the right to file exceptions to the report of
an Auditor or Master within twenty (20) days after the filing and Confirmation
Nisi thereof.
Rule 8.8.1. Compensation
and Security.
(a) Any Auditor or Master appointed by the
Court under these Rules shall be compensated by reasonable fees as fixed by the
Court and paid from such sources as the Auditor or Master shall recommend and
the Court shall direct.
(b) A
motion to the Court to require additional security for payment of fees and
expenses may be filed with the Clerk at any time by the Auditor or Master,
Accountant or any party in interest. The report shall not be filed with the
Clerk until all fees and expenses have been paid.
Rule 9.1.1. Official Examiners.
Whenever an examination of assets is ordered in connection with
an accounting, the special order of appointment will be included in the
adjudication of the account, and the examiner shall make the examination after
the schedule of distribution has been filed and approved so that the assets
distributable to fiduciaries, which are the assets to be examined, will have
been determined.
Rule 9.1.2. Official Examiners. Compensation.
Each estate shall be liable for the compensation of the examiner
and the amount of such compensation shall be fixed by special Order of the
Court.
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RULE 10 - REGISTER OF WILLS
Rule 10.1.1. Appeals From Grant Of Letters
Appeals from the
grant of letters of administration or letters testamentary, whether founded
upon discovery of a later will or otherwise, shall initially be filed with and heard
by the Register of Wills, who shall conduct a hearing on such appeal within
thirty (30) days of the filing of same. The Register of Wills shall issue a
written decision granting or denying the appeal not later than ten (10) days
following the date of the hearing. Appeals to the Court from the decision of
the Register shall be as provided in Carbon Co. O.C.R. No. 10.1.2.
Rule 10.1.2. Form Of Appeal From Register Of Wills Decision.
When an appeal is taken from a judicial act or proceeding before
the Register of Wills, the appellant shall do so by petition which sets forth:
(1) the nature of the
proceedings before the Register of Wills;
(2) the reasons for
the appeal;
(3) the names and
addresses of all parties in interest, including those who have not been made
parties to the record and their counsel; and
(4) A request that a
Rule to Show Cause issued directed to all parties in interest including those
not represented on the record to show cause why the appeal should not be
sustained and the judicial act or proceeding complained of be set aside and
reversed.
Upon the issuance of the Rule to Show Cause, the Register of
Wills shall certify the record to the Court.
Rule 10.2.1. Inheritance Tax Appeals.
Practice and procedure in inheritance tax appeals shall be in
accordance with the Inheritance and Estate Tax Act, 72 P.S. '9101 et seq.
RULE 12 - SPECIAL PETITIONS
Rule 12.1.1. Family Exemption. Appraisal
(a) Where the
exemption is claimed from personal property included in the inventory filed,
the value of each item so claimed shall be that given in the inventory filed.
(b) Where the
exemption is claimed from personal property forming part of a Small Estate and no
inventory has been filed, the value of each item claimed shall be the fair
value thereof.
(c) Unless otherwise
directed by the Court, no appraisal shall be required if the exemption is
claimed;
(1) in money;
(2) from personal
property and the gross value of the estate does not exceed the amount of the
exemption;
(3) in real or
personal property at valuations agreed upon by all parties in interest.
Rule 12.1.2. Family Exemption. Allowance.
(a) Personal Property.
If the petitioner requests the
exemption prior to confirmation, the petitioner shall file a petition with the
Clerk and thereupon shall give ten (10) days written notice of intention to
request the exemption to the personal representative, if any, and to all
persons adversely affected thereby who do not join the prayer of the petition.
Objections to the exemption may be filed by any party in interest within twenty
(20) days of service of notice thereof.
1.
Real Property. If the Petitioner requests the exemption prior to the
Confirmation, the appraisers shall, within thirty (30) days after their
appointment, file with the Clerk an appraisal of the property claimed, and
written notice of such filing shall be given to the personal representative and
to the next of kin, or, if there be neither personal representative nor next of
kin, to the Attorney General. The notice
shall contain a copy of the petition and the appraisal, and a statement that
confirmation of the appraisal and the setting apart of the real estate to the
petitioner will be requested and may be allowed by the Court unless objections
are filed thereto within twenty (20) days. If the address or whereabouts of any
of the next of kin is unknown, notice shall be given in such manner as the
Court may direct.
