MONTGOMERY COUNTY Adoption of Orphans' Court Rules Chapters 1 through 9 [46 Pa.B. 4833]
[Saturday, August 6, 2016]Administrative Order And Now, this 27th day of July, 2016, the Court hereby adopts Montgomery County Orphans' Court Rules, Chapters one (1) through nine (9), which replace the existing Montgomery County Orphans' Court Rules, with the exception of Chapters fourteen (14), fifteen (15) and sixteen (16). A copy of these Rules follows as Exhibit A to this Order. These Rules shall become effective September 6, 2016 in accordance with Pennsylvania Rule of Judicial Administration, Rule 103(d)(5)(iii).
The Clerk of the Orphans' Court is directed to publish this Order, along with a copy of the adopted Montgomery County Local Orphans' Court Rules (''Local Rules'') on the Montgomery County Orphans' Court website and incorporate the Local Rules in the complete set of local rules no later than thirty (30) days following publication in the Pennsylvania Bulletin, in accordance with Pa.R.J.P., Rule 103(d)(6)(ii—iii). In further conformity with the Pennsylvania Rules of Judicial Administration, Rule 103(d)(6)(i), one (1) certified copy shall be filed with the Clerk of the Orphans' Court and the Clerk of the Orphans' Court shall forward one (1) certified copy of this Order and the Local Rules to the Administrative Offices of Pennsylvania Courts.
The Clerk of the Orphans' Court is further directed, pursuant to Pa.R.J.P., Rule 103(d)(7), to keep a compilation of these Local Rules continuously available for public inspection and copying in the respective filing office and on the website of the Montgomery County Orphans' Court. Upon request and payment of reasonable costs of reproduction and mailing, the Montgomery County Orphans' Court shall furnish a person with a copy of any local rule.
In addition, the Clerk of the Orphans' Court shall deliver one (1) copy to the Court Administrator of Montgomery County, one (1) copy to the Law Library of Montgomery County and one (1) copy to each Judge of the Orphans' Court Division of this Court.
By the Court
WILLIAM J. FURBER, Jr.,
President JudgeLOIS E. MURPHY,
Administrative JudgeEXHIBIT A MONTGOMERY COUNTY LOCAL ORPHANS' COURT RULES CHAPTER I. PRELIMINARY RULES Local Rule 1.1A.
These rules shall be known as the Montgomery County Orphans' Court Rules, and shall be referred to individually herein as ''Local Rule'' and cited as ''Pa.Mont.O.C. Local Rule ______ .''
Local Rule 1.7A. Officers Not Eligible To Practice.
The following officers shall not practice as an attorney before this court: the clerk of this court; any law clerk of this court; the Register of Wills and the sheriff of this County; the official stenographer; and their assistants, deputies and clerks.
Local Rule 1.8A. Cover Sheet.
Every legal paper filed (unless filed electronically) shall be accompanied by a completed cover sheet, in the form available from the Clerk of the Orphans' Court of Montgomery County and available on the Montgomery County Website at the following link: http://www.montcopa.org/DocumentCenter/View/418. The cover sheet must be typed or printed and must include the address and signature of the attorney for the filing party. If the party is not represented by any attorney, the party must sign the cover sheet and include his or her address. Where an attorney or party has not previously entered his or her appearance with respect to the matter, the cover sheet for a pleading shall be deemed to be an entry of appearance by the attorney or party who signs the cover sheet.
Local Rule 1.8(c). Checklists.
Every account, petition for adjudication of account, and petition for appointment of a plenary permanent guardian of the estate of an incapacitated person must be accompanied by a completed checklist, in the form available on the Montgomery County website at the following link: http://www.montcopa.org/206/Orphans-Court-Adoption-Information. The checklist must be typed or printed and must list the required documents attached.
See Proposed Checklists Below
CHAPTER II. ACCOUNTS, OBJECTIONS AND DISTRIBUTIONS Local Rule 2.4A. Audit List—When Called.
The audit list will be called on the first Monday of every month except September and in September on the Tuesday after Labor Day. Each audit list shall include accounts continued from previous audit lists, and new accounts eligible for audit.
Local Rule 2.4B. Signatures.
All accountants or personal representatives shall sign the account and petition for adjudication/statement of proposed distribution in accordance with Rule 3.12. At least one accountant or personal representative shall verify the account and petition for adjudication/schedule of distribution in accordance with Rule 3.13.
Local Rule 2.4C. Additional Receipts and Disbursements.
Receipts and disbursements after the date to which the account was stated and to be included in the adjudication, shall be set forth in the petition for adjudication or in a separate statement attached thereto.
Local Rule 2.5A. Notice following continuance.
When an account is scheduled to be called or is called for audit on a particular date and the matter is requested to be continued to a subsequent audit date, the accountant is required to notify all interested parties of the new date in accordance with Rule 2.5.
