RULE 1. JUDGES -- LOCAL RULES
Local
Rule 1.2:1 Argument Court.
- Time -- Argument
Court shall be held on the first Monday of
each month unless otherwise specially ordered by the Court in any
particular case.
- Listing and Notice
thereof -- All cases for argument shall be placed on the Argument List
at least thirty (30) days prior to the argument by praecipe to the Clerk.
A copy of the praecipe ordering the case on the Argument List shall be
sent to the opposing counsel and to the Court Administrator by the party
placing the case on the Argument List, which praecipe shall include the
name of the opposing counsel and whether the matter listed requires the
taking of testimony.
- Scheduling -- The
Court Administrator shall give notice to all counsel that the case has
been placed on the Argument List and said notice shall contain the date
upon which argument will be held. The Argument List shall also be
published in the Mercer County Law Journal prior to argument.
- Briefs -- At least
fifteen (15) days before the date of Argument Court, it shall be the duty
of counsel for the rule or motion, or petitioner, exceptant or party
filing preliminary objections, or who has the affirmative, to serve on
adverse counsel a typewritten brief on paper 8 ˝ inches by 11 inches in size,
double spaced, except for quotations containing a concise statement of the
relevant facts, the questions involved, the argument, and the authorities
relied upon. Counsel for the adverse party may prepare a brief which need
only contain an argument and authorities relied upon, but counsel may add
a counter statement of the facts, and a counter statement of the questions
involved. Unless counsel does so, however, it will be assumed counsel is
satisfied with them or such parts of them as remained unchallenged. At
least five (5) days before Argument Court,
counsel shall serve a copy of the reply brief upon opposing counsel, and
copies of both briefs shall be delivered to the Court Administrator at
least five (5) days before Argument Court.
If either party fails to file a brief in accordance with these Local
Rules, the Court shall dispose of the argument without brief.
Local Rule 1.2:2 Attorneys.
The Local Rules of Civil Procedure of the
Court of Common Pleas of Mercer County relating to the admission and conduct of
attorneys are adopted as the Rules for the Orphans' Court Division of this
County.
Local Rule 1.2:3 Costs.
When not otherwise regulated by law, the
Court will allocate costs in such manner as it deems equitable.
Local Rule 1.2:4 Acknowledgement and Satisfaction.
Acknowledgement of satisfaction of all
sums of money or property ordered to be paid or delivered by any award or
decree of this Court shall be in writing and filed with the Clerk, or
acknowledged in such other manner as the Court may require.
Local Rule 1.2:5
Petitions to Enforce Compliance.
Any party in interest may petition the
Court for an order to enforce compliance with the provisions of a decree or an adjudication. A copy of such order shall be served upon
the respondent personally no less than ten (10) days before the date designated
therein for payment or delivery. If a party fails to comply with the order, the
other party may petition the Court for an appropriate writ to enforce
compliance therewith.
Local Rule 1.2:6 Certificates of Fiduciary
Appointment.
The Clerk shall not issue a certificate of
appointment of any fiduciary until the security, if any required, has been
entered.
Local Rule 1.2:7 Witnesses. Attachment.
Attachment to compel the appearance of a
witness will not be issued, except under special circumstances, and unless the
witness shall have been served with a subpoena at least twenty-four (24) hours
before the date for hearing.
Local Rule 1.2:8 Individual Sureties.
- Application for Approval. Justification for Surety -- Except
as otherwise provided by paragraph (b) of this Local Rule, an application
for the approval of an individual surety shall be accompanied by a
justification of surety, in affidavit form, of the proposed surety,
setting forth:
- name, residence address;
- location of the real property owned;
- a brief description of the real estate and
what it consists of;
- how, or from whom, the real estate was
obtained and when obtained;
- that the surety or sureties do not
contemplate selling of said property;
- any encumbrance upon the real property;
- the assessed value of the property for
taxation purposes;
- a certification of
the value of the said property.
- Bond Without Surety. Confession of Judgment--The
Court, in its discretion, may permit a party in interest to execute an
individual bond, without surety. When a party in interest is authorized to
execute an individual bond or individual surety is approved, the Court may
direct that the bond to be executed contain a warrant of attorney to
confess judgment, with or without default, and that judgment thereon be
entered of record in the Office of the Prothonotary.
Local Rule 1.2:9 Corporate Sureties.
- In General -- Surety companies duly authorized to do
business in this Commonwealth may become surety on any bond or obligation
required to be filed in Court.
- Exceptions -- except where required by statute or for
special cause shown, a bond will not be required of an approved corporate
fiduciary.
Local Rule 1.2:10 Assets and Investments.
- Segregation and Designation of Assets -- Assets held by
individual fiduciaries subject to the jurisdiction of the Court shall be
kept separate and apart from their individual assets and, except where
otherwise permitted by Act of Assembly, shall be held in the name of the
fiduciary as such .
- Deposit of Uninvested Funds -- All funds held uninvested
shall be deposited in a bank or banks, or trust company or trust
companies, the deposits of which are insured by the Federal Deposit
Insurance Corporation in such manner as to obtain the maximum deposit
insurance coverage.
Local
Rule 1.2:11 Court Depository.
- Official Depository
-- The Court will, from time to time, designate a banking institution as
the official depository of the Court.