Rule 12.1.3. Family
Exemption. Risk Distribution Prior to Confirmation.
When the personal representative at his
or her own risk delivers assets of the estate in satisfaction of the exemption
he shall set forth the same as a disbursement in the account under the subheading
"Family Exemption." Such delivery may be the subject of objection by
any claimant or party in interest.
Rule 12.2.1. Allowance to
Surviving Spouse of Intestate. Appraisal.
If an appraisal of property is needed,
the manner of appraising the property, of filing and confirming the appraisal,
and of advertising or giving notice thereof shall be by special order in each
case.
Rule 12.3.1. Election of
Surviving Spouse. Filing of Petition for Extension of Time.
(a) A petition for the extension of time in which
the surviving spouse may file an Election to Take Against the Will shall
include the requirements for a petition under Pa. O.C. Rule 12.3(a) and the
facts relied upon to justify an extension of time in which to file the
election.
(b) The petitioner shall file the petition
with the Clerk and thereafter give ten (10) days written notice of intention to
request the extension to all persons adversely affected thereby who do not join
the prayer of the petition.
(c) In
the absence of objection, on the presentation of an appropriate motion and
verified return of notice at the rule to show cause returnable day designated
in the petition, an appropriate decree may be entered.
Rule 12.5.1. Appointment of
Guardian for Minor. Consents Required.
(a) Consent of Parents or Person in Loco
Parentis. Written consent of the parents or surviving parent of the minor
to the appointment of a guardian of the estate or person is required. If both
parents are deceased, such consent is required of the adult person with whom the
minor resides or of the superintendent or other official in charge of the
institution having custody of the minor. If such consent is not obtained, the
petitioner shall set forth the reason and give such notice of the petition as
the Court may direct.
(b)
Consent of Guardian.
Individual. When the proposed guardian is an individual, written consent to
act as such shall contain the following:
(1) the individual's business, and domicile;
(2) a statement that the individual is a
citizen of the United States, able to speak, read, and write the English
language; and
(3) a statement that the individual is not
the fiduciary or an officer or employee of the corporate fiduciary of an estate
in which the minor has an interest nor the surety or an officer or an employee
of the corporate surety of such a fiduciary; and
(4) a statement that the individual has no
interest adverse to the minor.
(c) Consent of Guardian. Corporate. When
the proposed guardian is a corporation authorized to act as fiduciary, its
written consent to act as such shall contain a statement that it is not the
fiduciary of an estate in which the minor has an interest nor the surety of
such a fiduciary and that it has no interest adverse to the minor.
NOTE: The foregoing Rules relating to the appointment of a
guardian of a minor’s estate are subject to the powers given to persons to
appoint a guardian by Will, by inter vivos trust agreement, etc. (See Section
2519 of the P.E.F. Code.)
Rule 12.5.2. Guardians.
Minors. Bond. Restricted Account.
(a) If funds are placed in a restricted
account in accordance with the Probate, Estates and Fiduciaries Code, the
decree of the Court may contain a further provision that if no withdrawals are
made from the account prior to the minor reaching his majority, the institution
may pay over the funds when the minor attains age eighteen (18) years, upon the
joint requests of the guardian and the former minor without further Order of
the Court.
(b) A
guardian who has received assets in addition to the deposit or investment made
in accordance with this Rule shall account as if the restricted account did not
form part of the estate.
Rule 12.5.4. Minor's
Estate. Allowances. Approval of Court.
(a) Mandatory Approval by the Court. No
payments shall be made by the guardian of the estate unless approval by the
Court is first obtained when payment is to be made from principal, or when
special services have been performed by counsel and the guardian is in doubt as
to the reasonableness of the fee.
(b) Contents of Petition. Allowances for
Maintenance, Support, or Education. A petition for an allowance from a
minors estate, for the maintenance, support, or education of the minor, the
minor's spouse or children, shall be presented by the guardian of the estate
and shall set forth:
(1) the manner of the guardian's appointment
and the date thereof; and, where appropriate, the terms of the instrument
creating the estate;
(2) the age and residence of the minor;
whether his or her parents are living; the name of the person with whom he or
she resides; and, if married, the name and age of his or her spouse and
children;
(3) the value of the minor's estate, real
and personal, and the net annual income;
(4) the circumstances of the minor, whether
employed or attending school; if the minor's parents are living, the reason why
the parents cannot support and educate the minor without resorting to the
minor's estate;
(5) the date and amount of any previous
allowances by the Court;
(6) a recommendation to the Court of the
amount of the allowance the petitioner believes should be decreed; and
(7) if the petition is presented by someone
other than the guardian of the estate, that demand was made upon the guardian
to act, and the reason, if any, given for failure to do so.
