CHESTER COUNTY Orphans' Court No. 1506-9999 [36 Pa.B. 6377]
[Saturday, October 21, 2006]Order And Now, this 5th day of October, 2006, the following Rules of the Orphans' Court Division of the Court of Common Pleas of Chester County, Pennsylvania, are hereby adopted, effective December 1, 2006.
By the Court
PAULA FRANCISCO OTT,
President JudgeRULES OF ORPHANS' COURT PROCEDURE OF THE COURT OF COMMON PLEAS OF
CHESTER COUNTYJudges--Local Rules Integrated with Supreme Court Orphans' Court Rules Rule L1.2A. Index of Proceedings
The Clerk shall assign to each new matter a file number, starting with Number 1 at the beginning of each calendar year. The file number and the name of the matter shall be included in the caption of all papers filed in Court or in the Clerk's office.
Rule L1.2B. Arguments
In all cases, argument shall be heard at the conclusion of the hearing unless leave of Court is obtained prior thereto.
(1) Other matters for argument shall be heard as scheduled by the Court.
(2) Notice and Briefs--With respect to arguments other than those heard at the conclusion of a hearing, counsel obtaining the argument date shall give opposing counsel at least fifteen (15) days notice of said argument date and shall furnish opposing counsel with a brief at least fifteen (15) days prior to the argument. Reply briefs shall be furnished at least five (5) days prior to the argument. For failure to provide a brief at the proper time, sanctions may be fixed by the Court, including refusing to receive a brief and hear oral argument from the offending attorney. If either counsel fails to appear at the argument, the case may proceed ex parte.
Rule L1.2C. Attorney's Entry and Withdrawal of Appearance
(1) Every attorney participating in any proceeding shall enter an appearance by written order or by endorsement on papers filed.
(2) An attorney may not withdraw an appearance without leave of court unless another attorney has previously entered or another attorney is simultaneously entering an appearance on behalf of the party.
(3) Leave of court to withdraw appearance shall be sought by petition with notice as set forth under Rule 3.4 et sec.
Rule L1.2D. Trust Inter Vivos
The original trust instrument and any amendments thereto, shall be filed with the Clerk when the Court is first required to exercise its jurisdiction over the inter vivos trust. The instrument shall be indexed and recorded by the Clerk. Any revocation shall be likewise filed, indexed and recorded. The rules of court applicable to testamentary trusts shall apply to trusts inter vivos as far as appropriate. In the event such instrument has been filed with another court, a certified copy thereof will be accepted in lieu of the original. All original instruments lodged with the Clerk shall be microfilmed and then returned.
Rule L1.2E. Sureties
(1) Individual Sureties--Individuals proposed as sureties on bonds of fiduciaries shall take an affidavit on the printed form supplied by the Clerk, setting forth the facts required thereby. Such affidavit shall be filed together with the bond when filed, and shall be renewed annually thereafter so long as the bond shall remain in effect. A member of the Bar or any employee of this Court shall not act as surety in any proceeding in this Court, except by special leave of Court.
(2) Corporate Sureties--Every surety company duly authorized to do business in Pennsylvania may become surety on any bond or obligation required to be filed in this Court; provided that a currently effective certificate issued to it by the Insurance Department of the Commonwealth of Pennsylvania, evidencing such right, shall be on file with the Clerk, and that no bond shall be executed by any surety company after May 1 of any year until such a certificate issued after March 31 of the same year has been filed with the Clerk.
Rule L1.2F. Corporate Fiduciaries
(1) Corporations having fiduciary powers and authorized to do business in the Commonwealth may act as fiduciaries in matters pending in this Court; provided, however, that initially there shall be filed with the Clerk a copy of the certificate issued by the State Banking Department, the Comptroller of Currency, or the Federal Reserve Board, as the case may be, evidencing its right to exercise fiduciary powers, certified to be true and correct by an executive officer of the corporation. Thereafter, on or before the first day of May of each year such corporation shall file a statement, verified by the oath or affirmation of an executive officer thereof, that it continues to be qualified to act in such capacity.
(2) Except where required by statute or for special cause shown, a bond will not be required of an approved corporate fiduciary.
Rule L1.2G. Committee on Rules
(1) Whenever the Court deems it necessary, it shall appoint a rules committee for the Orphans' Court of Chester County, which shall consist of at least six attorneys who are members of the Bar of Chester County, the Orphans' Court Administrator, the Clerk of the Orphans' Court, and any other person(s) designated by the Court. The committee shall serve at the pleasure of the Court.
(2) It shall be the duty of said committee on rules to inform themselves as to legislation, as to procedural rules promulgated by the Supreme Court, and as to decisions of the courts in any way affecting the existing rules and, from time to time, to suggest to the Court such modifications or additions to the rules of said Court as in their judgment or the judgment of the majority thereof may be necessary or advisable.
Rule L1.2H. Notices of Order, Decree or Adjudication
In any Orphans' Court proceeding, the Clerk shall immediately give written notice by ordinary mail or personal delivery of the entry of any order, decree or adjudication to each party's attorney of record, or if unrepresented, to each party. Notice shall include a copy of the order, decree, or adjudication unless a bond is required, then no copy is provided until bond is posted. The clerk shall note in the docket the mailing or delivery of the required notice and documents.
Rule L1.2I. Reproduction of Papers
All pleadings and papers filed with either the Register or the Clerk shall be legible. Should any such pleading or paper not be sufficiently legible for mechanical reproduction, the Register or the Clerk may refuse to receive such pleading or paper or may require that a legible copy thereof be submitted for mechanical reproduction.
Construction and Application of Rules Rule L2.3A. Definitions
(1) ''Common Pleas'' means the Court of Common Pleas of Chester County.
(2) ''Code'' means the Probate, Estates and Fiduciaries Code (20 Pa.C.S. § 101 et seq.), as amended.