Local Rule 2.6A. Index of Proceedings.
The clerk shall assign to each new matter a file number. The file number and the name of the matter shall be included in the caption of all papers filed in the clerk's office.
Local Rule 2.6.B. Holidays.
Whenever a session of court, a return day, or any time fixed for performing any judicial or clerical duty, falls on a holiday, Saturday, or a Sunday, the next day not a holiday, a Saturday, or a Sunday shall be the day for the session of court, the return day, or the time for performance of the judicial or clerical act, unless otherwise provided by these rules.
Local Rule 2.6C. For a Particular Audit.
Accounts to appear on a particular audit list must be filed not later than the fifth Wednesday preceding the date when that audit list will be called, except when that Wednesday falls on a holiday, in which event accounts must be filed not later than the next preceding non-holiday.
Local Rule 2.7A. Hearings on Objections to Accounts, Claims or Questions of Law.
(a) When objections to an account have been filed, a hearing on the objections will be held on a day fixed by the court.
(b) Claimant's Statement. The attorney for claimant shall file with the clerk, prior to the hearing, a written statement of all material facts relied upon and shall serve a copy thereof on the attorney for accountant or other contesting parties at least twenty days prior to the hearing in the manner provided in Rule 4.2.
Local Rule 2.9A. Schedules of Distribution.
(a) 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 certified by the attorney for accountant to be correct and in conformity with the adjudication, and shall be filed with the clerk in duplicate. When a schedule is approved in writing by interested parties the attorney for accountant shall also certify whether or not such parties constitute all those affected thereby.
(b) Confirmation. If no objections are filed by the twentieth day after the schedule was filed, it will be confirmed, as of course. Schedules approved in writing by all interested parties affected thereby will be confirmed, as of course, 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.
(c) Objections. Objections to unconfirmed schedules of distribution shall be filed with the clerk, and may be filed not later than the twentieth (20th) day after the schedule was filed. Such objections 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.
Local Rule 2.9B. Schedules of Distribution (Notice of Filing).
(a) When Notice Given. Notice of filing the schedule of distribution shall be given to all interested parties affected thereby who do not attach to it or submit with it their written approval, but only when the schedule contains:
1) items of additional receipts or disbursements not included in the adjudication; or
2) distribution of assets which were awarded in kind in the adjudication, but which were neither specifically bequeathed to the distributee nor elected by him to be taken in kind or which were revalued.
(b) Time of Notice. Such notice shall be given no later than the day of the filing of the schedule, by letter addressed to the last known address of the party in interest or his attorney.
(c) Return of Notice. The attorney for accountant shall certify on the schedule that due notice of the filing thereof was given as required by this rule and shall attach a copy of the notice and a list of those to whom such notice was sent.
Local Rule 2.9C. Distribution of Real Estate.
(a) When No Partition or Allotment Required or When Distributees Agree to Schedule. No 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 described in the same detail and with the same particularity as is commonly required to be included in deeds and may recite how title was acquired. Approval of schedules of distribution shall be in the nature of confirmation of title in the respective distributees and the clerk is authorized to certify to integral excerpts or extracts from such schedules, so approved, for purposes of recording such devolutions of real estate in the office of the recorder of deeds.
(b) 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 at the audit and the auditing judge 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 under the circumstances to protect all interested parties.
(c) Form of Clerk's Certificate. The following form shall be prepared by the attorney for the accountant, and submitted to the clerk for execution on final confirmation of an adjudication awarding real estate:
CERTIFICATE OF AWARD OF REAL ESTATE ESTATE OF ______ Late of the Borough of Norristown, Deceased No. ______ Award of Real Estate to: (1) ______ of ______ (2) ______ of ______ . Commonwealth of Pennsylvania
ss:
County of Montgomery
I, ______ , Assistant Clerk of the Orphans' Court Division of the Court of Common Pleas for the County of Montgomery, in the Commonwealth of Pennsylvania, do hereby certify the attached to be a true and correct excerpt from the schedule of distribution filed in conformity with adjudication of the Orphans' Court Division of the Court of Common Pleas of Montgomery County upon the first and final account of ______ and ______ , Executors of the Will of______ , late of the Borough of Norristown, deceased, filed and confirmed nisi ______ , ______ , 20______ , and confirmed absolutely______ , ______ , 20______ , as the same remains on file and is of record in said court.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of said Court at Norristown this _____ , day of ______ , 20______ .
_________________
Assistant Clerk of the
(SEAL) Orphans' Court DivisionCHAPTER III. PETITION PRACTICE AND PLEADING Local Rule 3.4A. Trust Inter Vivos.
The original, or a copy certified by counsel to be true and correct, of the trust instrument and any amendments thereto, shall be filed or e-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.
Local Rule 3.4B. Sureties.
(a) 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 that is filed for approval, and shall be renewed annually thereafter as 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.