(c) Contents of Petition. Joinder. Attached to the
petition shall be the joinder of the minor, if over fourteen years of age, and
of the parents or surviving parent; or, if both parents are deceased, the
joinder of the adult person with whom the minor resides, or the superintendent
or other official in charge of the institution having custody of the minor.
(d) Allowance for More than One Minor. A
single petition may be used for an order of allowance for care, maintenance and
education of more than one minor or for funeral expenses of a deceased child,
spouse, or indigent parent where the minors are members of the same family,
have the same guardian, and substantially the same reasons in support of the
petition apply to all of the minors.
(e) Allowance
from Sequestered Account. Whenever a sequestered deposit has been created
for the benefit of a minor, whether or not a guardian has been named,
allowances therefrom may be upon petition of anyone interested in the welfare
of the minor. Such a petition shall conform as nearly as may be to the
requirements of these Rules and shall, in addition, set forth the interest of
the petitioner in the matter.
Rule 12.9.1. Public Sale of
Real Property. Contents of Petition.
(a) Personal Representative. A
petition by a personal representative to sell real property at public sale,
under the P.E.F. Code, shall set forth in separate paragraphs
(1) name, residence, and date of death of
the decedent; whether he or she died testate or intestate, and the date of
grant of letters;
(2) that the personal representative is not
otherwise authorized to sell by the P.E.F. Code, or that the personal
representative is not authorized or is denied the power to do so by the Will;
or that it is desirable that the sale have the effect of a judicial sale,
stating the reasons;
(3) the total value of the personal estate
and all of the real property, respectively, as shown in the inventory filed,
including the value at which the real property to be sold was included therein;
(4) a full description of the real property
to be sold, improvements thereon, by whom it is occupied;
(5) if the personal representative entered
bond with the Clerk, the amount of such bond and the name of the surety;
(6) the names of all parties in interest, as
heirs, devisees, legatees, or lienholders, who will be affected by the granting
of the petition and the interest of each; whether any of them are minors,
incompetents/ incapacitated persons, or deceased, and if so, the names and the
record of the appointment of their fiduciaries;
(7) the liens and charges, if any, of record
against the property to be sold;
(8) the terms of the proposed sale; and
(9) any additional facts which may aid the
Court to determine that the sale is desirable for proper administration and
distribution of the estate.
(b)
Trustee- A Petition by a trustee to sell real property at public
sale under the P.E.F. Code shall set forth in separate paragraphs:
(1) a statement, in substance, of the
provisions of the instrument creating the trust, Particularly the powers, if any,
therein given to the trustee in respect of real property;
(2) a copy of the instrument creating the
trust, in the form of an exhibit, or if too lengthy, the relevant portions;
(3) the total value of the personal property
and the real property, respectively, forming the corpus of the trust;
(4) the amount of the bond, if any, filed;
(5) the
names of all parties interested as beneficiaries, including life tenants and
remaindermen, who will be affected by the granting of the petition, whether any
of them are minors, incompetents/incapacitated Persons, or deceased, and if so,
the names and the record of appointment of their fiduciaries;
(6) a full description of the real property
proposed to be sold, the improvements thereon, by whom it is occupied;
(7) the reason the sale of the real property
involved is necessary or desirable for the proper administration of the trust
estate;
(8) the liens and charges, if any of record
against the real Property to be sold;
(9) that the trustee is not otherwise
authorized to sell by the P.E.F. Code, or is denied the power by the trust
instrument; or that it is advisable that the sale have the effect of a judicial
sale, stating the reason; and
(10)
the terms of the proposed sale.
(c) Guardian. Incapacitated Person's Estate.