(3) ''Interested parties'' means persons having either a legal or a beneficial interest in the matter in question, unless the context indicates otherwise.
(4) ''Supreme Court Rules'' means Rules of the Orphans' Court promulgated by the Supreme Court of Pennsylvania.
Pleading and Practice Rule L3.1A. Pretrial Conference
In any action the Court, on its own motion or on motion of any party, may direct the attorneys for the parties to appear for a conference to consider:
(1) The simplification of the issues.
(2) The necessity or desirability of pleadings and/or amendments thereto.
(3) The possibility of obtaining admissions of fact and of documents which will avoid unnecessary proof.
(4) The limitation of the number of expert witnesses.
(5) The advisability of a preliminary reference of issues to a master for findings to be used as evidence when the trial is to be by jury.
(6) Such other matters as may aid in the disposition of the action.
Rule L3.2A. Pleadings
The pleadings in the Orphans' Court shall be limited to a petition, an answer, including new matter, a reply, preliminary objections and an answer to preliminary objections.
Rule L3.4A. Form, Additional Requirements
(1) Typing and Endorsement--Every petition, answer and reply shall be typewritten or printed, and shall be endorsed on the front upper left hand corner with the name, address, zip code, telephone number, and identification number of the individual attorney representing the party filing the pleading, or of the party if proceeding pro se.
(2) Signature and Verification--Every petition, answer and reply shall be signed by the parties and verified by one or more of them. If this is impracticable, it may be signed and verified by someone other than counsel familiar with the facts, in which case the reason for the failure of the parties to sign shall be set forth.
(3) Decree--The decree shall have a caption and be attached to the face of the petition.
(4) Preliminary Decree--A Petition shall be accompanied by a separate Preliminary Decree for the Court's use either setting a hearing date in those instances where there exists jurisdiction or issuing a citation returnable with hearing where the Court has not yet taken jurisdiction.
(5) Paper--Every petition, answer and reply shall be stated upon paper 8 1/2 inches by 11 inches in size, the paper to be fastened together securely at the top and numbered consecutively at the bottom.
(6) Courtesy copy--Parties shall not send courtesy copies of pleading to the Court without the specific request of the Court for same.
Notice Rule L5.1A. Method. Legal Publication
The Chester County Law Reporter shall be the legal periodical for the publication of notices whenever publication in a legal periodical is required by Act of Assembly, or by rule or order of Court.
Rule L5.1B. Method. Public Sale of Real Property
Notice of the public sale of real property shall be given:
(1) By advertisement once a week for three (3) successive weeks in the Chester County Law Reporter and in one other newspaper of general circulation in Chester County;
(2) By posting a notice on the premises;
(3) By personal notice or registered or certified mail to all parties in interest of the time and place of the proposed sale at least ten days prior thereto; and,
(4) By such other notice as the Court may by special order direct.
Rule L5.1C. Method. Private Sale of Real Property
Notice of the private sale of real property shall be given in such manner as provided by a rule adopted by the Supreme Court or by an Act of Assembly, or by general rule or special order of this Court.
Rule L5.1D. Written Notice
Written notice, served personally on an attorney of record, to the person for the time being in charge of the attorney's office, or by mail addressed to the attorney's office, shall be notice to the party whom the attorney represents, except where personal service on the party is specifically required.
Rule L5.4A. Return of Notice. Additional Requirement
(1) Copy of Notice--A copy of all petitions, notices, preliminary decrees or other papers served shall be attached to the return of notice.
(2) Personal Service--Return of personal service of notice shall set forth the date, time, place and manner of service and that a true and correct copy of the notice was handed to the person served.
(3) Registered or Certified Mail--Return of notice by registered or certified mail shall state the date and place of mailing and shall include the return receipt, or a photostatic copy thereof. When the person who gives notice by registered or certified mail has personal knowledge, or has cause to believe, that such notice was not received by the person to be notified, the person giving notice shall so state in the return. When the address of the person given notice by registered or certified mail is in a country other than the United States of America, a statement that the notice was so mailed to that person at the designated address shall be sufficient unless otherwise ordered.
Accounts and Distribution Rule L6.1A. Form. Additional Requirements
(1) Form in General--Accounts shall be prepared in substantial conformity with forms approved by the Supreme Court of Pennsylvania.
(2) Paper--Accounts shall be stated upon paper 8 1/2 inches by 11 inches in size, the pages to be fastened together securely at the top, not stapled or sealed, and numbered consecutively at the bottom.
(3) An account shall have attached thereto a petition for adjudication and statement of proposed distribution.
(4) Accounts must conform to any additional requirements shown on accounts checklists which are available at the Office of the Clerk of the Orphans' Court and on its website at www.chesco.org/wills.
(5) Accounts not conforming to all requirements by the call of the audit list will be deferred.
Rule L6.1B. Execution
(1) Signing--Accounts shall be signed by ALL fiduciaries stating them. In the case where the fiduciary has died, the account shall be executed by her or his personal representative, or counsel shall notify the Court that no personal representative has been appointed.
(2) Affidavit--Accounts shall have attached to the end thereof the affidavit of one or more of the fiduciaries joining in the account.
(3) Certification by Attorney--At the end of each account there shall appear a certification by the attorney representing the accountant, that the attorney has reviewed the account and finds it to be in conformity with these Rules.
Rule L6.1C. Appointed Estates
Assets appointed by the donee of a testamentary power and which must be accounted for by the fiduciary of the donee, shall be identified and shall be shown in a separate schedule.
Rule L6.1D. Annexed Accounts
A guardian, personal representative or trustee who has received property from a guardian, personal representative or trustee in distribution of another estate or trust may annex a copy of the account of said estate or trust to his or her account. Notice must be given to all interested parties of the annexation.
