Local Orphans' Court Rules; No. 2016-1
[46 Pa.B. 4172]
[Saturday, July 30, 2016]
And Now, this 15th day of July, 2016; It Is Hereby Ordered that the previously-stated Washington County Local Orphans' Court Rules are adopted as follows.
These rules will become effective thirty days after publication in the Pennsylvania Bulletin.
By the Court
KATHERINE B. EMERY,
WASHINGTON COUNTY PENNSYLVANIA
LOCAL ORPHANS' COURT RULES
O.C. Rule 1.1. Citation of Rules.
These rules shall be known as the Rules of the Court of Common Pleas of Washington County, Orphans' Court Division, adopted pursuant to Pa.O.C. Rule 1.5 and shall be cited as Wash.O.C. Rule ____ .
O.C. Rule 1.2. Sessions of Court. Miscellaneous Business.
(a) The Orphans' Court will be in session for the presentation of petitions and motions, the return of Citations and Sales, and for scheduling hearings and arguments thereon at the Motions Court scheduled by the Orphans' Court Judge and published in the annual Administrative Regulations, which can be found in Washington County Reports, the Register of Wills of Washington County, the Washington County Law Library, Office of the District Court Administrator and the Washington County Courts Website.
(b) The Audit List will be called on the dates specified in the annual Administrative Regulations.
(c) All applications, petitions, motions, and other miscellaneous business must, except in emergencies, be presented in open court; provided, however, that applications in non-adversary matters may be presented to the assigned judge in chambers at the court's convenience.
O.C. Rule 1.3. Definitions.
''Publication''—the publication in a newspaper of general circulation where such newspaper is originally issued and circulated and The Washington County Reports 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.
O.C. Rule 1.6. Washington County Orphans' Court Mediation Program.
(a) Cases filed in the Orphans' Court division may be ordered into the Orphans' Court Mediation Program by the judge to whom the case is assigned.
(b) The mediators shall be practicing attorneys that are members of the Washington County Bar Association, with an emphasis in their practice on Orphans' Court matters. A list of mediators shall be maintained by the District Court Administrator, and selected by the court in consultation with the Washington County Bar Association.
(c) Upon appointment, the mediator shall schedule the mediation within sixty (60) days of the order of court. The attendance of lead counsel, the parties, and a representative, including an insurance carrier, with authority to enter into a full and complete compromise and settlement is mandatory. If lead counsel, the parties, or a representative fail to appear absent good cause, the mediation will not be held and sanctions shall be entered against the non-appearing individual(s) by the court upon request of the mediator. Sanctions may include an award of reasonable mediator and attorney's fees and other costs.
(d) At least ten (10) days prior to the mediation, each party shall file a mediation statement which must include the following: (1) a succinct explanation of the facts and relief sought; (2) significant legal issues that remain unresolved; (3) summary of medical and expert reports (if applicable); (4) itemized list of damages; and (5) settlement posture and rationale. Failure to file a mediation statement may result in sanctions if requested by the mediator.
(e) Each party to a case selected for mediation shall pay a mediation fee to be made payable to the County of Washington and submitted to the Office of the District Court Administrator for processing. The mediation fee shall be set by administrative order, and information regarding the fee shall be available in the Office of the District Court Administrator.
(f) If the case has not been resolved, within ten (10) days from the date of the mediation, the mediator shall send the court a report setting forth the mediator's assessment of the case and the mediator's recommendation regarding settlement A copy of the report shall be provided to and maintained by the District Court Administrator until the case is closed.
(g) If the case is resolved and a settlement agreed upon, the mediation shall send a letter to the judge, with copies to counsel and the District Court Administrator.
(h) The mediator shall not be subpoenaed or requested to testify or produce documents by any party in any pending or subsequent litigation arising out of the same or similar matter. Any party, person, or entity that attempts to compel such testimony or production shall be liable and indemnify the mediator and other protected participants for all reasonable costs, fees and expenses. The mediator shall have the same limited immunity as judges pursuant to the applicable law as it relates to Common Pleas Judges. Notwithstanding the preceding subsections the court may in its discretion set a case for an alternative dispute resolution (''ADR'') before a private mediator. The method of selection of the private mediator shall be in the discretion of the court. All parties shall bear equally the costs of any court-ordered private mediation; provided, however, that the court will take appropriate steps to assure that no referral to ADR results in an unfair or unreasonable economic burden on any party.