A petition by a guardian of an incapacitated person's estate to
sell real Property at public sale under the P.E.F. Code shall set forth in
separate paragraphs:
(1) the name, age, marital status and
domicile of the incapacitated person; the date of appointment of the guardian
and by what court; and the amount of bond filed;
(2) the total value of the Personal estate
and all of the real property, respectively, as shown in the inventory filed;
(3) a full description of the real property
proposed to be sold, the improvements thereon, by whom occupied;
(4) the names of the parties in interest as
heirs and/or next of kin;
(5) why the sale of the real Property
involved is necessary or desirable for the administration of the incapacitated
person's estate;
(6) the liens and charges, if any, of record
against the property to be sold; and
(7) the terms of the proposed sale.
(d) Guardian. Minor's Estate- A
petition by a guardian of a minor's estate to sell real property at public sale
under the P.E.F. Code shall set forth in separate paragraphs:
(1) the name, age, and domicile of the
minor; the date of appointment of the guardian and the amount of the bond
filed;
(2) the total value of the personal estate
and all of the real property, respectively, as shown in the inventory, if
filed, otherwise the value of each as received by the guardian and how and from
whom received;
(3) a full description of the real property
proposed to be sold, the improvements thereon, by whom occupied, and how title
was acquired by the minor;
(4) the name and relationship of the person
with whom the minor lives;
(5) where the proposed sale is of an
undivided interest, whether the owners of the other undivided interests join in
the proposed sale;
(6) why the sale of the real property
involved is necessary or desirable for the administration or distribution of
the minor's estate and whether the proposed sale is for the best interest of
the minors estate;
(7) the lien and charges, if any, of record
against the real property to be sold; and
(8) the
terms of the proposed sale.
Rule 12.9.2. Notice of
Public Sale of Real Property.
(a) Public notice of any proposed sale under
Order of Court shall be given by advertisement one (1) time in at least one
newspaper of general circulation published in the County of Carbon and in the
legal publication designated by these Rules, and shall be placed under a
general heading as follows:
COURT OF COMMON PLEAS OF CARBON COUNTY
ORPHANS' COURT DIVISION
PUBLIC SALE OF REAL ESTATE
IN
PURSUANCE OF AN ORDER OF THE ORPHANS' COURT DIVISION, THE REAL ESTATE INDICATED
BELOW WILL BE OFFERED FOR SALE AT THE TIME AND PLACE STATED. THE TERMS AND
CONDITIONS OF SALE ARE OF RECORD IN THE OFFICE OF THE CLERK OF THE ORPHANS'
COURT AT THE CARBON COUNTY COURTHOUSE, JIM THORPE, PENNSYLVANIA, WHERE THEY MAY
BE EXAMINED BY THE PARTIES INTERESTED.
(b) the advertisement shall give the name of
the decedent, trust beneficiary, minor, or incapacitated person, the
municipality in which he or she resided, the place in which lies the real
estate to be offered for sale, an abridged description of the real estate
(including, where possible, the street and house number, and block and lot
number), the improvements thereon erected, the place, date, and time of sale,
the name and title of the personal representative directed to make the sale,
and the name of the attorney representing the fiduciary.
(c) At least ten (10) days written notice
shall be given to all non-joining parties interested (1) as heirs, devisees,
legatees, or lien holders, where the property to be sold is that of a decedents
estate; or (2) as heirs and/or the next of kin, where the property to be sold
is that of an incapacitated person; or (3) as beneficiaries, including life
tenant and remaindermen, of the trust estate where the sale is to be by a
trustee; or (4) as the parents or other person maintaining the minor where the
property to be sold is that of a minor; or (5) as claimants.
The written notice herein provided for
shall be by personal service or by any form of mail requiring a receipt signed
by the person to be notified, mailed to the last known address of the person to
be notified.
Rule 12.9.3. Public Sale of
Real Property. Return of Sale.
All
returns of sale of real estate sold at public sale shall be in writing and
sworn to and shall include:
(a) proofs of publication of the notice
required by Carbon Co. O.C.R. 12.9.2.(a);
(b) when and to whom written notice was
given under Carbon Co. O.C.R. 12.9.2.(c); and
(c) the
name of the purchaser and the purchase price.
Rule 12.9.4.
Public Sale of Real Property. Decree.
Upon return of sale under Carbon Co.