Rule L6.3A. Contents of Notice
Notices shall comply with Supreme Court Rule 6.3 and the following requirements:
(1) Written notice of (i) the filing of the account and petition for adjudication and (ii) the time and place of audit shall be given to all parties in interest who are entitled to notice of the filing of the account as set forth in Rule 6.3.
(2) In those instances where any claim or interest of the party being notified is contested or will not be paid in full, the aforesaid written notice shall so state and shall further state that a written claim or written objections must be filed at or prior to the audit by the party who desires to pursue any such claim or interest.
(3) In those instances where there exists any fairly disputable issue or question, including a question of interpretation, known to or reasonably ascertainable by the accountant or the accountant's counsel; the aforesaid written notice to all parties in interest affected thereby shall (i) state the issue and the conclusion of the accountant with regard thereto, and (ii) have attached thereto a copy of the instrument or material parts thereof containing any provision which forms the basis of the dispute or question, and (iii) state that if the person notified does not agree with the accountant's conclusion, that person must, at or prior to the audit, file a written objection to the petition for adjudication, under penalty for failure to object that the Court will assume that said person agrees with the accountant's conclusion.
Rule L6.3B. Enclosures
(1) A recipient of a pecuniary bequest, specific legacy or devise or demonstrative legacy shall be given notice of the provision pertaining to such beneficiary.
(2) All other beneficiaries or heirs shall be given a copy of the account, the petition for adjudication and a statement of proposed distribution, the will or trust instrument, or relevant portions thereof, unless counsel or the accountant certifies that a copy was previously furnished, and the inventory.
(3) No copy of any of the above need be given anyone who has executed a satisfaction of award or a written waiver of their right to receive such information.
Rule L6.3C. Time of Notices
Notices shall be mailed no later than ten days after filing an account. Notices mailed prior to filing an account shall state the date upon which the account is expected to be filed.
Rule L6.3D. Copy of Notice
Prior to the audit, the accountant shall cause to be filed an affidavit indicating the form of notice sent to the parties in interest and to whom such notice was sent. The certificate from the Attorney General shall be attached if notice concerning a charity is required by Supreme Court Rule 5.5.
Rule L6.3E. Special Requirements for Notice
If notice is required to be given to a personal representative or fiduciary, such notice shall also be given to the beneficiaries of the trust or estate. If notice is required to be given to a minor of whom no guardian or guardian ad litem has been appointed, it shall be sufficient to give notice to the minor's parent, or to the minor's attorney, if any.
Rule L6.4A. Audits
Audit List-When Called--The audit list will be called on the first Wednesday of every month except January and July. There will be no audit list in January and July. Each audit list shall include continued accounts and new accounts eligible for audit. No attorney need be present unless the attorney desires to file written objections or a claim.
Rule L6.4B. For a Particular Audit
Accounts to appear on a particular list must be filed not later than 4:30 p.m. on the 4th Wednesday preceding the session of Court when the audit list will be called, except when the day falls on a holiday, in which event accounts must be filed as per the Court calendar for that year.
Rule L6.9A. Petition for Adjudication and Statement of Proposed Distribution
(1) Recital of Facts--At the time of filing an account, the accountant shall attach thereto a petition for adjudication setting forth all facts necessary to enter a proper decree.
(2) Form of Petition--The petition for adjudication shall be on the form provided by the Clerk or typewritten in conformity therewith. The statement of proposed distribution shall be the concluding paragraph of the petition for adjudication. The petition for adjudication shall be signed by each accountant and be sworn to, affirmed by, or verified by at least one of them.
(3) Persons filing accounts for audit shall submit, with the Petition for Adjudication, all the required supporting documents securely fastened at the top, not stapled or sealed, in the order shown in checklists which can be obtained from the Clerk of the Orphans' Court Division. Where the account indicates that any balances are to be awarded to an existing trust, or that there has been a transfer of funds between the probate and the trust estates, a copy of the trust instrument, and amendments thereto, certified by counsel to be correct, shall be attached.
Rule L6.9B. Settlement of Small Estates
(1) Petitions for distribution of small estates under Section 3102 of the Code, shall set forth:
(a) The name and address of the petitioner and the relationship of the petitioner to the decedent;
(b) The name, date of birth and domicile of the decedent, whether the decedent died intestate, the dates of the probate of the will and of the grant of letters, if any, and whether the personal representative has been required to give bond and in what amount;
(c) The names and relationships of all beneficiaries entitled to any part of the estate under the will or intestate laws, a brief description of their respective interests, whether any of them has received or retained any property of the decedent by payment of wages or similar items under Section 3101 of said Code or otherwise, and whether any of them are minors, incapacitated persons, or deceased, with the names of their fiduciaries, if any;
(d) The person or persons, if any, entitled to the family exemption and, if a claim therefor is made in this petition, any additional facts necessary to establish the prima facie right thereto, as required by Rule 12.1;
(e) An inventory of the real and personal estate of the decedent, with values ascribed to each item, either incorporated in the petition or attached as an exhibit;
(f) A list showing the status of the inheritance tax;
(g) An averment showing the status of the inheritance tax;
(h) That ten days written notice of intention to present the petition has been given to any unpaid beneficiary, heir or claimant who has not joined in the petition, or to the attorney general, if the decedent's heirs are unknown. Notice shall be given in accordance with Rule 5.1; and
(i) A prayer for distribution of the personal property to those entitled and, in appropriate cases, for the discharge of the personal representative.
(2) There shall be attached to the petition the following exhibits:
(a) The original of the decedent's will, if it has not been probated, or a copy of the will, if it has been probated;
(b) Joinders of unpaid beneficiaries, heirs and claimants insofar as they are obtainable;
(c) An itemized list of disbursements made prior to the filing of the petition, indicating the payee and whether the disbursements were in payment of administration expenses, preferred or ordinary debts, items of distribution or the family exemption;
(d) A copy of the inheritance tax return and, if applicable, proof of payment.