(b) 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 certificate issued after March 31 of the same year shall have been filed with the clerk.
Local Rule 3.5A. Petition Requesting a Rule Setting a Date and Time for Response.
(a) Where a citation is not required, in lieu of proceeding by notice practice under Rule 3.5(b), the Court, upon its own motion or the request of the petitioner, may enter a preliminary decree, in the form provided in subparagraph (d), providing for the issuance of a rule to show cause and the scheduling of a date and time for appearance and response to the petition.
(b) If a petitioner requests that a preliminary decree be entered issuing a rule to show cause and setting a date and time for appearance and response to the petition, the petitioner shall attach a proposed preliminary decree to the petition in the form provided at subparagraph (d); the petitioner shall not include any proposed injunctive relief in a proposed preliminary decree.
(c) If a preliminary decree establishing a rule to show cause and setting a date and time for appearance and response to a petition is entered the following procedure shall apply:
1) The petitioner must file a certificate of service, listing the names and addresses of those individuals and entities to whom petitioner has sent a copy of the preliminary decree and the petition by first-class United States mail sent at least twenty (20) days before the response date set in the preliminary decree;
2) If an answer is not filed on or before the date scheduled in the preliminary decree, all averments of facts in the petition may be deemed admitted and the court shall enter an appropriate order;
3) If an answer is filed raising no disputed issues of material fact, the court, may decide the petition on the basis of the petition and answer;
4) If an answer is filed raising disputed issues of material fact, the court shall authorize such discovery as the court deems appropriate under the circumstances and shall set a schedule for a hearing and any briefing that the court shall require and for disposition of the petition.
(d) The preliminary decree described in paragraphs (a) and (b) shall be substantially in the following form:
[CAPTION] PRELIMINARY DECREE AND NOW, this _____ day of ______ , 20______ , upon consideration of the attached petition, it is hereby ordered that:
A Rule is hereby issued upon the respondent(s) _________________ [insert name or names of respondents] to appear and show cause why the petitioner is not entitled to the following relief requested in the petition:
[Insert paragraph or paragraphs restating relief requested in wherefore clause of Petition]
(2) The respondent shall file an answer to the petition on or before the ______ day of ______ , 20______ , and shall appear on that date at 9:30 am. in Court- room ______ , One Montgomery Plaza, Norristown, PA.
(3) The petition may be disposed of by the Court on that date, or the Court may set a schedule for such further proceedings as may be necessary.
By the Court
_________________
Local Rule 3.9A. Disposition of Preliminary Objections.
(a) At any time after twenty (20) days have passed following the filing of preliminary objections, if no amended petition has been filed, the court may set a schedule for briefing and argument, if necessary, or may rule on the preliminary objections and any answer thereto without argument or briefing.
(b) Briefs or memoranda of law shall be required only by special order of the court in every case.
CHAPTER IV. FORMAT AND SERVICE OF LEGAL PAPER BY PARTIES AND COURT; ELECTRONIC FILING Local Rule 4.7A. Electronic Filing of Legal Papers.
(a) Authorization for Electronic Filing. Effective January 6, 2014, the Clerk of the Orphans' Court of Montgomery County shall accept all legal papers and exhibits either by paper filing or by electronic filing through the Clerk of the Orphans' Court of Montgomery County Electronic Filing System (''Electronic Filing System'').
(b) Electronic Filing of Legal Paper.
1) Format of legal papers. Legal papers and exhibits to be filed by electronic filing shall be filed in portable document format (.pdf or ''PDF''). Any legal paper submitted to the Clerk of the Orphans' Court as a paper filing shall be converted to PDF and the Clerk of the Orphans' Court shall maintain the legal paper in PDF format.
2) Original legal papers. The Clerk of the Orphans' Court may return the original legal paper to the filing party, for retention by the filing party as required by Pennsylvania Supreme Court Orphans' Court Rule 4.7(c)(3), provided that the Clerk of the Orphans' Court shall maintain a complete and accurate paper copy of every legal paper filed in the Clerk of the Orphans' Court file.
3) Exhibits. Each exhibit to a legal paper shall be filed as a separate PDF document but as part of the same docket entry filed electronically, each exhibit shall be uploaded by the filing party as a separate PDF document, associated with the same filing as the legal paper. If a paper filing, each exhibit shall be entered on the docket by the Clerk of the Orphans' Court as a separate PDF document as part of the same docket entry as the legal paper.
4) Subsequent filing. A party filing a legal paper that is responsive to or related to an earlier filed legal paper in the same matter shall specify the 'Suffix number' (which can be found in the third column on the electronic docket), date and title of the prior legal paper at the time of filing the subsequent legal paper; the suffix number shall be provided either on the Orphans' Court Cover Sheet or in the Electronic Filing System.
(c) Signature, Verification and Retention of Legal Paper.