O.C.R. 12.9.3, the Court may enter a Decree of Confirmation Nisi and fix the
amount of security or additional security which the personal representative,
trustee, or guardian shall be required to enter or the Court may excuse the
fiduciary from entering additional security; and the Decree of Confirmation
Nisi so entered is FINAL unless exceptions are filed within ten (10) days of
the date signed.
Rule 12.10.1. Private Sale of
Real Property.
A petition of a fiduciary to sell real
property at private sale shall also conform as closely as practicable to the
requirements of Carbon Co. O.C.R. 12.9 with regard to a petition to sell real
property at public sale by the same fiduciary and shall also be supported by
the affidavits required under Pa.O.C. Rule 12.10(b).
Rule 12.10.2. Private Sale
of Real Property. Public Notice of Sale. Form of Notice.
Public
notice of any proposed private sale under Order of Court shall be given by advertisement
one (1) time in at least one newspaper of general circulation published in the
County of Carbon and in the legal publication designated by these Rules; unless
excused by Order of Court, notice shall also be given by personal service or
registered mail to the last known address of all nonjoining interested parties
as specified in Carbon Co. O.C..R. 12.9.2(c); and shall be in the following
form:
COURT OF COMMON PLEAS OF CARBON COUNTY
ORPHANS' COURT DIVISION
PRIVATE SALE OF REAL ESTATE
In
the matter of the Estate of _________________________________ (deceased - a
minor - incapacitated person). To the heirs, legatees, devisees, next of kin,
and all other persons interested in said estate:
Notice
is hereby given that ______________________________________________________________
(personal
representative - trustee - guardian) has filed in the office of the Clerk of
the said Court a petition praying for an order of sale of the real estate of
said __________________________________(decedent - minor -incapacitated person)
situate
________________________________________________________________________________________
at
private sale to ______________________________ for the sum of $___________ for
the purposes in the petition set forth. If no exceptions are filed thereto or
objections are made to granting the same, the Court will be asked to take
action upon the petition on the ______________ day of ____________, _____, at
_____.m., in Courtroom No. ___, the Carbon County Courthouse, Jim Thorpe,
Pennsylvania.
_________________________________
Attorney
for Petitioner
Rule 12.10.4. Confirmation
of Sale.
If
no exceptions are filed or objections made, the Court may enter a decree:
(1) fixing the amount of security or
additional security which the personal representative, trustee, or guardian
shall be required to enter or excusing the fiduciary from entering additional
security; and
(2) confirming
the sale absolutely effective immediately or as of the time the required
security or additional security, if any, is approved and filed.
Rule 12.11.1. Mortgage of
Real Property.
A petition to mortgage real property by
a personal representative, trustee, or guardian shall conform as closely as
practicable to the requirements of Carbon Co. O.C.R. 12.10.1 with regard to a
petition to sell real property at private sale by the same fiduciary.
Rule 12.11.2. Pledge, Lease,
or Exchange of Real Property.
The practice and procedure governing
petitions by a personal representative, trustee, or guardian to pledge, lease,
or exchange, or to grant an option for the pledge, lease, or exchange of
property under the P.E.F. Code, shall be governed by Carbon Co. O.C.R. 12.10.1,
governing the private sale of real property by such fiduciary.
Rule 12.12.1. Inalienable
Property. Public Sale.
(a) A petition to sell real property at
public sale under Chapter 83 of the P.E.F. Code shall, in addition to other
requirements of the statute and Supreme Court Orphans' Court Rules, set forth
in separate paragraphs:
(1) How title was acquired, stating the date
and place of probate of the Will or recording of the deed, as applicable;
(2) If presented by a guardian, the method,
date and record of appointment, if any, or if none, identity of the petitioner
stating the relationship of the petitioner to the person owning the property;
(3) A full description of the real property,
its improvements, by whom it is occupied, its rental income, if any, and the
liens and charges to which it is subject;
(4) The interest of the petitioner, if any;
(5) A recital and history of the trust, if
any; the relevant provisions of the Will or deed pertaining to the real
property to be sold; the interest of a minor, if any; and the names of other
parties interested in the real estate and the nature of their interest;
(6) If for the benefit of a minor, the age
of the minor, the names of the minor's next of kin and that notice has been
given to them of the presentation of the petition;
(7) The names of all parties in interest,
their addresses, the nature and extent of their interests, stating which, if
any, are minors or incapacitated persons, and giving the names and record of
appointment of their guardians, if any,
(8) That the purpose of the proceeding is to
obtain a decree stating that the title transferred to the purchaser will be
indefeasible by any person ascertained or unascertained, or by any class of
persons mentioned in the petition or decree having a present or expectant
interest in the premises, and unprejudiced by any error in the proceedings of
the court;
(9) Sufficient facts to enable the court to
determine whether the proposed sale will be to the interest and advantage of
the parties, and whether the proposed sale may be made without prejudice to any
trust, charity, or purpose for which the real property is held, and without
violation of any laws which may confer an immunity or exemption from sale or
alienation; and
(10)
The names of any parties who do not
voluntarily appear.