- Deposits -- Moneys
and securities paid or delivered into the Court shall immediately, upon
the receipt thereof by the Clerk, be deposited with the Court depository
or to the credit of the proper estate or proceeding. The depository shall
keep separate accounts for each payment and delivery and designate each by
name of the proper estate or proceedings.
- Withdrawal Orders --
No money shall be paid or delivered by such depository except upon the
check or order of the Clerk, countersigned by a Judge of the Court, and
accompanied by a certificate endorsed on the check or order, under the
hand of the Clerk and the seal of the Court, that the money or property
was ordered to be paid or delivered.
- Accounting by Clerk
-- Each year, or at such other times as the Court may direct, the Clerk
shall have the bank or deposit book settled by the depository and shall
make and present to the Court an account of the moneys paid into and out
of the account, and shall exhibit the deposit book as a voucher for the
correctness thereof.
Local
Rule 1.2:12 Accounts.
The accounts of fiduciaries shall be presented to Court for nisi
confirmation at the date and time set for confirmation of accounts by the Court
as set forth in the Annual Court Calendar, unless otherwise directed by the
Court.
Local Rule 1.3 Termination of
Inactive Cases
During
the month of April of each year, the Clerk of the Orphans’ Court shall
determine in which matters not concluded there has been no activity during the
previous two years. The Clerk of the Orphans’ Court shall then give notice in
each such matter as provided by Pa. R.J.A. 1901(c). If no action is taken, or
no written objection stating good cause is filed in such matter within 30 days,
the Clerk of the Orphans’ Court shall enter an order terminating the matter. If
written objection is filed in such matter within 30 days, the Clerk of the
Orphans’ Court shall list the matter for the next available Argument List
without further praecipe and give notice to all parties. Failure of the
objector to appear and to show good cause may result in the dismissal of the action.
Where publication is required, such publication shall be twice printed in the
Mercer County Law Journal.
RULE 2. CONSTRUCTION AND APPLICATION OF RULES
Local
Rule 2.3:1 Definitions.
In addition to those words and phrases defined by the Supreme Court Rules,
the following words and phrases when used in these Local Rules unless the
context clearly indicates otherwise, shall have the
meaning ascribed to them in this Local Rule:
"Affidavit" means a written statement made under oath or
equivalent affirmation
"Hearing Judge" means that Judge to whom a motion, petition or
other pleading is presented.
“Supreme Court Rules" means the Supreme Court Orphans' Court Rules.
"Verify," "verification," or "verified statement" means an
unsworn written statement made under penalty of perjury.
RULE 3. PLEADING AND PRACTICE:
Local Rule 3.1:1 Notice to Defend or Plead.
Where a notice to defend or to plead has been endorsed on a pleading, the
pleadings and practice shall conform with the pleading
and practice in equity insofar as the requirement of responsive pleading.
Local Rule 3.1:2 Hearings:
Petitions and motions shall have attached thereto a proposed order of Court,
which shall be prepared by the party presenting the petition or motion, and
which shall include a date and time for a hearing and for the taking of
testimony, if necessary.
Local
Rule 3.1:3 Hearing Judge.
When a proceeding on a particular estate or matter has
been previously heard by a Hearing Judge, all subsequent proceedings pertaining
to the same estate or matter, whenever possible shall be presented to the same
Hearing Judge.
RULE 6. ACCOUNTS AND DISTRIBUTIONS
Local Rule 6.1(e): 1 Form of Accounts. Additional Requirements.
Each account:
- Shall itemize the assets of
which the balance is composed;
- Shall be accompanied with a
statement of proposed distribution, or a request that distribution be
determined by an auditor;
- Shall be accompanied by a
certificate of the attorney for the accountant that to the best of
knowledge, information, and belief, the debits and credits and any
statement of proposed distribution filed therewith are correct and proper
and that any required legal advertisement has been duly published;
- Shall be accompanied by an
affidavit or verification of at least one accountant that the account is
true and correct to the best of knowledge, information, and belief, and
that all notices required by law or Rules of Court have been served upon
all parties in interest; and
- Shall be accompanied by a
proposed decree of nisi confirmation and a proposed decree of confirmation
absolute.
Local Rule 6.1(f): 1 Approved Forms.
The Register and Clerk shall provide printed forms designed in accordance
with these Local Rules. An accountant shall use either these printed forms
together with such additional pages as shall be necessary, or a typed account
similar in form.
Local Rule 6.3:1 Contents
of Notice. Additional Requirements.
The notice to parties in interest shall set forth:
- the date on which the
account will be presented to the Court for nisi confirmation, and that the
account will be confirmed absolutely unless objections are filed within
ten (10) days thereafter;
- whether the claim, interest
or objection of the person notified is admitted or contested, and if
admitted, whether it will be paid in full or in part; and
- the
accountant's interpretation of any dispute or fairly disputable question,
known to or reasonably ascertainable by the accountant.
Local Rule 6.3:2 Advertisement of
Accounts.
All accounts required by law to be filed with the Register or with the Clerk
shall be advertised by the Register or Clerk in the manner prescribed by law
and shall also state that unless objections are filed within ten (10) days
after nisi confirmation, the account will be confirmed absolutely and that
thereafter distribution may be decreed by the Court, without reference to an
auditor, in accordance with any statement of proposed distribution filed with
the account.