O.C. Rule 2.4. Medical Assistance.
(a) For decedents who died after August 15, 1994, and were over 55 years of age upon their demise, the provisions of 62 P.S. § 1412(b) apply. Attached to the petition for adjudication shall be either:
(1) the notice sent to the Department of Human Services and the Department's response; or
(2) the Affidavit of the fiduciary, that he has reason to know the financial affairs of the decedent prior to decedent's death, and the fiduciary affirmatively represents that decedent did not receive any medical assistance during the five years preceding decedent's death.
O.C. Rule 2.6. For a Particular Audit.
Accounts to appear on a particular audit list must be filed not later than the date listed on the Schedule published annually by the Clerk of the Orphans' Court and posted in the office of the Clerk of the Orphans' Court. The Schedule shall list the audit date as provided in the annual Administrative Regulation and the last date to file an Account for inclusion on each particular audit date.
O.C. Rule 2.9. Distribution of Real Estate.
(a) Schedules of distribution shall include awards of real estate to the parties entitled thereto, whether individually, or, where the circumstances require, in undivided interests.
(b) 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, must recite how title was acquired, list the tax parcel identification number and the name and address of the individual who is to received real estate tax notices.
(c) Approval of schedules of distribution shall be in the nature of confirmation of title in the respective distributees and the Clerk of the Orphans' Court shall 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.
(d) 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 evidence of title 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 parties in the same particularity as is commonly required to be included in deeds and must recite how title was acquired.
(e) The following form shall be prepared by the attorney for the accountant and submitted to the Clerk of the Orphans' Court for execution on final confirmation of an adjudication awarding real estate:
IN THE COURT OF COMMON PLEAS OF
ORPHANS' COURT DIVISION
IN RE: ) NO. 63 - ) In the matter of the ______ AND ESTATE OF ) ______ ACCOUNT OF NAME OF DECEASED, ) (NAME OF PERSONAL REPRESENTATIVE) Deceased )
ADJUDICATION AND DECREE
SCHEDULE OF DISTRIBUTION
Including the following
REAL ESTATE TO BE CERTIFIED TO THE RECORDER OF DEEDS OF WASHINGTON COUNTY BY THE CLERK OF THE ORPHANS' COURT DIVISION _________________ (name of deceased), decedent to (devisees/intestate heirs,) right, title, and interest of the decedent in and to the following described real estate:
O.C. Rule 3.2. Filing, Indexing, and Dockets.
(a) Each proceeding of the Orphans' Court Division shall be assigned a filing number by the Clerk of the Orphans' Court, which number shall consist of three groups of numbers separated by hyphens, the first group to be ''63'', the second to be the last two digits of the year of filing, and the third, the number of the proceeding, in numerical order, in the year in which filed. All papers subsequently filed relating to that matter shall bear the same number.
(b) All papers filed with the Register of Wills or Clerk of the Orphans' Court, including Inheritance Tax Returns, shall be indexed in the Electronic Retrieval System
(c) Papers filed with the Register of Wills or Clerk of the Orphans' Court, shall not be removed except by order of court, and petitions and court orders returned to attorneys for filing with the Clerk of the Orphans' Court shall first be docketed by a court officer and then filed promptly by such attorneys.
O.C. Rule 3.9. Preliminary Objections.
When preliminary objections are filed to any pleading or proceeding in the Clerk of the Orphans' Court after notice to opposing counsel, a copy shall be presented to the court at its Motions Session along with an original order for scheduling argument and briefs.
O.C. Rule 5.10-1. Terms and Conduct of a Public or Private Sale.
(a) All public or private sales shall be made for cash unless otherwise specifically ordered by the court and in no event shall a bid on the property be finally accepted unless at least ten (10%) percent of the proposed purchase price, or a sum sufficient to defray all costs of a resale in event purchaser fails to pay the balance, whichever is the greater amount, be immediately paid to the fiduciary conducting the sale.