(b)
The petitioner shall attach as
exhibits the consents to the sale signed by those parties in interest who
consent, and the notice which was given to those parties who do not consent or
voluntarily appear.
(c)
If all parties having an interest
do not voluntarily appear as petitioners or respondents, petitioner shall
request issuance of a rule to show cause directed to all parties who have not
appeared.
(d) The
practice and procedure with respect to notice, confirmation and entry of
security shall conform to the appropriate provisions of the P.E.F. Code and
Carbon Co. O.C.R. 12.9.2, 12.9.3 and 12.9.4.
Rule 12.12.3. Inalienable
Property. Private Sale.
(a) A petition to sell real property at
private sale under Chapter 83 of the P.E.F. Code, shall set forth in separate
paragraphs:
(1) The information required under Carbon
Co. O.C.R. 12.12.1(a) and (b), to the extent applicable;
(2) The name and address of the proposed
purchaser, the price to be paid; the terms of the proposed sale; and that the
price offered is better than can be obtained at a public sale; and
(3) When the proposed sale is of an
undivided interest, that the other parties in interest desire the sale to be
made and are willing to join in the deed.
(b) In addition to the exhibits referred to
in Carbon Co. O.C.R. 12.12.1(b), the petition shall have attached affidavits of
two (2) real estate appraisers setting forth the information required by
Pa.O.C.R. 12.10(b).
(c) If all parties having an interest do not
voluntarily appear as petitioners or respondents, petitioners shall request
issuance of a rule to show cause directed to all parties who have not appeared.
(d) The
court, in the decree approving or confirming the sale, will fix the amount of
security which the fiduciary shall be required to enter.
Rule 12.12.4. Inalienable
Property. Mortgage.
(a) Contents of Petition. A petition by a
fiduciary to mortgage real property, under Chapter 83 of the P.E.F. Code, shall
conform as closely as practicable to the requirements of Carbon Co. O.C.R. 12.9
with regard to a petition to sell real property at public sale by the same
fiduciary; shall set forth the amount and terms of the proposed loan; and shall
provide sufficient facts to enable the Court to determine whether the proposed
loan should be approved.
(b)
Exhibits. Security. The exhibits
required by Carbon Co. O.C.R. 12.12.3.(b) shall be attached to the petition,
with the proviso regarding consents, that if all parties having an interest do
not voluntarily appear as petitioners or respondents, a rule to show cause will
be granted directed to all parties who have not appeared, as provided by the
P.E.F. Code. Security shall be fixed as provided by Rule 12.12.3(d).
RULE 14 - GUARDIANSHIPS OF INCAPACITATED PERSONS
Rule 14.1. Form of Preliminary Decree.
(a)
Form
of Preliminary Decree. Each Petition for Adjudication
of Incapacity shall have attached thereto a Preliminary Decree for Guardianship
substantially in the following form:
IN THE COURT OF COMMON PLEAS OF CARBON COUNTY,
PENNSYLVANIA
ORPHANS’
COURT DIVISION
IN RE: ___________________________, No.
__________________
An
Alleged Incapacitated Person
PRELIMINARY
DECREE FOR GUARDIANSHIP
AND
NOW, this ____day of ______________, ______, to judicially resolve Petitioner's
request for the appointment of guardianship, the Court hereby:
ORDERS
and DECREES the following:
1. That a Hearing be held on the attached
Petition on the _____day of ___________________, _____, at ___.M. in Courtroom
No. ____, Carbon County Courthouse, Jim Thorpe, Pennsylvania.
2. The Court directs the issuance of an
appropriate citation with Rule to Show Cause why the above-captioned individual
should not be adjudged an Incapacitated Person and why the Court should not
appoint appropriate guardians.