Local Rule 6.9(a):1 Form of Statement of Proposed
Distribution.
The statement of proposed distribution, if any, shall accompany the account
as provided in Local Rule 6.1(e):1, and shall specify the names of the person
or persons to whom the balance available for distribution is awarded, the exact
amount of share awarded to such person or persons, and whether the proposed
distribution is in cash or in kind.
Local Rule 6.9(b):1 Notice and Advertisement.
Notice and advertisement of a statement of proposed distribution shall be
given at the same time and in the same manner as the account as provided in
Local Rules 6.3:1 and 6.3:2.
Local Rule 6.10:1 Objections.
Objections to an account or statement of proposed distribution shall be
filed with the Clerk within ten (10) days after nisi confirmation. In the event
objections are filed prior to nisi confirmation, they shall be considered as
objections to the decree nisi.
Local Rule 6.11.1 Confirmation
Absolute.
- Unless objections are filed
in accordance with Local Rule 6.10:1, the confirmation of accounts and
statements of proposed distribution filed with accounts shall be made
absolute by the Clerk, without further order of Court, provided that an
affidavit or verification is filed showing that notice has been given in
compliance with Local Rule 6.3:1. The confirmation of the account and any
statement of proposed distribution filed with the account shall be placed
upon the record and the account by the Register and Clerk.
- No account, or statement of
proposed distribution filed with any account, shall be considered finally
confirmed except by written confirmation by the Clerk as hereinbefore
provided or by order of Court; and such final confirmation, if relating to
a statement of proposed distribution filed with any account, shall
expressly state that it is a final confirmation of the account and the statement
of proposed distribution filed therewith.
Local Rule 6.11.2 Confirmation of
Title to Real Property.
a.
In General-- When the account and the statement
of proposed distribution filed therewith have been
finally confirmed as hereinbefore provided. such
confirmation shall be in the nature of confirmation of title to real property
in the respective distributees.
b.
Separate Awards -- A schedule of distribution
shall set forth separate awards of real property in separate paragraphs.
c.
Description -- Real property shall be described
in the manner appearing in the last deed of record, or in some other proper
manner, and in addition, shall include information pertinent to the derivation
of title.
d.
Certification by Clerk-- The
Clerk may, at the request of any party in interest, certify excerpts from a
decree of distribution for recording in any public office for recording deeds.
Local Rule 6.11.3 Distribution
without Audit.
After final confirmation of the account, the Court, on motion or petition,
may decide that the matter does not call for reference to an auditor and may
decree distribution substantially in conformance with the statement of proposed
distribution filed with the account, provided such motion or petition is
accompanied by:
- an affidavit or verification
of the accountant that there are no unpaid debts or taxes, and that all
beneficiaries have received notice of the statement of proposed
distribution;
- an affidavit or
verification by the accountant or one of the next of kin or beneficiaries
stating the names and addresses of all the beneficiaries, and that they
are all sui juris., or if not, the names and addresses of their
fiduciaries;
- a statement by the attorney
for the accountant that the schedule of distribution is correct and in
accordance with law; and
- a
proposed decree of distribution.
RULE 8. AUDITORS AND MASTERS
Local Rule 8.1:1 Notice of Hearings.
- Original Hearing --
Ten (10) days notice of the time and place of the first hearing before the
auditor or master shall be served in writing on all known heirs, devisees,
unpaid legatees, and distributees, or their attorneys resident within the
county, and to all others by advertisement in one (1) newspaper of general
circulation within the county and the Mercer County Law Journal once a
week for three (3) consecutive weeks prior to the day of the hearing,
unless notice be dispensed with by agreement of all parties in interest,
or by order of Court. Auditors and masters shall state in their report the
manner and to whom notice was given.
- Subsequent Hearings
-- Notice of succeeding hearings given by the auditor or master at a
hearing of which proper notice has been given shall constitute sufficient
notice of such succeeding hearings.
Local Rule 8.6:1 Notice of Filing
Report. Preliminary Exceptions.
After the report is prepared, the auditor or master shall serve on the
parties, or their attorneys, ten (10) days written notice of the day fixed for
filing the same and in the meantime, such parties shall be allowed access
thereto. Any party interested may file preliminary exceptions to the report,
before the day fixed for the filing thereof. If preliminary exceptions are
filed, the auditor or master shall reexamine the report and amend the report if
the preliminary exceptions are, in whole or in part, well founded. If the
report is not filed at the time fixed therefore in the said notice, said report
shall only be filed after five (5) days written notice is given to the parties,
or their attorneys. The auditor or master shall certify in the report the manner
and time of serving the notice herein required.
Local Rule 8.7:1 Approval of Expenses
and Fees prior to Confirmation.
No auditor's or master's report shall be confirmed nisi or otherwise
approved until such time as the Court shall have entered an order approving the
amount of expenses to be reimbursed unto and the amount of fees to be awarded
unto the auditor or master. The Court may assess said expenses and fees upon
any party in interest, as it deems fit.
Local Rule 8.7.2 Confirmation of
Auditor's Reports. Exceptions.