(e) A copy of any notice given.
(3) No appraisement shall be required unless ordered by the Court.
A sample Small Estate Settlement Petition is available at the Office of the Clerk of the Orphans' Court and on its website at www.chesco.org/wills
Rule L6.10A. Form of Objections
Objections to accounts, petitions for adjudication and statements of proposed distribution shall be in writing, numbered consecutively, and signed by the objector or the objector's attorney. Each objection shall:
(1) Be specific as to description and amount;
(2) Raise but one issue of law and fact, but if there are several objections to items included in or omitted from the account or schedule of distribution relating to the same issue, all such objections shall be included in the same objection; and
(3) Set forth briefly the reason or reasons in support thereof.
Rule L6.10B. Objections. Filing and Service of Copy
(1) Time of Filing--Objections may be filed with the Clerk at, or prior to the session of court when the account objected to is listed for audit. No objection shall be filed thereafter without leave of Court.
(2) Service of Copy--After filing, a copy of the objections shall be served on accountant's attorney and other parties of record within five days of the date of filing.
Rule L6.10C. Disposing of Objections and Claims
In those cases in which a hearing is requested, the Court may fix a day for hearing or argument.
Rule L6.11A. Filing Receipt and Releases
When any distribution is made pursuant to Supreme Court Rule 6.11(b), a fiduciary may file with the Clerk those documents which evidence the agreement pursuant to which distribution is made and the receipt thereof.
Rule L6.11B. Schedules of Distribution
(1) Filing--The Court, when it appears advisable or when requested, will direct the attorney for accountant to prepare and file a schedule of distribution. Schedules shall be signed by all accountants and certified by the attorney for the accountant(s) to be correct and in conformity with the adjudication, and shall be filed with the Clerk.
(2) Additional Receipts and Disbursements--Receipts and disbursements since the date to which the account was stated shall be set forth in the schedule of distribution.
(3) Objections--Objections to unconfirmed schedules of distribution shall be filed with the Clerk, and must be filed not later than the twentieth day after the schedule was filed. Such objection may raise questions relating only to the schedule itself, and shall in no event raise questions which actually were or else could have been raised previously by claims, or by objections to the account or exceptions to the adjudication.
(4) Confirmation--If no objections are filed within twenty days after filing the schedule, it will be approved. Schedules approved in writing by all parties in interest will be approved on the day filed. Thereupon the accountant shall have authority to make necessary assignments and transfers of any securities awarded in kind, and the schedule will be attached to and become part of the adjudication.
Rule L6.11C. Schedules of Distribution Notice of Filing
(1) When Notice Given--Notice of filing the schedule of distribution shall be given to all parties in interest who have not filed their written approval of the schedule at the time of filing of the schedule, and shall include a copy of the schedule of distribution. The notice shall state that objections to the schedule must be filed within twenty days after the schedule is filed.
(2) Time and Method of Notice--Such notice shall be given before the schedule is filed, by letter addressed to the last known address of the party in interest or said party's attorney.
(3) Return of Notice--It shall be a sufficient return to such notice for the attorney or accountant to certify on the schedule that due notice of the filing thereof was given as required by this rule, and to attach a copy of the notice given.
Rule L6.11D. Objections to Schedules of Distribution--Notice of Filing, Time, Method, and Return
(1) To Whom Given--Notice of filing of objections to the schedule of distribution shall be given to the accountant and to all parties in interest affected thereby or their attorneys.
(2) Time and Method of Notice--Written notice shall be given no later than the day of the filing of the objections to the schedule by letter addressed to the last known address of accountant and all other parties in interest affected thereby or their attorneys. A copy of the objections shall be included with the notice to the accountant or the accountant's attorney.
(3) Return of Notice--At the time of filing of the objections, the attorney for the objector shall file a written certification that due notice of the filing thereof was given as required by these rules.
Rule L6.11E. Distribution of Real Estate
(1) When No Partition or Allotment Required or When Distributees Agree to Schedule--Schedules of distribution shall include separate awards of real estate to the parties entitled thereto, whether individually, or, where the circumstances require, in undivided interests. The real estate so awarded shall be identified by reference to the adjudication in the same detail and with the same particularity as is commonly required to be included in deeds and shall recite how the title was acquired by decedent. A copy of the last recorded deed(s), certified by the Recorder of Deeds, shall also be included.
(2) Partition or Allotment of Real Estate Requested by Accountant or a Party in Interest--Whenever partition or allotment of real estate is requested by the accountant or a party in interest, the request shall be made prior to or at the audit, and the Court shall make such order, including a direction to submit an information certificate, issued by an attorney or a responsible title insurance company, showing, the current state of the title, if required, provisions for owelty, if any, the preparation of a schedule of distribution, notice to the parties, and fixing the dates of further hearings, as may be necessary to protect all parties in interest.
(3) Certificate of Award of Real Estate--A Certificate of Award of Real Estate shall be prepared by the attorney for the accountant and submitted to the Clerk for execution upon confirmation of the schedule of distribution. A Sample Certificate is available at the Office of the Clerk of the Orphans' Court and on its website at www.chesco.org/wills.
Exceptions Rule L7.1A. Exceptions to Decrees, Generally
(1) Exceptions shall be the sole means of challenging an Adjudication, Order, Decree, or other Ruling that terminates a claim or affects a person's status in the action. If no exceptions are filed within twenty days of the Adjudication, etc., it shall become final.
(2) A party taking exceptions shall:
(a) file the original with the Clerk of the Orphans' Court;
(b) serve copies upon all parties, or their counsel, and the trial judge and,
(c) file an affidavit of service with the Clerk of the Orphans' Court.
Rule L7.1B. Form of Exceptions
Exceptions shall be in writing, numbered consecutively and signed by the exceptant or exceptant's attorney. Each exception shall:
(1) be specific as to description and amount;
(2) raise but one issue of law or fact; and,
(3) set forth briefly the reason or reasons in support thereof.