3. Petitioner shall request a guardianship
of the following nature: a limited guardianship of the person, a plenary
guardianship of the estate.
4. Petitioner shall cause to be served (by
personal service) the Rule to show cause and Petition with attached Notice upon
the alleged incapacitated person at least twenty (20) days prior to the Court
hearing. The contents and terms of the Petition and the Notice shall be
explained to the maximum extent possible language and terms the alleged
incapacitated person is most likely to understand. An affidavit of service
shall be filed before the hearing and offered as an exhibit at the beginning of
the Court hearing.
5. At least 20 days notice of the Petition
and Hearing shall be given by personal service or certified mail to all persons
who are sui juris and would be entitled to share in the estate of the alleged
incapacitated person's estate if he/she died intestate at the time of finding
incompetency. Notice to possible interstate heirs in foreign nations shall be
directed by special Order of Court upon petition of the petitioner. Copy of
existing wills shall be provided to the court by petitioner and beneficiaries
or devisee shall receive notice as hereinbefore provided.
6. Petitioner shall notify the Court, in
writing, at least seven (7) days prior to the Court hearing if counsel has NOT
been retained by or on behalf of the alleged incapacitated person. This notice
shall also contain all pertinent information which indicates whether or not
counsel should be appointed to represent the alleged incapacitated person.
7. The alleged
incapacitated person shall be present at the Court hearing unless it is
established that his/her physical or mental condition would be harmed by
his/her presence, or it is impossible for
him/her to be present because of his/her absence from the Commonwealth.
BY THE
COURT:
________________________________
(b)
Form
of Rule to show cause. Every Petition for
Adjudication of Incompetency shall have attached to the Preliminary Decree provided
in subsection (a) of this rule a Rule to Show Cause or Citation in the form
prescribed by Pa. O.C.R. No. 14.5.
Rule
14.2. Adjudication of Incapacity and Appointment of a Guardian of the
Person and/or Estate of an Incapacitated Person.
Concurrent to the filing of a
petition to adjudicate an incapacity, the moving party/attorney shall complete
the individual information on a Notification of Mental Health Commitment Form
SP-4-131 and file it with the Orphan’s Court Division.
Effective March 1, 2001
Revision effective March 1, 2007
Rule 14.3. Accounts of Guardians.
On or before the first day of March
of each year, every guardian of the estate of an incapacitated or incompetent
person shall file with the Clerk of the Orphans’ Court an account of such
guardian’s administration of the estate during the preceding calendar year,
said account to be substantially in the following form:
IN
THE COURT OF COMMON PLEAS OF CARBON COUNTY,
PENNSYLVANIA
ORPHANS'
COURT DIVISION
IN RE: _________________________________ : NO.
____________________
PERIODIC
REPORT
FROM
______________, __________ TO ____________________,
______________
OF
THE GUARDIAN OF THE ESTATE
1) I am the limited/plenary
(circle one) guardian of the estate of my ward, named above, and my address,
including zip code is:
My telephone number at
work is ( ) and my
telephone number at home is ( ) .
2) I was appointed
guardian by Order of Court dated ________________________ which was/was not
(circle one) modified by Court Order(s) dated .
3) My initial
Inventory was filed on ___________________________ and listed a total estate
value of $______________________________.
The Inventory listed a total monthly
income of $_____________ comprised of the following:
___________________________________________________________________
___________________________________________________________________
___________________________________________________________________
4) At the beginning date of this reporting period, my initial
balance on hand was $____________________________.
5) During this reporting period, the following
reflects all sources of income (other than social security) received by me for
my ward: (Add additional pages if
needed)
Date
Received Source of Income
Amount
1. _____________ _________________________________
2. _____________ _________________________________
3. _____________ _________________________________
4. _____________ _________________________________
5. _____________ _________________________________
6. _____________ _________________________________
TOTAL - __________
6) During this reporting period, the following reflects all
payments I have made for my ward: (Add
additional pages if
needed):
Date To Whom Paid Reason for Payment Amount
1. __________________________ ___________________
2. __________________________ ___________________
3. __________________________ ___________________
4. __________________________ ___________________
5. __________________________ ___________________
6. __________________________ ___________________
TOTAL - __________