1) The original signature page or pages of any document filed electronically shall be retained by the filing party as required by Supreme Court Orphans' Court Rule 4.7(c) and shall be produced upon request the court.
2) The electronic filing of any legal paper that is required to be verified or signed (including, but not limited to a consent, waiver, joinder, settlement agreement or stipulation), acts as certification by the filing party that a paper copy of the filing was properly signed by attorneys and parties, in all places necessary, and where applicable, that the legal paper has been verified, and that the filing party has retained the signed original.
(d) Website, Access to Website and Filing Date.
1) Website. All legal papers to be filed electronically shall be filed through the Clerk of the Orphans' Court Electronic Filing System which shall be accessible through the website of Montgomery County Courts, https://www.courtsapp.montcopa.org/ROWEfiling or at such other website as may be designated from time to time.
2) Access to Website. To obtain access to the Electronic Filing System, counsel and any unrepresented party must register with a User Name and Password and must provide a valid e-mail address to which official notices will be sent, and must expressly consent to the receipt of official notices, orders and decrees from the Clerk of the Orphans' Court at the e-mail address or addresses provided.
3) Access available at all times. As required by the Supreme Court Orphans' Court Rule 4.7(d)(2), the Clerk of the Orphans' Court shall provide electronic filing access at all times.
4) Acknowledgement of Receipt of E-filing. Upon receipt of a legal paper through the Electronic Filing System, the Clerk of the Orphans' Court shall provide the filing party with an electronic acknowledgement that includes the date and time that the legal paper was received by the Electronic Filing System. This receipt does not constitute acceptance (see paragraph 5, below).
5) Notification of Acceptance or Rejection of Filing. Upon review, the Clerk of the Orphans' Court will promptly notify the filing party either that the legal paper was accepted for filing or that the legal paper was rejected and the reason for rejection.
(e) Intentionally omitted.
(f) Fees. The Clerk of the Orphans' Court will accept for payment of all filing fees the following credit and debit cards: American Express, Discover, MasterCard and Visa.
(g) Required redaction. Unless required by an applicable law, rule or order of court, any party or non-party filing a legal paper, as defined in Supreme Court Orphans' Court Rule 1.3, with the Clerk of the Orphans' Court must redact identifying information appearing in the legal paper filed, including in any attachments or exhibits thereto, as follows:
1) An individual's social security number or taxpayer identification number (other than the social security number of a deceased individual);
2) An individual's date of birth, provided that the filing may include the year of an individual's birth; provided that any filing related to a guardianship of a minor's person or estate or approval of a minor's compromise may include the date of birth of the minor;
3) With respect to any financial account number, including but not limited to any bank account, investment account, or credit card account, the account number must be redacted, as well as any PIN, password or other number used to secure such account, provided that the filing may include the last four digits of the account number;
4) The court may, for good cause shown in a specific case, order that additional information must be redacted from any filing, including but not limited to the home street address or driver's license number of a specified individual or the names of minor children;
5) The court may order the person making a redacted filing to file, in addition, an unredacted copy under seal; and
6) Where the court has permitted a filing to be made under seal, the court may later unseal the filing and may order the filing party to redact the filing at that time.
7) The responsibility for redacting the identifying information rests with the party or non-party making the filing and his or her counsel and the party or non-party will be responsible for certifying to the Clerk of the Orphans' Court that this Rule has been complied with. Documents will not be reviewed by the Clerk of the Orphans' Court for compliance with this Rule.
8) This rule shall not prevent a filer from providing information to the Clerk of the Orphans' Court required by the Electronic Filing System, including, for example, the social security number of a decedent or personal representative, provided that the information shall be redacted from all attached PDF documents.
9) Any information required to be redacted under this rule, or by court order, shall not be entered in the ''Docket Text'' field by the filing party during electronic filing.
CHAPTER V. RULES GOVERNING SPECIFIC TYPES OF PETITIONS Local Rule 5.2A. Notice.
(a) When No Petition. When the procedure is without petition no notice other than that to the personal representative need be given of the claim for exemption.
(b) When Petition Filed. When the procedure is by petition, notice of the filing thereof, and of the date fixed by the court for confirmation and allowance which shall not be less than twenty days after providing notice of the filing of the petition, shall be given by actual notice to the personal representative, if any, and to all persons other than creditors adversely affected by allowance of the exemption who do not join in the prayer of the petition, and by petition,
(c) After Appraisement. When it is necessary for the court to appoint appraisers, the notice shall be given after the appraisement has been made and filed.
Local Rule 5.2B. Objections.
(a) Voluntary Distribution. Questions regarding disbursements claimed in the personal representative's account for assets delivered or permitted to be retained for or on account of the exemption may be raised only by objections to the account, which shall be filed with the clerk in compliance with Rule 2.7.