Rule L7.1C. Disposition of Exceptions
All exceptions shall be decided by the trial judge who may request argument to be scheduled by the Orphans' Court Administrator. Argument shall be heard by the trial judge unless the trial judge orders that the matter be heard by a court en banc of which the trial judge shall be a member. If the trial judge for any reason cannot decide the matter, another judge shall be designated to act. No more than three judges shall constitute the court en banc.
Auditors and Masters Rule L8.1A. Notice
Auditors and masters shall give at least ten days notice of hearings held by them to all parties interested or to their attorneys of record in the manner provided in Supreme Court Rule 5.1, and local rules related thereto. 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 each of such succeeding hearings.
Rule L8.6A. Notice and Objections
An auditor or master shall give notice of the filing of the report by sending a copy of the report to all parties of record. Any party in interest shall have the right to file objections to such report within a period of twenty days of the filing of the report. If objections are filed, either party may request that they be listed for argument.
Rule L8.7A. Decree
If no objections are filed within twenty days of the filing thereof, the Court may enter a decree confirming the auditor's report or adopting the master's report.
Register of Wills Rule L10.1A. Renunciations
Any renunciations that are executed outside of the Office of the Register of Wills must be executed in the presence of a Notary Public.
Rule L10.2A. Filing of Notice of Appeal
(1) Filing with the Register of Wills. A person or entity desiring to take an appeal from the judicial acts or proceedings of the Register of Wills, shall file a Notice of Appeal with the Register of Wills, specifying the issues on which it is based, and stating whether or not there are disputed issues of fact that the person or entity requests be submitted to a jury, and setting forth the names of all interested parties and the necessary jurisdictional facts.
(2) Transmission to Orphans' Court. When a Notice of Appeal has been filed, the Register shall transmit the record to the Clerk of the Orphans' Court.
Rule L10.2B. Filing of Appeal and Issuance of Citation
The appellant shall file a petition for citation sur appeal with the Clerk of the Orphans' Court and request that the Court issue a citation to show cause why the appeal should not be sustained and the decision complained of set aside. The appeal shall have attached to it a preliminary decree, which authorizes the issuance of a citation and sets a return date for the citation, which shall be determined and set by the Orphans' Court Administrator. The Citation shall be made returnable no sooner than twenty days after the date of issuance, unless the Court, orders that it be returned sooner.
Rule L10.2C. Service of Appeal and Citation
The appellant shall serve the citation and a copy of the appeal upon all interested parties within five (5) days of receiving the citation. Service upon parties already of record shall be in accordance with Pa.R.C.P. 227.1(f). Service upon parties not already of record shall be in accordance with Pa.R.C.P. 400.
Special Petitions Rule L12.1A. Local Procedure
(1) Claiming Family Exemption--The procedure for claiming the family exemption shall be in accordance with 20 Pa.C.S.A. § 3121 through 3126. All pleadings shall be prepared in accordance with Supreme Court Rule 3 et sec.
(2) Appraising Property--Those matters required to be prescribed by local rules in Supreme Court Rule 12.1(b) shall be by special order in each case.
Rule L12.2A. Local Procedure
Those matters required to be prescribed by local rules in Supreme Court Rule 12.2 (b) shall be by special order in each case.
Rule L12.3A. Extension of Time
An extension of time in which the surviving spouse may file an election to take against a will shall be by special order in each case.
Rule L12.4A. Filing of Report
A guardian ad litem or trustee ad litem shall file a report within thirty (30) days of appointment, unless the time is otherwise fixed by the Court.
Rule L12.5A. Appearance of Minor
The minor shall be present at the hearing unless specifically excused by the court.
Rule L12.5B. Restricted Accounts
In lieu of the appointment of a guardian, the Court may authorize the deposit of funds of a minor pursuant to the provisions of Section 5103 of the Code.
Rule L12.5C. Certificate of Appointments; Security
If bond is required of a guardian, the clerk shall not issue the certificate of the guardian's appointment until the bond has been filed. Where the guardian is appointed for several minor children of the same parents, one bond may be filed to cover the several estates.
Rule L12.5D. Allowances
When a petition is necessary for an allowance from a minor's estate, the petition shall set forth the:
(1) Manner of the guardian's appointment and qualification, and the dates thereof;
(2) Age and residence of the minor, whether the minor's parents are living, the name of the person with whom the minor resides, the age of the minor's spouse and children, if any;
(3) Value of the minor's estate, real and personal, and the minor's net annual income;
(4) Circumstances of the minor, whether employed or attending school; if the minor's parent(s), or other person charged with the duty of supporting the minor, is living, the financial condition and income of such person and why that person is not discharging his or her duty to support the minor; and whether there is adequate provision for the support and education of the minor, the minor's spouse and children;
(5) Date and amount of any previous allowance by the Court; and
(6) Financial requirements of the minor and the minor's family unit, in detail, and the circumstances making such allowance necessary.
Rule L12.6A. Exhibits
The following additional exhibits shall be annexed to the petition:
(1) Copy of the trust instrument.
(2) Any consent or joinders of parties in interest.
Rule L12.7A. Exhibits
Written consent of the surety, if any, shall be attached to the petition, and orders to satisfy awards from all other parties shall be submitted with the petition.
Rule L12.7B. Discharge of Personal Representative Under Section 3531 of the Code
A petition with account annexed under Section 3531 of the Code shall conform to the extent practicable with the requirements of a petition for the settlement of a small estate under Section 3102 of the Code as set out in Rule L6.9B of the Chester County Orphans' Court Rules.