All reports of auditors shall be filed in open Court at the time and date
set by the auditor, pursuant to these Rules. Upon the filing of the report, it
shall be confirmed nisi, which confirmation shall be made absolute by the Clerk
without further order of Court, unless exceptions thereto are filed.
Local Rule 8.7.3 Confirmation of
Master's Reports. Exceptions.
All reports of masters shall be filed in open Court at the time and date set
by the master pursuant to these Rules. Upon the filing of the report, the Court
shall enter a decree nisi either adopting the master's recommendations or
rejecting the same. A decree nisi shall be made final by the Clerk without
further order of Court, unless exceptions thereto are filed.
Local Rule 8.8:1 Absolute
Confirmation. Auditor's and Master's Expenses
and fees.
No nisi confirmation or decree nisi shall be confirmed absolutely by the
Clerk until all expenses and auditor's or master's fees have been paid to the
Clerk. Upon absolute confirmation, the Clerk shall pay all expenses and the
balance of the auditor's or master's fee to the auditor or master, after
deducting ten (10%) percent of the auditor's or master's fee to be paid to the
treasurer of the Mercer County Bar Association.
RULE 9. OFFICIAL EXAMINERS
Local Rule 9.1:1 Appointment and
Duties of Official Examiners.
In the exercise of its visitorial and supervisory powers over charitable
trusts the Court will, in its discretion, from time to time, by general rule or
special order, direct the official examiner, or a special examiner appointed
for the purpose, to make an examination of the assets of a designated trust and
an investigation to determine whether the purposes of the trust are being
carried out in the manner provided by the trust instrument; and to submit to
the Court a written report thereon which shall follow as nearly as may be the
form prescribed by these Local Rules for a master's report and shall contain
specific recommendation for the Court's consideration.
Local Rule 9.1:2 Compensation of Official Examiners
- In General -- Each
estate or trust shall be liable for the compensation of the examiner based
upon a schedule of fees fixed by the Court. In special circumstances, the
compensation of the examiner will be fixed by special order of the Court.
- Charitable Trusts --
Each charitable estate or trust shall be liable for the compensation of
the examiner in such amount as the Court shall specifically fix in each
case.
RULE 10. REGISTER OF WILLS
Local Rule 10.2:1 Notice of Appeal.
Any person desiring to appeal from a judicial act or decision of the
Register shall file a written notice thereof with the Register, specifying
generally the act or decision complained of, accompanied by an affidavit or
verification that said appeal is not taken for delay but because appellant
believes that injustice results from the act or decision which is appealed .
Local Rule 10.2:2 Petition for
Appeal.
Within thirty (30) days from the filing of the notice of appeal, the
appellant shall present a petition to the Court which shall set forth:
- the nature of the
proceedings before the Register;
- a copy of any will in
controversy;
- a statement of the facts
and circumstances relied upon;
- a precise statement of the
questions of law or of fact involved;
- the filing and approval by
the Register of the security required by law; and
- the
names and addresses of all parties in interest.
Local Rule 10.2:3 Certification and
Citation.
- If the averments of the
petition for appeal appear to be prima facie sufficient, the Court shall
award a citation and, if it has not been done by the Register on his/her
own motion, order certification of the entire record of the Register to
the Court. The citation shall be directed to all parties in interest and
shall require them to file a complete answer under oath or verification to
the averments of the petition, on or before a day certain which shall not
be less than ten (10) days after the service thereof, and to show cause as
the decree of the Court shall provide.
- Proof of service of the
citation shall be filed with the Register on or before the return date of
the citation.
- The Court may issue a
citation and direct that the Register certify to the Court the record,
without regard to whether or not testimony has been taken before the
Register.
Local Rule 10.2:4 Argument List and
Hearing.
After the return date of the citation, any party may place the matter on the
Argument List for the purpose of fixing a time for taking any testimony
required to support the issue or for the argument of any legal issue raised by
the pleadings. After the testimony has been transcribed and filed, any party
may place the matter on the Argument List for purpose of argument.
Local Rule 10.2:5 Grant of Jury
Trial.
- Determination by Judge
-- The Hearing Judge shall determine whether a jury trial will be granted
upon any issue of fact arising upon the certification or appeal.
- Decree -- If a jury
trial is granted, the decree shall specify the issues to be tried,-which
may be agreed upon by the parties, or as the
Hearing Judge shall determine.
RULE 12. SPECIAL PETITIONS
Local Rule
12.1.1 Family Exemption. Additional Requirements.
- Contents of Petition
-- A petition for a family exemption shall also set forth in separate
paragraphs:
- the name, residence
and date of death of decedent;
- the name, address and
relationship of the petitioner to the decedent, and whether the
petitioner formed a part of decedent's household at the date of his
death;
- if petitioner be the
surviving spouse, the date and place of the ceremonial marriage; or, in
case of a common-law marriage, all averments necessary to establish the
validity of such a marriage;
- whether the decedent
died testate or intestate; where, when, and to whom letters were granted;
and if decedent died intestate, the names, relationship and addresses of
those interested as next of kin;
- the location and
valuation of the property claimed;
- that ten (10) days
prior notice of the filing of the petition has been given to the personal
representative, or, when no letters have been granted, to the parties
adversely affected; and
- a
request for appraisers when an appraisal is required.