(b) When Petition Filed. When the procedure is by petition, questions as to the appraisement or allowance, or both, may be raised only by objections filed with the clerk on or before the time fixed for confirmation and allowance.
(c) Higher Bid. Objections which relate only to the amount of the appraisement will be dismissed unless a definite and bona fide higher bid for the property is made, or facts warranting consideration by the court appear.
Local Rule 5.2C. Final Decree.
When the procedure is by petition, if no objections are filed on or before the time fixed in the preliminary decree, confirmation of the appraisement and allowance of the exemption may be obtained by submitting to the court the return to notices and a form of final decree.
Local Rule 5.4A. Extension of Time.
A petition for the extension of time in which the surviving spouse may file an election to take against the will shall include the requirements of subparagraphs (1) through (5) for a petition under Rule 5.4 and a request for a citation upon the interested parties who have not joined in the petition or who have not consented thereto to show cause why an extension of time to file an election should not be granted.
Local Rule 5.6A. Appearance at Presentation of Petition.
A minor shall appear at the hearing on all petitions for the appointment of a guardian of their person. A minor who is fourteen years old or older at the time of the hearing shall appear at the hearing on all petitions for the appointment of a guardian of his/her estate; unless the minor has consented to the proposed guardian and the consent is attached to the petition.
Local Rule 5.6B. Minor's Estate. Restricted Accounts. Waiver of Bond.
In lieu of the entry of bond, the court in appropriate cases may authorize the guardian to deposit the funds of the minor in an interest bearing account or to purchase shares of a building and loan association or Federal savings and loan association which has an office located in Montgomery County, in accordance with the provisions of Probate, Estates and Fiduciaries Code § 5103, 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, and that the evidence of the deposit or investment, marked to indicate the restriction, shall be promptly exhibited to the clerk. If the minor is sixteen (16) years of age or over, or if the funds of the minor are $10,000 or less, the requirement of a bond will be waived unless specially required by the Court. The Court may also waive the requirement of a bond in such other cases as the Court, for cause shown, finds that no bond is necessary.
Local Rule 5.6C. Minor's Estate. Guardian. Certificate of Appointment. Security.
If bond is required of a guardian, the clerk shall not issue the certificate of his or her appointment until the bond and surety have been approved by the court.
Local Rule 5.6D. Minor's Estate. Allowances.
When a petition is necessary for an allowance from a minor's estate, the petition shall set forth:
(a) the manner of the guardian's appointment and qualification, and the dates thereof;
(b) the name, age and residence of the minor;
(c) the name of the person with whom the minor resides, the name and age(s) of that person's spouse and children and/or dependents, if any;
(d) whether or not the minor's parents are living;
(e) the value of the minor's estate, real and personal, and the net annual income;
(f) the circumstances of the minor, whether employed or attending school; if the minor's parents, or any other person charged with the duty of supporting him or her, is living, the financial condition and income of such person and why he or she 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;
(g) the date and amount of any previous allowance by the court; and
(h) the financial requirements of the minor and his or her family unit, in detail, and the circumstances making such allowance necessary.
Local Rule 5.8A. Discharge of Fiduciary—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 therewith.
Local Rule 5.8B. Discharge of Personal Representative, Estates Not Exceeding $50,000.
A petition with account annexed for the discharge of a personal representative under Rule 5.8 shall also conform as far as practicable to the requirements of a petition under Rule 5.16 for the settlement of a small estate under the provisions of Section 3102 of Probate, Estates and Fiduciaries Code.
Local Rule 5.10A. Public Sale. Contents of Petition Additional Requirements.
(a) When it is required that a personal representative, trustee or guardian petition the court to sell real property at public sale, the petition (in addition to requirements of Rule 5.10) shall also set forth in separate paragraphs:
1) With respect to a decedent's estate, 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;
2) With respect to a minor's estate, the age of the minor;
3) With respect to a minor's estate or an incapacitated person's estate, the nature and extent of the interest of the ward, and of other persons in the real property;
4) With respect to property of an incapacitated person, the guardian shall include an averment whether the guardian knows or has reason to know of any objection of the ward to the sale of the real property, and shall describe the nature and circumstances of any such objection, whether stated before or after the adjudication of incapacity;
5) how title to the real property was acquired, stating the date and place of probate of the will or recording of the deed;
6) a recital of the relevant provisions of the will, trust or deed pertaining to the real property to be sold, and of the history of the trust;
7) that the fiduciary is not otherwise authorized to sell the real estate by the Act; or is not authorized or is denied the power to do so by the will or trust, or that it is desirable that the sale have the effect of a judicial sale, stating the reasons;
8) 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;
9) if the fiduciary entered bond, the name of the surety and the amount of such bond;
10) the names and relationships of all interested parties, including the next of kin of any minor or incapacitated person, a brief description of their respective interests; whether any of them are minors, incapacitated persons or deceased, and if so, the names of their fiduciaries, if any; and the notice given to each such party in interest of the filing of the petition;
11) the improvements on the property, by whom it is occupied, its rental value and current tax assessment; and
12) sufficient facts to enable the court to determine that the sale is desirable for the proper administration and distribution of the estate.