Rule L12.9A. Public Sale, Contents of Petition, Additional Requirements
(1) Personal Representative--A petition by a personal representative to sell real property at public sale, under Section 3353 of the Code shall also set forth in separate paragraphs:
(a) The name, residence and date of death of the decedent, whether the decedent died testate or intestate, and the date of the grant of letters;
(b) That the personal representative is not otherwise authorized to sell by the Code; or 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;
(c) Whether an inventory and appraisement has been filed, the total value of the property shown therein, and the value at which the real property to be sold was included therein;
(d) If the personal representative entered bond with the Register, the name of the surety and the amount of such bond;
(e) The names and relationships of all parties in interest, a brief description of their respective interests, whether any of them are deceased, minors, or incapacitated persons, and if so, the names and the record of the appointment of their fiduciaries;
(f) A full description of the real property to be sold, the improvements thereon, by whom it is occupied, its rental value and current tax assessment; and
(g) Sufficient facts to enable the Court to determine that the sale is desirable for the proper administration and distribution of the estate.
(2) Trustee--A petition by a trustee to sell real property at public sale, under Section 2133.16 of the Code shall also set forth in separate paragraphs:
(a) How title was acquired, stating the date and place of probate of the will or recording of the deed;
(b) A recital of the relevant provisions of the will or deed pertaining to the real property to be sold, and of the history of the trust;
(c) The names and relationships of all parties in interest, a brief description of their respective interests, and whether any of them are deceased, minors, or incapacitated persons, and if so, the names and the record of the appointment of their fiduciaries;
(d) The improvements on the property, by whom it is occupied, its rental value and current tax assessment;
(e) That the trustee is not otherwise authorized to sell by the 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
(f) Sufficient facts to enable the Court to determine that the proposed sale is for the best interests of the trust.
(3) Guardian--A petition by a guardian to sell real property at public sale, under Section 5153.1 of the Code shall also set forth in separate paragraphs:
(a) The age of the ward;
(b) The names of the ward's next of kin and the notice given them of the presentation of the petition. When there are no known next of kin who are sui juris to whom notice may be given, public notice in accordance with Rule L5.1B, must be given and proofs thereof must be attached to the petition as an exhibit;
(c) How title was acquired, stating the date and place of probate of the will or recording of the deed;
(d) A recital of the provisions of the will or deed relating to the real property to be sold;
(e) The nature and extent of the interest of the ward, and of other persons in the real property;
(f) The improvements on the property, by whom it is occupied, its rental value and current tax assessment; and
(g) Sufficient facts to enable the Court to determine that the proposed sale will be for the best interest of the ward.
Rule L12.9B. Exhibits
The following exhibits shall be attached to a petition by a personal representative, trustee, or guardian to sell real property at public sale:
(1) A copy of the will, deed or decree by which the fiduciary was appointed;
(2) Any consents or joinders of parties in interest, and the names and a copy of the notice which has been given to those parties who do not consent to join;
(3) Consent by any mortgagee whose lien would otherwise not be discharged by the sale, or, if not attached, the reason therefor; and
(4) An affidavit as to value by one real estate appraiser.
Rule L12.9C. Decree
Upon presentation of any of the foregoing petitions, the Court, if satisfied that public sale is appropriate, shall enter a Decree fixing the time within which public sale shall be held and further fixing the time thereafter within which the return of sale shall be made to the Court.
Rule L12.9D. Notice and Return
(1) After the allowance of a petition for public sale of real property, notice of the public sale shall be given as provided in Rule L5.1B.
(2) Returns of public sale of real property for the purpose of an approval or confirmation by the Court shall be in the form of an affidavit, which shall set forth:
(a) The information required by Rule L5.4A and the advertisement made;
(b) The name and address of the purchaser and that said purchaser was the highest bidder;
(c) As an attachment, a complete copy of the written agreement of sale: and,
(d) Whether any exceptions to the confirmation have been filed.
Rule L12.9E. Security
On the return day of the sale, the Court, in the decree approving or confirming the public sale, will fix the amount of bond or additional security which the personal representative, trustee or guardian shall be required to enter, or will excuse the fiduciary from entering additional security.
Rule L12.9F. Petition to Fix or Waive Additional Security, Personal Representative, Trustee
(1) Form of Petition--In a sale, whether public or private, of real estate by a personal representative or trustee without benefit of an order of court directing or authorizing such sale, where the personal representative or trustee is required to give bond as such personal representative or trustee, he or she shall, before the proceeds of the sale are paid to the personal representative or trustee by the purchaser, present a petition to the Court setting forth:
(a) The date of death of the decedent;
(b) The date of the petitioner's appointment;
(c) The amount of the bond or bonds filed by the petitioner and the date of such filing and the name or names of the petitioner's surety;
(d) The total valuation of the personal estate as shown in the inventory and appraisement, if any, and the total proceeds of any real estate sold previously;
(e) A short description of the real property sold, the name of the purchaser and the amount of the consideration to be paid;
(f) A prayer for an order fixing the amount of additional security or for an order excusing the petitioner(s) from filing additional security, as the case may be; and;
(g) In those cases in which waiver of additional security is sought, the consent of the parties in interest shall be attached and a statement as will justify the waiver of the additional security shall be included, and said statement shall include, but not be limited to, an averment that there are no creditors whose claims shall be jeopardized by the sale and that all taxes have been paid.
(2) Surety on Additional Bond-The surety on any additional bond except for cause shown shall be the same as on the original bond.
Rule L12.10A. Exhibits
The following exhibits shall be attached to a petition by a personal representative, trustee or guardian to sell real estate at private sale:
(1) a copy of the will, deed or decree by which the fiduciary was appointed;
(2) any consents or joinders of parties in interest, and the names and a copy of the notice which has been given to those parties who do not consent or join, such notice containing the date of the presentation of the petition to the Court;
(3) consent by any mortgagee whose lien would otherwise not be discharged by the sale or, if not attached, the reason therefor; and
(4) a copy of the agreement of sale.