- Exhibits -- The
following exhibits shall be attached to the petition:
- a copy of the will:
- a copy of the
inventory and appraisement showing the valuation of the property claimed,
when the exemption is claimed from personal property, and the gross
estate exceeds the statutory amount of the family exemption; and
- an
affidavit or verification of return of notice.
Local
Rule 12.1.2 Appraisal.
- When Appraisal
Unnecessary -- Unless otherwise directed by the Court, no appraisal
shall be required if the exemption is claimed:
- from personal
property; or
- wholly
or in part from real estate, if all parties in interest agree on the
valuation.
- Procedure for Appraisal
When Required --
- Upon petition the
Court may appoint two (2) appraisers who shall, within thirty (30) days
after their appointment, file with the Clerk an appraisal of the property
claimed.
- Upon the filing of
the appraisal with the Clerk, the appraisers shall also give notice
thereof to the personal representative and to the next of kin; and, 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
nisi confirmation of the appraisal will be requested and may be allowed
by the Court at a stated date, and unless exceptions are filed thereto,
the appraisal shall be confirmed absolutely ten (10) days thereafter by
the Clerk without further order of Court. Said notice shall be given by
the appraisers not less than ten (10) days prior to the date set for nisi
confirmation.
Local
Rule 12.1.3 Voluntary Distribution.
When the personal representative, at his own risk delivers assets of the
estate in satisfaction of the exemption, he shall set forth the same as a
credit in the account. The same may be the subject of objection by any claimant
or party in interest.
Local Rule
12.2.1 Allowance to Surviving Spouse of
Intestate. Additional Requirements.
- Contents of Petition
-- A petition for the allowance to the surviving spouse of an intestate
shall also set forth in separate paragraphs:
- the information
required in a petition for family exemption under Local Rule 12.1(a):1,
as far as appropriate; and
- that
ten (10) days prior notice of the intended presentation of the petition
has been given to the personal representative; or, if no personal
representative has been appointed, to those interested as next of kin;
and, if there be no next of kin, to the Attorney General.
- Exhibits -- The
following exhibits shall be attached to the petition:
- a copy of the
inventory and appraisement; and
- an
affidavit or verification of return of notice.
Local
Rule 12.2.2 Conclusiveness of Averments.
If the averments of the petition are not conclusive as to the right of the
spouse to the allowance being claimed, the matter may be referred to a master,
auditor, or to a Hearing Judge.
Local Rule
12.2.3 Appraisal. Notice.
Practice and Procedure.
- Filing of Appraisal
-- The appraisers shall, within thirty (30) days after their appointment,
file with the Clerk an appraisal of the property claimed.
- Notice of Appraisal -
- Upon the filing of the appraisal, notice thereof shall be given to the
personal representative, and to the next of kin, and if there be neither
personal representative nor the next of kin, to the Attorney General. The
notice shall contain a copy of the petition and the appraisal, and a
statement that nisi confirmation of the appraisal and the setting apart of
the real estate to the surviving spouse will be requested and may be
allowed by the Court at a stated time, and unless exceptions are filed
thereto, confirmed absolutely ten (10) days thereafter. Said notice shall
be given not less than ten (10) days prior to the date set for nisi
confirmation. If the address or whereabouts of any of the next of kin is
unknown, notice shall be given in such manner as the Court shall direct.
- Confirmation and Setting
Apart of Allowance -- Unless exceptions are filed to the nisi
confirmation, the appraisal and award of real estate shall be confirmed
absolutely by the Clerk without further order of Court.
- Exceptions --
Exceptions to an appraisement shall be filed with the Clerk within ten
(10) days after nisi confirmation. Copies of the exceptions shall be
served on the fiduciary, if any, and on the spouse or their attorney,
within five (5) days after filing. If exceptions are filed, the matter may
be placed on the Argument List by praecipe for disposition.
- Claim for Money -- If
the entire claim is for money, which need not be appraised, claim may be
made at or before the audit of the fiduciary's account, provided no
payment shall be made to the spouse until it appears that the money
claimed is not required for payment of debts.
Local
Rule 12.3.1 Extension of Time. Contents of
Petition.
A petition for the extension of time in which the surviving spouse may file
an election to take against the Will shall set forth:
- the information required to
be set forth in a petition under Supreme Court Rule 12.3(a), paragraphs
(1) through (7), inclusive, as far as appropriate; and
- the
facts relied upon to justify an extension of time in which to file the
election.
Local
Rule 12.3.2 Extension of Time. Practice and
Procedure.
The petitioner shall file the petition with the Clerk and thereafter give
ten (10) days written notice of intention to request the extension at a stated
day to all persons adversely affected thereby who do not join in the prayer of
the petition. In the absence of objection, upon the presentation of an
affidavit or verification of return of notice on or after said day, an
appropriate decree may be entered by the Court.
Local Rule 12.4:1 Guardians and Trustees Ad Litem. Appointment and Compensation.
Each estate shall be liable for the compensation of the guardian ad litem or
the trustee ad litem based upon a schedule of fees fixed by the Court. In
special circumstances, the compensation of the guardian ad litem or the trustee
ad litem will be fixed by special order of the Court.
Local
Rule 12.5.1 Exhibits to Petition.