Local Rule 5.10B. Public Sale. Exhibits.
The following exhibits shall be attached to a petition by a personal representative, trustee or guardian, to sell real property at public sale:
(a) a copy of the will, deed, or decree by which the fiduciary was appointed; and
(b) any consents or joinders of interested parties, and the names and a copy of the notice which has been given to those parties who do not consent or join; and
(c) consent by any mortgagee whose lien would otherwise not be discharged by the sale.
Local Rule 5.10C. Public Sale of Real Property. Notice. Return.
(a) Notice. After the allowance of a petition for public sale, public notice of the proposed sale shall be given by advertisement once a week for three successive weeks in the Montgomery County Law Reporter and in one other newspaper of general circulation in Montgomery County and by posting a notice on the premises, and as far as possible, at least twenty (20) days prior notice of the time and place of the proposed sale shall be given to all interested parties, by personal service or registered mail.
(b) Return. Returns of public sale of real property for the purpose of approval or confirmation by the court shall be in the form of an affidavit, which shall set forth
1) the information required by Local Rule 5.10A and the advertisement made;
2) the price obtained; and
3) the name and address of the purchaser and that he was highest bidder.
Local Rule 5.10D. Public Sale. Security.
On the return day of the sale, the court, in the decree approving, or confirming the 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.
Local Rule 5.10E. Petition to Fix or Waive Additional Security. Personal Representative. Trustee.
(a) 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 fiduciary was required to give bond as such personal representative or trustee, he or she shall present a petition to the court before the proceeds of the sale are paid to him or her by the purchaser, setting forth:
1) the date of death of the decedent;
2) the date of the petitioner's appointment;
3) the amount of the bond or bonds filed by him or her, and the date of such filing and the name or names of his surety;
4) 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;
5) a short description of the real property sold, the name of the purchaser and the amount of the consideration to be paid; and
6) a prayer for an order fixing the amount of additional security or for an order excusing him from filing additional security, as the case may be.
(b) Surety on Additional Bond. The surety on any additional bond except for cause shown shall be the same as on the original bond.
Local Rule 5.11A. Private Sale, Exchange or Option. Exhibits.
(a) Personal Representative. Trustee. Guardian. The following exhibits shall be attached to the petition by a personal representative trustee, or guardian, to sell real property at private sale or to exchange real property or give an option therefor:
1) a copy of the will, deed, or decree by which the fiduciary was appointed;
2) any consents or joinders of interested parties and the names and a copy of the notice which has been given to those parties who do not consent or join;
3) a copy of the agreement of sale or exchange or option agreement;
4) affidavits as to value as to the property to be optioned or exchanged or sold and, in the case of an exchange, of the property to be received, made by two real estate appraisers; and
5) with respect to a sale of real property of an incapacitated person, the guardian of estate of the incapacitated person shall include in the petition for approval of the sale an averment concerning whether the guardian knows or has reason to know of any objection of the incapacitated person to the sale of the real property, and shall describe the nature and circumstances of any such objection, whether stated before or after the adjudication of incapacity.
Local Rule 5.11B. Procedure.
(a) Private Sale. Whenever on the day fixed for approval of a private sale a person other than the proposed purchaser named in the petition, or more than one such other person, shall appear for the purpose of offering a higher price than that to be paid by the proposed purchaser named in the petition, the following procedure shall be followed unless otherwise directed by the court;
1) No offer from any proposed purchaser other than the one named in the petition will be considered unless it is at least ten (10) percent higher and is payable in cash.
2) If one or more interested purchasers other than the proposed purchaser named in the petition do appear and state their willingness to offer at least ten (10) percent more, the Court will conduct an informal auction. The proposed purchaser named in the petition and all other interested purchasers shall have the opportunity to make offers at least ten (10) percent higher than the offer of the original proposed purchaser, until the highest price offered by any interested purchaser shall be determined.
3) The Court will then entertain the highest offer made by an interested purchaser and will enter an appropriate decree.
(b) Option for Private Sale. Part (a) of this rule shall apply to the approval of grant of an option for private sale, and in addition to the provisions of clause (1) thereof, the other proposed purchaser must also offer a consideration for the option itself which is at least one hundred (100) percent higher and is payable in cash.
(c) Private Exchange. The procedure in the event another person appears, on the day fixed for approval of an exchange, for the purpose of offering a different consideration, shall be as the court directs by special order.
Local Rule 5.11C. Private Sale, Exchange or Option.
The court, in the decree approving or confirming the sale, exchange, or grant of option, 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.