Rule L12.10B. Security
The Court, in the decree approving or confirming the private sale, will fix the amount of bond or additional security which the personal representative, trustee or guardian shall be required to enter, or will excuse the fiduciary from entering bond or additional security.
Rule L12.11A. Mortgage or Lease of Real Property, Additional Requirements
(1) Contents of Petition--A petition to mortgage or lease real property by a personal representative, trustee or guardian, shall conform as closely as practicable to the requirements of these Rules 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 mortgage loan; and shall set forth sufficient facts to enable the Court to determine whether the proposed mortgage or lease should be approved.
(2) Exhibits--The following exhibits shall be attached to the petition where applicable:
(a) a copy of the will, deed or decree by which the fiduciary was appointed;
(b) consents to the mortgage or lease signed by those parties in interest who do not join in the petition, and the names and a copy of the notice which has been given to those parties who do not consent;
(c) a statement by the proposed mortgagee agreeing to grant the mortgage loan; and,
(d) an appraisal by a real estate broker of the real property on which the proposed mortgage is to be secured.
(3) Security--The amount of the security or additional security required to be entered, or the waiver thereof, will be determined by the Court in its decree approving the mortgage.
Guardianship of Incapacitated Persons Rule L14.1A Preliminary Decree
A Preliminary Decree for the purpose of issuing a citation and setting a hearing date shall be attached to each petition. A suggested form of preliminary decree is available as part of the forms packet which can be obtained in the Office of the Clerk of the Orphans' Court and on its website cited above.
Rule L14.1B. Separate Accounts
The account of a guardian for an incapacitated person and the account of a deceased incapacitated person's estate shall be separately stated. Where the guardian and the personal representative are the same, the accounts of the guardian and the personal representative may be filed in one proceeding.
Rule L14.1C. Guardian's Accounts
Guardian's accounts filed for audit shall conform with Rules 6.1 through 6.11 and the Chester County Orphans' Court Rules regarding accounts and distribution which accompany them.
Rule L14.1D. Guardian's Accounts--Additional Requirements
Guardian's accounts shall have attached thereto as an exhibit a copy of the guardian's inventory and a copy of the order or decree appointing the guardian. If the accounting is occasioned by the death of the incapacitated person, the account shall have attached thereto a copy of the will if the incapacitated person died testate, and a copy of the appointment of the personal representative of the deceased incapacitated person's estate.
Rule L14.1E. Notice of Filing of Account
Notice of the filing of the account shall be given as required by Rule 6.3 and the local rules adopted there under and, in all cases, notice shall be given to individuals entitled to notice under 20 Pa.C.S.A. § 5511.
Rule L14.2A. Petition, additional requirement
The Petition shall include an allegation as to whether the alleged incapacitated person is known to have appointed an attorney-in-fact, trustee or agent, and if so, his identity and address. The proposed guardian's written consent to the appointment shall be attached to the petition.
Rule L14.2B. Testamentary Writings
A person who possesses a testamentary writing of an incapacitated person shall file the original or a certified copy of each writing with the Clerk of Orphans' Court at the time of filing of the guardian's inventory. If a certified copy is filed, the person shall also present the original to the Clerk of the Orphans' Court for verification. The documents shall be impounded until further order of the Court.
Rule L14.5A. Service and Notice
Personal service shall be made on the alleged incapacitated person, and notice of the petition and hearing shall be given in accordance with 20 Pa.C.S.A. § 5511(a). Notice shall also be given to any attorney-in-fact, trustee or agent.
Rule L14.5B. Proof of Service and Notice
An Affidavit of service of citation with notice and petition shall be filed in the Office of the Clerk of the Orphans' Court at least seven days before the date of the hearing. The affidavit of service shall be made in the suggested form available in the Office of the Clerk of the Orphans' Court or on its website cited above.
RULE 15. ADOPTIONS
A packet of suggested forms and procedures is available at the Office of the Clerk of the Orphans' Court and on its website at www.chesco.org/wills.
Rule L15.1A. Procedure
(1) In all pleadings relating to the termination of parent-child relationships and adoptions, all petitions, reports, etc., shall be filed with the Office of the Clerk of the Orphans' Court. They shall substantially conform to the suggested forms available at the Office of the Clerk of the Orphans' Court and on its website. Separate pleadings shall be filed for each proposed adoptee.
(2) When the first pleading is filed in a case, the case shall be given a number, and thereafter all papers filed in that case shall bear that number. The case shall be referred to at all times by number and the adoptee's initials.
(3) When parental rights are sought to be terminated, a separate petition for ending parental rights shall be filed for each parent. (Involuntary Termination, Confirm Consent or Voluntary Relinquishment.)
(4) All petitions shall have a preliminary decree attached for the purpose of setting a hearing date and shall specify the names and addresses of the persons to whom notice is to be given. The notice pursuant to 23 Pa.C.S. § 2513(b) shall be attached to each petition. Hearing dates shall be scheduled by the Orphans' Court Administrator and shall be not less than ten days after the service of the petition.
(5) A motion for the appointment of counsel for the child whose parent's rights may be terminated and an order relating thereto shall be presented with each petition for involuntary termination of parental rights. Petitioner shall deposit the amount provided by 23 Pa.C.S.A § 2312(b)(2) toward counsel fees with the Office of the Clerk of the Orphans' Court at the time of filing the petition. No deposit shall be required for terminations involving Chester County Department of Children, Youth and Families.
(6) In every proceeding where the rules or statutes require that the adoptee's birth certificate be exhibited to the court, the original birth certificate shall show the names of the mother and father (if that information is recorded; if the name of the father is not recorded, but there is a claim of paternity under 23 Pa.C.S. § 5103(b), that information shall be provided).
(7) The Report of Vital Statistics Form (H105) shall be filed with each petition for adoption as a separate unattached document.
Rule L15.2A. Appearance of Intermediary
The court will require the appearance of representatives of agencies or individuals who have acted as the intermediary unless excused by the court.