The following exhibits shall be attached to the petition:
- Consent of Parents or
Person in Loco Parentis -- Written consent of the parents or the
surviving parent of the minor to the appointment of a guardian for his
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 and, the spouse of the minor if the minor is married.
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
.
- Consent of Guardian.
Individual -- When the proposed guardian is an individual, the written
consent to act as such shall contain the following statements:
- his/her business and
domicile;
- that he/she is a
citizen of the United States,
able to speak, read and write the English language;
- that
he/she 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 that he/she has no interest adverse to the minor.
- Consent of Guardian. Corporate
-- When the proposed guardian is a corporate fiduciary, its written
consent to act as such shall contain, in addition, 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.
- Funds Arising From
Litigation -- If any part of the minor's estate was obtained as a
result of litigation or compromise of litigation in a Court of record, a
copy of the decree approving the compromise and distribution of the
proceeds of the suit shall be attached to the petition.
Local Rule
12.5.2 Guardians of Minors. Appearance Before the Court.
- Appearance. Minor over
Fourteen -- If the minor is over fourteen (14) years of age, the minor
shall appear in person at the presentation of the petition and shall make
the selection of guardian before the Court. If the minor is unable to appear in
person, the reason for the minor’s absence shall be set forth in the
petition. When a minor appears in person, the minor need only state
his/her selection of guardian.
- Appearance. Other
Persons -- Neither a minor fourteen (14) years of age or under, nor
the parents or proposed guardian of the minor need appear in Court at the
presentation of the petition.
Local Rule 12.5.3 Information Required from
Counsel.
At the time of the presentation of the petition for the appointment of an
individual guardian, counsel shall state the following in Court:
- the total amount of the
assets;
- whether or not the minor
resides in the same household with the proposed guardian; and
- whether
it is proposed to deposit the share of' the minor in a restricted account.
Local Rule 12.5.4 Minor's
Estate. Restricted Account.
- Waiver
of Security -- In lieu of the entry of security, the Court, in the
decree appointing the guardian, may authorize the guardian to deposit the
funds of the minor in an interest-bearing deposit insured by the Federal
Deposit Insurance Corporation subject to the express restriction, to be
noted on the records of the institution, that no withdrawals shall be made
therefrom without order of Court, with a further requirement that the
evidence of the deposit or investment, marked to indicate the restriction,
shall be promptly exhibited to the Court.
- Limitation: The
deposit under paragraph (a) of this Local Rule shall not exceed the
statutory limitation as provided in Section 5103 of the Probate, Estates,
and Fiduciaries Code (20 Pa. C.S.A. § 5103).
- Payment at Majority of
Minor --
- The decree of the
Court may contain a further provision that if no withdrawals are made
from the account during minority, the institution may pay over the funds
when the minor attains his majority, upon the joint order of the guardian
and the former minor without further order of the Court.
- If, upon subsequent
order of this Court, withdrawals have been made from the account during
minority, the guardian shall file a petition for his discharge upon the
minor's attaining his majority. There shall be attached to the petition:
- an affidavit or
verified statement in the nature of an account, containing items of
administration, distribution, principal, and income, which shall be
separately stated;
- an affidavit or
verified statement by the guardian setting forth the date he attained
his majority; that he has examined the account; that he has received the
money, or benefit of the money, for which credit is taken in the
account; that he approves account and requests that it be confirmed; and
that, upon distribution to him of the balance shown thereon, subject to
such additional credits as may be authorized by law and set forth in the
petition and order, he agrees that the guardian shall be discharged.
- Additional Assets --
When the guardian has received assets in addition to the deposit or
investment made in accordance with this Local Rule. he
shall account as if the restricted account did not form part of the
estate.
Local Rule 12.5.5 Minor's
Estate Not Exceeding Statutory Limitation.
- Disposition. In General
-- If the value of the real and personal estate of a minor does not exceed
the statutory limitation as provided in Section 5103 of the Probate,
Estates, and Fiduciaries Code (20 Pa. C.S.A. § 5103), the Court may:
- authorize payment or
delivery thereof to the minor or the parent or other person maintaining
the minor;
- direct the deposit
of the minor in a restricted account in the name of a natural guardian of
the minor or of the minor individually; or
- make
such provision for the retention or deposit of securities or other assets
as the Court shall deem for the best interests of the minor.
- Mortgage or Sale
of Real Property. -- If the value of the entire estate of a minor does
not exceed the statutory limitation as provided in Section 5103 of the
Probate, Estates, and Fiduciaries Code (20 Pa.C.S.A. § 5103), the Court,
upon petition, may authorize the parent or other person maintaining the
minor to convey or mortgage any real property forming a part or all of
such estate, without the appointment of a guardian or the entry of
security. The petition shall conform to the requirements of the provisions
governing the same or mortgage of real property by a guardian. The order
of the Court may be conditioned upon the deposit of the proceeds of the
sale or mortgage in a restricted account.
Local
Rule 12.5.6 Minor's Estate. Allowances.
- In
General. Responsibility of Guardian -- Expenditures from income
for the benefit of the minor, and Counsel fees in
a nominal amount for routine services, whether payable from principal or
income, should ordinarily be made by the guardian upon his own
responsibility without application to the Court for approval.
- Permissive Petition
-- The guardian may petition the Court for approval of periodical payments
from income needed for the maintenance, support, or education of the
minor, the minor’s spouse or children.