Local Rule 5.11D. Petition to Fix or Waive Additional Security. Personal Representative. Trustee.
(a) 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 fiduciary was required to give bond as such personal representative or trustee, he or she shall present a petition to the court before the proceeds of the sale are paid to the fiduciary by the purchaser, setting forth:
1) the date of death of the decedent;
2) the date of the petitioner's appointment;
3) the amount of the bond or bonds filed and the date of such filing and the name or names of the surety;
4) 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;
5) a short description of the real property sold, the name of the purchaser and the amount of the consideration to be paid; and
6) a prayer for an order fixing the amount of additional security or for an order excusing the fiduciary from filing additional security, as the case may be.
(b) Surety on Additional Bond. The surety on any additional bond except for cause shown shall be the same as on the original bond.
Local Rule 5.12A. Mortgage of Real Property—Additional Requirements or Lease.
(a) 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; shall set forth the amount and terms of the proposed mortgage loan or terms of lease; and shall set forth sufficient facts to enable the court to determine whether the proposed mortgage or lease should be approved.
(b) Exhibits. The following exhibits shall be attached to the petition:
1) A copy of the will, deed or decree by which the fiduciary was appointed:
2) Any consents or joinders of interested parties, and the names and a copy of the notice which has been given to those parties who do not consent or join.
(c) Security. The amount of the bond or additional security required to be entered, or the waiver thereof, will be determined by the court in its decree approving the proposed mortgage or lease.
Local Rule 5.16. Settlement of Small Estates.
(a) Form of Petitions. Contents. A petition under Probate, Estates and Fiduciaries Code § 3102 for distribution of small estates shall set forth:
1) The name and address of the petitioner and his or her relationship to the decedent.
2) The name, date of death and domicile of decedent, whether he or she died testate or 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.
3) 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 under Probate, Estates and Fiduciaries Code § 3101, or otherwise, and whether any of them are minors, incapacitated persons or deceased with the names of their fiduciaries, if any.
4) 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 5.2.
5) 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.
6) A list showing the nature, amount and preference of all unpaid claims against the estate and indicating which are admitted.
7) If any unpaid beneficiary, heir, or claimant has not joined in the petition, a statement that twenty days' notice of filing of the petition has been given in accordance with these rules.
8) A prayer for distribution of the personal property to those entitled, and in appropriate cases for the discharge of the personal representative.
(b) Exhibits. There shall be attached to the petition the following exhibits:
1) The original of the decedent's will if it has not been probated, or a copy of the will if it has been probated.
2) Joinders of unpaid beneficiaries, heirs and claimants insofar as they are obtainable.
3) 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, item of distribution or the family exemption.
4) Certificate of Register of Wills showing status of the inheritance tax.
(c) Appraisements. No appraisement shall be required unless ordered by the Court.
Local Rule 5.17A. Petition to Convert to Unitrust.
(a) Contents of Petition
1) The name, address and interest of petitioner in the trust.
2) How and when the trust was created, attaching a copy of the trust document and any amendments thereto to the petition as an exhibit.
3) The facts establishing Montgomery County as a proper venue for the trust.
4) Statement of how the trustee received the funds (e.g. by gift, by award from a prior adjudication, etc.).
5) A description of the dispositive provisions of the trust.
6) The terms of the trust.
7) Names of all beneficiaries.
i. Beneficiaries who are currently eligible to receive income from the trust.
ii. Names of any successor beneficiaries or representatives of beneficiaries.
iii. The names of all beneficiaries entitled to distribution of principal in the absence of exercise of any powers of appointment.
iv. Petition shall identify any beneficiary who has been declared incapacitated, is believed not to be sui juris or is a minor, including the age of the minor, and including the names of any fiduciary representing a beneficiary
(b) Asset information related to the assets of the trust.
1) The current market value of the trust principal.
2) The current annual fiduciary income accounting of the trust without regard to the power to adjust under Probate, Estates and Fiduciaries Code § 8104.
3) The current percentage yield of the trust based on trust principal and trust income.
4) The current percentage of the trust invested in fixed income investments and the current percentage of the trust invested in equities.
5) The current percentage of trust assets not invested but producing income or unfixed in equities.
(c) Facts supporting why the conversion will enable the trustee to better carry out the intent of the settlor or testator and the purpose of the trust.
(d) Copies of all notices sent to beneficiaries shall be attached as an exhibit to the petition.
(e) Statement as to why there is a need for court approval of the requested conversion.
(f) Specific language relating to the relief being requested shall be included in both the petition and the order to be attached to the petition.
CHAPTER VII. RULES RELATING TO PRE-HEARING AND HEARING PROCEDURE Local Rule 7.1A. Practice as to Depositions, Discovery, Production of and Perpetuation of Testimony.