Rule L15.3A. Appearance of Intermediary
The court will require the appearance of representatives of agencies or individuals who have acted as the intermediary unless excused by the court.
Rule L15.4A. Involuntary Termination of Parental Rights
(1) Citation--When a petition for involuntary termination is filed, the Clerk of Orphans' Court shall issue to the parent or parents whose rights may be terminated a citation to show cause why the prayer of the petition should not be granted. The citation shall be made returnable no sooner than twenty days after the date of issuance, unless the court orders that it be returned sooner.
(2) Notification by the Clerk of the Orphans' Court--The Clerk of the Orphans' Court shall promptly mail a certified copy of all decrees terminating parental rights to the person whose rights have been terminated to their last known address by first class mail or to their attorney of record, and enter the mailing of such notice on the docket. For this purpose, the petitioner or the attorney for petitioner shall provide the clerk with the last known address of the person whose rights have been terminated.
Rule L15.5A. Adoption
(1) Reports and Investigation
(a) In all cases in which the Chester County Department of Children, Youth and Families is the intermediary, the court may rely on the intermediary's report and will not require an investigation by a court appointed investigator. In all other cases, an investigation shall be conducted by a court appointed investigator who, in the investigator's discretion, may rely upon the report of a voluntary child care agency acting as intermediary.
(b) If the Report of the intermediary or the investigator is not filed within 6 months of the Report of Intention to Adopt (or appointment of investigator, in the case of the investigator), the Court, on motion of any party, may issue a rule upon the intermediary or investigator, as the case may be, to appear and show cause why the report in question has not been filed.
(c) If there is no intermediary named in the Report of Intention to Adopt, the attorney shall attach an affidavit to the report which shall explain in detail how the persons filing the report received possession of the adoptee from the birth parent(s), who arranged for the exchange of possession of the adoptee, how the persons filing the report received knowledge of the existence of the availability of the adoptee for potential adoption, and any other information the attorney may have regarding the relationship of the persons filing the report to the birth parent(s) and how the adoption was arranged.
(2) Disclosure of Fees and Costs of Intermediary
(a) All intermediaries other than Chester County Department of Children, Youth and Families shall submit a full itemized disclosure of fees and charges with the Report of Intention to Adopt. No investigator will be appointed and no hearings will be scheduled until the fees have been found by the Court to be in compliance with 23 Pa.C.S.A. § 2533(d).
(b) Counsel shall certify on the report offered into evidence that the adopting parent(s) have been given a copy of the Report and fees pursuant to 23 Pa.C.S.A. § 2533(d).
(3) Required Submissions
In the course of causing an investigation to be made pursuant to 23 Pa.C.S.A. § 2535(a), an agency or person designated by the Court to conduct such investigation, or the agency which placed the child, shall require prospective adoptive parents to submit the following information:
(a) Pursuant to 18 Pa.C.S.A. § 9101, et seq. (relating to criminal history record information), a report of a criminal history record information from the Pennsylvania State Police or a statement from the Pennsylvania State Police that the State Police central repository contains no such information relating to that person. Such criminal record history information shall be limited to that which is disseminated pursuant to 18 Pa.C.S.A. § 9121(b)(2) (relating to general regulations).
(b) A certification from the Department of Public Welfare as to whether the applicant is named in the central register as the perpetrator of a founded or indicated report of child abuse.
Prospective adoptive parents who are not residents of Pennsylvania shall submit an equivalent report and certificate from the State Police Department of the State of which they are residents
The certificate required by subsection (b) above shall be valid within 24 months prior to the placement of the child by the agency , or in the case of a private placement, the certificate shall be valid within 24 months of the hearing before the court.
Rule L15.5B. Adoption Investigation Fee
A person required to file a Report of Intention to adopt in accordance with 23 Pa.C.S.A. §§ 2531-2532 shall, when filing the report, pay an adoption investigation fee to the Office of the Clerk of the Orphans' Court, in such amount as shall be established by the court from time to time.
Rule L15.5C. Disclosure of Fees and Costs
Prior to scheduling a hearing on the petition for adoption, counsel for petitioner(s) shall file a signed certification of fees, costs and expenses as required by Rule 15.5(d). This certification shall be reviewed by the court, and if the court considers the amount to be unreasonable, the court may request that counsel provide an itemized billing statement.
Rule L15.6A. Notice; Method and Time
(1) All notices required and not obtainable in accordance with Rule 15.6 and the local rules promulgated thereunder shall be served in accordance with Pa.R.C.P. 430.
(2) If notice by publication is ordered by the court pursuant to Pa.R.C.P. 430, the publication shall also appear in a newspaper of general circulation in the area of the last known address of the birth parent or where the petitioner believes the birth parent may currently be residing unless otherwise ordered by the court.
(3) Petitioner(s) or petitioner(s)' counsel is responsible for seeing that notice is provided in accordance with the law for all persons entitled to notice. An affidavit of service shall be filed in all matters where notice is required, specifying the manner in which, and the person or agency to whom notice is given.
Rule 15.7A. Requests for Information
All requests for information under 23 Pa.C.S. § 2905 shall be made by letter directed to the court or by presenting a completed questionnaire which can be obtained from the Office of the Clerk of the Orphans' Court or available on its website. If a court file is located regarding the adoption in question, the court will send a form of petition to the requestor for completion, which shall be filed in the Office of the Clerk of the Orphans' Court.
Note: A set of forms for foreign adoption registration and detailed instructions are available at the Office of the Clerk of the Orphans' Court and on its website at www.chesco.org/wills
RULE 17. SHORT TITLE Rule L17.1A. The Rules set forth herein which do not appear in bold face type shall be known and may be cited as Ches. Co. O.C. Rules.
[Pa.B. Doc. No. 06-2056. Filed for public inspection October 20, 2006, 9:00 a.m.]