- Mandatory Petition
-- Except as provided in paragraph (a) of this Local Rule, unless approval
by the Court is first obtained, no payments shall be made by the guardian
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.
- Contents of Petition.
Allowance for Maintenance, Support, or Education -- A petition for an
allowance from a minor's estate, for the maintenance, support or education
of the minor, the minor’s spouse or children, shall set forth:
- the manner of the
guardian's appointment and qualification, and the dates thereof; and the
terms of the instrument creating the estate;
- the age and
residence of the minor; whether the minor’s parents are living; the name
of the person with whom the minor resides, and, if married, the name and
age of the minor’s spouse and children;
- the value of the
minor's estate, real and personal, and the net annual income;
- the circumstances of
the minor, whether employed or attending school; if the minor's parents,
or the persons charged with the duty of supporting him, are living, the
financial condition and income of such persons and why they are not
discharging their duty to support the minor; and whether there is
adequate provision for the support and education of the minor, or the
minor’s spouse and children;
- the date and amount
of any provision allowance by the Court, and the name of the Judge who
granted it;
- the financial
requirements of the minor and the minor’s family unit, in detail, and the
circumstances making such allowance necessary; and
- if
the petition is presented by someone other than the guardian, that demand
was made upon the guardian to act, and the reason, if any, given by him/her
for his/her failure to do so.
- Contents of Petition.
Allowance of Counsel Fees -- A petition for the allowance of counsel
fees shall set forth the views of the guardian with respect to the
reasonableness of the fees and contain sufficient facts to enable the
Court to pass judgment on the matter. The following exhibits shall be
attached to the petition:
- a statement of
counsel setting forth in detail the nature and extent of the services
performed by him/her; and
- the joinder of the
minor's 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, and the spouse of a married minor.
Local
Rule 12.6.1 Appointment of a Trustee. Exhibits.
The following exhibits shall be attached to the petition:
- a copy of the trust
instrument; and
- the
written consent of any co-trustee.
Local Rule 12.7:1 Discharge of a Fiduciary. Additional
Provisions.
- Affidavit or
Verification -- The affidavit or verified statement to the petition
shall include an averment that the parties who have signed the consents to
discharge are all the parties interested in the estate, or the reason for
the failure of any party to consent. If any party shall fail to consent,
the Court may, if the circumstances require, direct the issuance of
notices by citation or otherwise.
- Exhibits. Consents
-- Written consent of all parties in interest, and of the surviving or
successor fiduciary, shall be attached to the petition. Such consent may
be included in a satisfaction of award attached to the petition.
- Discharge of a Personal
Representative -- When the value of the gross real and personal estate
of a decedent does not exceed the value of the statutory limitation, the
personal representative, after the expiration of one (1) year from first
complete advertisement of the grant of letters, may present a petition to
the Court with an account attached under the provisions of Section 3531 of
the Probate, Estates and Fiduciaries Code (20 Pa.C.S.A. § 3531). The
petition shall conform as far as practicable to the requirements of a
petition under Supreme Court Rule 12.7.
Local Rule 12.8:1 Partition. Additional Provisions.
The fiduciary selling real property in a partition proceeding shall file an
account after the sale is completed. The Court may dispose of the matter or may
appoint an auditor to ascertain whether there are any liens or other
encumbrances on such real property affecting the interests of the parties.
RULE 13. DISTRIBUTION -- SPECIAL SITUATIONS
Local Rule 13.3:1 Report by
Fiduciary.
The report required by the Supreme Court Rules shall be submitted to the
Court or to an auditor appointed by the Court, and shall include substantially
the following:
- Unknown Distributee
-- If it appears that the identity or whereabouts of a distributee is
unknown, or there are no known heirs, the fiduciary shall submit a written
report, sworn to or verified by the fiduciary or his counsel, setting
forth:
- The nature of the
investigation made to locate the heirs of the decedent, in complete
detail; and
- in cases of
intestacy, or where there are no heirs, a family tree, as complete as
possible under the circumstances, supported by such documentary evidence
as the fiduciary has been able to obtain.
- Investigation Defined
-- The term "investigation," as used in this Local Rule, shall
include inquiry of or as to as many of the following as may be pertinent
and feasible: residents of the household in which the decedent resided;
friends and neighbors; labor union membership; places of employment;
social, fraternal, or beneficial organizations; insurance records; church
membership; school records; social security, Veterans' Administration, or
military service records; naturalization records, if not native born; and
such other sources of information as the circumstance- may suggest.
- Non-Resident Distributee
-- If the fiduciary requests the Court to withhold distribution to a
non-resident distributee, the fiduciary shall submit a written report,
sworn to or verified by the fiduciary or the fiduciary’s counsel, which
shall set forth:
- the relationship of
the distributee to the decedent, and any available information concerning
the distributee’s present whereabouts;
- in cases of intestacy,
a family tree, as complete as possible under the circumstances, supported
by such documentary evidence as the fiduciary has been able to obtain;
and
- the
reason for the request that distribution be withheld, and the suggested
manner of withholding.
RULE 14. INCOMPETENTS' ESTATES
Local Rule 14.1:1 Practice and
Procedure. In General.
- Evidence.