(a) The parties may agree to the scope and deadlines for discovery, and may agree to any or all of the following: responses to written interrogatories, document production, requests for admissions and depositions, including depositions to preserve testimony for trial, and may agree to the specific dates, times and places for depositions.
(b) The parties may, upon agreement, request the entry of a court order setting a deadline for the completion of discovery, or the court may set a deadline for completion of discovery on its own motion.
(c) In the absence of an agreement, leave to take any form of discovery or to preserve testimony shall be granted only by court order following a petition setting forth the nature of the proposed discovery, the scope of the proposed discovery, and the need for the proposed discovery, and shall describe the good faith efforts made to reach an agreement regarding discovery. A petition seeking leave to take discovery shall include the notice required under rule 3.5(b) and an answer to the petition shall be filed within twenty (20) days of service of the petition. The court may set a schedule for briefing or argument, if necessary, following the filing of an answer to the petition, or may rule on the petition and answer without argument or briefing.
(d) Discovery material shall not be filed with the court unless relevant to a motion or petition or other pre-trial proceeding, ordered by the court or required by statute.
Local Rule 7.2A. Motion for Judgment on the Pleadings.
(a) A memorandum of law in support of a motion for judgment on the pleadings shall be file simultaneously with the motion;
(b) An answer to a motion for judgment on the pleadings shall be filed within twenty (20) days of service of the motion and a memorandum of law in opposition to the motion shall be filed simultaneously with the answer;
(c) The court may schedule oral argument on a motion for judgment on the pleadings or may dispose of the motion without argument.
Local Rule 7.3A. Motion for Summary Judgment.
(a) A memorandum of law in support of a motion for summary judgment shall be filed simultaneously with the motion;
(b) An answer to a motion for summary judgment shall be filed within thirty (30) days of service of the motion and a memorandum of law in opposition to the motion shall be filed simultaneously with the answer;
(c) The court may schedule oral argument on a motion for summary judgment or may dispose of the motion without argument.
Local Rule 7.5A. Conference.
In any action the court, of its own motion or on motion of any party, may direct the attorneys for the parties to appear for a conference to consider:
(a) The simplification of the issues;
(b) The necessity or desirability of amendments to the pleadings;
(c) The possibility of obtaining admissions or stipulations of fact and of documents which will avoid unnecessary proof;
(d) The limitation of the number of expert witnesses; and
(e) Such other matters as may aid in the disposition of the action.
Local Rule 8.2A. Motion For Reconsideration.
(a) Any motion for reconsideration filed pursuant to Pennsylvania Supreme Court Orphans' Court Rule 8.2 must be filed within twenty (20) days after the date of the filing of any order, decree or adjudication as to which reconsideration is sought.
(b) The motion for reconsideration must state how the grounds for reconsideration were previously asserted in the proceedings. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.
(c) If a party has filed a timely motion for reconsideration, any other party may file a motion for reconsideration within twenty (20) days after the date on which the first motion for reconsideration was filed.
(d) Any party filing a motion for reconsideration shall serve a copy promptly upon every other party to the action, or upon counsel for any party represented by counsel. Prompt service may be accomplished by electronic delivery to any party or counsel who has agreed, with respect to the specific case pending, to receive electronic delivery of documents and to any party or counsel who has registered as an e-filer in the e-filing system of the Clerk of the Orphans' Court, or by U.S. first-class mail to any other party or counsel.
Local Rule 9.1A. Auditor or Master Notice of Scheduled Hearings.
(a) An auditor or master appointed pursuant to 20 Pa.C.S. § 751 shall give written notice of scheduled hearings:
1) by service upon the attorney appearing of record for a party;
2) if there is no such attorney, by U.S. first-class mail, if the party's residence is known; or
3) if a party's residence is not known, by publication once a week during two successive calendar weeks in the Montgomery County Law Reporter; or by such method of alternative service as is authorized by the court.
Local Rule 9.6A. Notice of Auditor or Master Report.
(a) An auditor or master appointed pursuant to 20 Pa.C.S. § 751 shall give written notice of the filing of a report:
1) by service upon the attorney appearing of record for a party; or
2) if there is no such attorney, by U.S. first-class mail, if the party's residence is known.
3) if a party's residence is not known, by publication once a week during two successive calendar weeks in the Montgomery County Law Reporter; or by such method of alternative service as is authorized by the court.
(b) Any party in interest shall have the right to file objections to an auditor's or master's report within twenty (20) days of the filing thereof.
(c) If objections are filed, the court shall schedule a date for a hearing or argument.
Local Rule 9.7A. Confirmation of Auditor or Master Report.
If no objections, as allowed under Local Rule 9.6A, are filed within twenty (20) days of the filing of an auditor's or master's report, the court may enter a decree confirming the auditor's report or adopting the master's report.
[Pa.B. Doc. No. 16-1350. Filed for public inspection August 5, 2016, 9:00 a.m.]