(b) The fiduciary shall reserve the right to reject any bid for inadequacy of price or irresponsibility of bidder.
(c) Prior to calling for bids on any property being offered for public or private sales, the terms of sale, as set forth in sub-paragraphs (a) and (b) of this Rule, shall be publicly announced, and at the same time notice shall be given of the time and place at which confirmation by the court will be requested.
O.C. Rule 5.10-2. Return, Confirmation of Sale, and Security.
(a) Returns of public or private sales of real property for the purpose of an approval or confirmation by the court shall be in the form of a petition by the fiduciary which shall set forth:
(1) the manner in which notice was given;
(2) the price obtained;
(3) the name and address of the purchaser and that such purchaser was the highest bidder;
(4) a complete copy of the written agreement of sale shall be attached;
(5) whether any objections to the confirmation have been filed; and
(6) a proposed final order of court approving or confirming the sale.
(b) On the return day of the sale, the court will entertain initial and subsequent bids for such property in increments of Five Hundred ($500.00) Dollars, or five (5%) percent in excess of the bid returned, whichever is greater. In event any subsequent bid is offered, the purchaser named in the petition may retain his right to such property by matching the highest bid offered. All bids shall be subject to the requirements of Local Rule 5.10-1(a).
(c) On the return day of the sale, the court, in the decree approving or confirming the public or private sales, will fix the amount of bond or additional security which the fiduciary shall be required to enter, or will excuse the fiduciary from entering additional security.
O.C. Rule 5.16. Settlement of Small Estates.
(a) Petitions 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 relationship to the decedent.
(2) The name, date of death, and domicile of decedent, whether he 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 interest, 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 therefore 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 ten (10) days' notice of intention to present 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) 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 parties in interest.
(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, distribution or the family exemption; and
(4) Proof of payment of inheritance tax.
O.C. Rule 7.1. Pre-Trial Conference.
(a) 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 conference to consider:
(1) the simplification of the issues;
(2) the necessity or desirability of amendments to the pleadings;
(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; and
(5) such other matters as may aid in the disposition of the action.
(b) The court may make an order reciting the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and limiting the issues for trial to those not disposed of by admissions or agreements of the attorneys. Such order when entered shall control the subsequent course of the action unless modified at trial to prevent manifest injustice.
O.C. Rule 9.1. Notice by Auditors or Masters.
Auditors or masters shall give notice of hearings held by them to all parties interested, or to their attorneys of record, in the manner provided in Rule 2.5. Notice of succeeding hearing 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.
O.C. Rule 9.6. Notice and Objections.
Auditors or masters shall, on or before the day of filing their reports, give notice of the filing of the same either personally or by mail to all interested parties of record or to their counsel of record. Proof of notice shall be attached to the report.
Any party interested party shall have the right to file objections to an auditor's or master's report within twenty (20) days of the filing thereof. If objections are filed the matter shall be argued before the court.
O.C. Rule 9.7. Decree.
If no objections are filed within ten (10) days of filing thereof, the court may enter a decree confirming the auditor's report or adopting the master's report.
O.C. Rule 10.3. Fees for Hearings.
The Register shall require a non-refundable fee for hearings in accordance with the Register of Wills and Orphans' Court fee bill, which is of record in the office of the Register of Wills.
O.C. Rule 10.4. Form of Appeal from the Register of Wills.
Appeals taken from the judicial acts or proceedings of the Register shall be addressed to the court, and filed in duplicate with the Register. The appeal shall be in the form of a petition, setting forth the nature of the proceedings before the Register, specifying the material points upon which it is based, and containing a concise statement of the relevant facts, and shall set forth the names of all interested parties and the necessary jurisdictional facts.
O.C. Rule 10.4. Issuance of Citation.
When an appeal has been perfected with the Register and the record has been transmitted to the Clerk of the Orphans' Court a citation shall issue as of course directed to all persons named in the appeal as interested parties to show cause why the appeal should not be sustained. The citation, with a copy of the appeal, shall be served as provided by the Probate, Estates and Fiduciaries Code. The citation shall be made returnable to a day and time certain.
[Pa.B. Doc. No. 16-1304. Filed for public inspection July 29, 2016, 9:00 a.m.]
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