Depositions--Except for special reason appearing, the deposition of, or
sworn or verified statement by, a superintendent, manager. physician or psychiatrist of any state-owned mental
hospital or Veterans' Administration hospital, or a physician in
attendance to the alleged incompetent will be accepted in evidence as to
the mental or physical condition of a patient of said hospital or
physician.
- Guardians --
- Relatives and
Household Residents -- The Court, except in special circumstances,
shall not appoint as guardian a relative of the incompetent or a person
residing in the same household with him.
- Non-residents
-- The Court, except in special circumstances, shall not appoint
non-residents as guardians of the estate of incompetents residing within
this county.
- Security. Individual
Guardian -- In lieu of the entry of security, an individual guardian
may be authorized to deposit the funds compromising the incompetent's
estate in accounts insured by the Federal Deposit Insurance Corporation
the account to be marked ''Not to be withdrawn except on further Order of
the Court." Upon cause shown, the Court may dispense with the
requirement of a bond when it finds that no bond is necessary.
- Additional Assets --
If, upon the filing of an inventory, it appears that the value of the
personal estate which has, or is about to, come into the possession of the
guardian exceeds the amount set forth in the original petition, the Clerk
shall direct the Hearing Judge's attention to this fact in order that
adequate security may be ordered and entered.
- Testamentary Writings
-- All testamentary writings of the incompetent found by the guardian, or
in the possession of any other person, shall, at the time of the filing of
the inventory, be submitted by the guardian or such other person to the
Hearing Judge for his inspection, together with a copy to be retained by
the Judge for his private file.
- Certificates of
Appointment -- The Clerk, in addition to issuing certified copies of
the decree of appointment of a guardian, will issue a "Guardian's
Certificate" when the security, if any, ordered by the Court has been
entered.
Local Rule 14.1:2 Incompetent's
Estate. Decrees.
- In General -- A
petition to adjudicate a person incompetent shall have attached thereto:
- a proposed
preliminary order in accordance with Local Rule 3.1:2; and
- a
proposed decree.
- Small Estates -- If
at a hearing the incompetency is established, and it appears that the
gross estate does not exceed the statutory limitation for a small estate,
the Court may award the entire estate to the person or institution
maintaining the incompetent, or make such order as may be appropriate
under the circumstances. In such case, a proposed final decree awarding
said estate shall be attached to the face of the petition, in lieu of the
final decree appointing a guardian.
Local Rule 14.1:3 Incompetent's
Estate. Proof of Service.
Proof of service of notice shall be presented at the hearing. The affidavit
or verification of service shall, in all cases, recite that the petition and
citation were read to the alleged incompetent. When the alleged incompetent is
in a hospital, service may be made by a physician in charge.
14.2. Adjudication of
Incapacity and Appointment of a Guardian of the Estate of an Incapacitated
Person.
- A petition to adjudicate a
person incompetent and to appoint a guardian of his/her estate shall set
forth:
- the name and
relationship of the petitioner to the alleged incompetent; if not
related, the nature of the petitioner’s interest;
- the age, marital
status, and domicile of the alleged incompetent; whether he/she is a
patient in a mental hospital; if so, the name and address of the
hospital, the date of his/her admission, and whether it is a state-owned
mental hospital or a Veterans' Administration hospital;
- the names and
addresses of the next of kin of the alleged incompetent;
- the gross value of
the alleged incompetent's estate, and net income from all sources, to the
extent that this information is known by petitioner;
- whether the alleged
incompetent was ever a member of the Armed Services of the United
States, or is receiving any benefits
from the United States Veterans' Administration or its successor;
- a general averment
of incompetency as defined in Chapter 55 of the Probate, Estates and
Fiduciaries Code;
- the name and address
of the proposed guardian, and what, if any, relationship he/she bears to
the alleged incompetent;
- an averment that the
proposed guardian has no interest adverse to the alleged incompetent;
- whether any other
court has ever assumed jurisdiction in any proceeding to determine the
competency of the alleged incompetent;
- that the alleged
incompetent has no guardian already appointed; and
- a prayer for a
citation, directed to the alleged incompetent, with notice thereof to
his/her next of kin and to such other persons as the court may direct, to
show cause why he/she should not be adjudged an incompetent and a
guardian of his/her estate appointed.
- The proposed guardian's
written consent shall be attached .
RULE 15. ADOPTIONS
Local Rule 15.4.1 Decree of
Involuntary Termination.
In all cases involving an involuntary termination of parental rights, the
Court shall enter a decree nisi. Unless exceptions are filed thereto within ten
(10) days of notice of filing the adjudication by any party in interest, the
Clerk shall confirm the decree absolutely without further order of Court. No
petition for adoption will be presented to the Court until a final decree has
been entered.
Local Rule 15.5.1 Information for
Certification of Adoption.
Contemporaneous with the filing of a Petition for Adoption, the information
required for a Certificate of Adoption shall be submitted to the Clerk upon a
form approved by the Clerk or upon a form approved by the Vital Statistics
Division of the Pennsylvania Department of Health.
Local Rule 15.5.2 Preliminary
Order and Decree of Adoption.
A petition for adoption shall have
attached thereto:
- a
proposed preliminary order in accordance with Local Rule 3.1:2; and
- a
proposed decree of adoption.