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Rules Governing Specific Types of Petitions

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Rule 5.4A            Revocation, Vacating or Extension of Time for Filing of                                                                             Surviving Spouse’s Election

A petition for the extension of the time in which the surviving spouse may file an election to take against the will shall be presented to the court within the required statutory period after the probate of the will as required by Pennsylvania Orphans’ Court Rule 5.4(b).  The petition shall set forth the following additional matters:

  1. ‚Äčthe facts relied upon to justify the extension of time requested and the period of extension desired;

  2. the names of the interested parties who have consented to the extension of time as evidenced by their joinder in the petition.

               
Rule 5.6A           Appointment of a Guardian for the Estate or Person of a Minor 

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 federally insured savings account, certificate of deposit or credit union account or an account investing only in securities guaranteed by the United States government or a Federal governmental agency managed by responsible financial institutions.  The account(s) shall be marked “not to be withdrawn until the minor reaches the age of eighteen (18) years, except for the payment of local, state and federal income taxes on earnings of the certificate or account or upon further order of the court.”  Evidence of the deposit or investment marked to indicate the restriction, shall be promptly filed with the clerk.

Rule 5.6B            Minor’s Estate, Allowances

When a petition is necessary for an allowance from a minor’s estate, the petition shall set forth:

  1. the manner of the guardian’s appointment and qualification, the dates thereof;

  2. the age and residence of the minor, whether his or her parents are living, the name of the person with whom they reside, the name and age of their spouse and children, if any;

  3. the value of the minor’s estate, real and personal, and net annual income; and receipts from other sources, e.g., Social Security;

  4. the circumstances of the minor, whether employed or attending school; if the minor’s parents, or other persons charged with the duty of supporting them are living, the financial condition and income of such person and why they cannot, or should not be required to pay the expenses forming the occasion for the requested allowance under their  duty to support the minor; and whether there is adequate provision for the support and education of the minor, his or her spouse and children;

  5. the date and amount of any previous allowance by the court; and

  6. the financial requirements of the minor and his or her family unit, in detail, and the circumstances making such allowance necessary.

Rule 5.8A            Discharge of Fiduciary and Surety

  1. Additional Averments

    If the written consent of the surety is not attached as an exhibit, the petition shall aver that notice has been given to the surety, if any, of the date of the intended application for discharge. The petition shall also expressly state whether both the fiduciary and surety or the surety alone is to be discharged.

  2. Exhibits

The petition shall have attached thereto a copy of the schedule of distribution as confirmed, if one has been filed, and original releases or satisfactions of award from the distributees showing full payment of their distributive shares. If such original releases or satisfactions of award have been filed with the clerk, copies may be attached

Rule 5.10A                   Public Sale of Real Estate

  1. Personal Representative

    When it is required that a personal representative petition the court to sell real property at public sale, the petition, in addition to the requirements of Pennsylvania Orphans’ Court Rule 5.10, shall also set forth in separate paragraphs, the following:

    a.  the name or other designation of the estate; the date of death; whether the decedent died testate or intestate; date of grant of letters; if a decedent’s estate, or testamentary trust, or the date and manner of creation, if another type of fiduciary estate. If the petitioner is other than the fiduciary, include the particulars of the fiduciary required herein, and set forth facts sufficient to satisfy the court of the propriety of entertaining the petition by a petitioner other than the fiduciary;

    b.  set forth the reason why the personal representative is not otherwise authorized to sell under the Probate, Estates and Fiduciaries 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 therefor;

    c.  the total value of the personal estate for which they are accountable, as shown in the inventory filed and the inheritance tax appraisal made, if any, and also a statement of the total proceeds of any real estate previously sold or otherwise disposed of;

    d.  if the fiduciary has been required to give bond or if additional security may be required, waived or requested, a statement of the amount of the bond or bonds filed by them, if any, and the names of the sureties thereon;

    e.  the names and relationships of all interested parties; a brief description of the respective interests; whether any of them are minors, incapacitated persons or deceased, and if so the names of their fiduciaries, if any;

    f.  the nature and amount of liens or other claims or charges which are not liens;

    g.  whether or not there is any known objection by any party in interest to the grant of relief requested;

    h.  a full legal description of the subject real estate, together with a recital of the title thereof sufficient to explain the nature and quantum of all interests therein which will or may be affected by the relief requested;

    i.  sufficient facts to enable the court to determine that the sale is desirable for the proper administration and distribution of the estate; and

    j.  an appropriate request for relief, together with a form of order or decree in accordance therewith.

  2. Trustee

    When it is required that a trustee petition the court to sell real property at public sale, the petition, in addition to the requirements of Pennsylvania Orphans’ Court Rule 5.10, shall also set forth in separate paragraphs, the following:

    a.  the name and capacity of the trustee, together with the date and manner of their appointment; how title was acquired, stating the date and place of probate of the will, schedule of distribution, 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 or of the history of the trust (references to specific paragraphs or pages of the exhibit may be incorporated by reference rather than recite in detail the appropriate section of the document);

    c.  the names and relationships of all interested parties; 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;

    d.  the nature and amount of liens or other claims or charges which are not liens;

    e.  whether or not there is any objection by any party in interest to the grant of relief requested;

    f.  a full legal description of the subject real estate, together with a recital of the title thereof sufficient to explain the nature and quantum of all interests therein which will or may be affected by the relief requested;

    g.  the total value of the personal estate for which they are  accountable as shown, for example, in the inventory filed (by the will, deed, or schedule of distribution); a statement of the total proceeds of any real estate previously sold or otherwise disposed of;

    h.  that the trustee is not authorized to sell under the Probate, Estates and Fiduciaries Code, or is denied the power by the trust instrument; or that it is desirable that the sale have the effect of a judicial sale, stating the reasons therefor;

    i.  sufficient facts to enable the court to determine that the proposed sale is for the best interest of the trust; and                                                                                                                                                                                                                              j.  an appropriate request for relief together with a form of order or decree in accordance therewith

  3. Guardian                                                                                                

When it is required that a guardian petition the court to sell real property at public sale, the petition, in addition to the requirements of Pennsylvania Orphans’ Court Rule 5.10, shall set forth in separate paragraphs, the following:

a.  name, date, fiduciary designation and manner of appointment of the guardian. If the petitioner not be the guardian, include the particulars relating to the guardian mentioned above as to the propriety of the court’s entertaining the petition and the granting of relief to the petitioner, rather than to the guardian;

b.  the age of the ward and date of birth;

c.  the names of their next of kin and that notice has been 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 may be required as the court shall by special order in each case designate, if appropriate;

d.  how title was acquired, stating the date and place of probate of the will, the schedule of distribution or recording of the deed; together with a recital of the provisions of the will, schedule of distribution or deed relating to the real estate to be sold;

e.  the nature and extent of the interest of the ward, and of other persons, in the real property, whether any of them are minors, incapacitated persons or deceased and, if so, the names of their fiduciaries, if any;

f.  whether or not there is any objection by any party in interest to the grant of the relief requested;

g.  a full legal description of the subject real estate, together with a recital of the title thereof sufficient to explain the nature and quantum of all interests therein which will or may be affected by the relief requested;

h.  that the guardian is not otherwise authorized to sell under the Probate, Estates and Fiduciaries Code, or is denied the power by the instrument appointing them; or that it is desirable that the sale have the effect of a judicial sale, stating the reasons thereof.  

i.  sufficient facts to enable the court to determine that the proposed sale will be for the best interest of the ward; and

j.  an appropriate request for relief together with a form of order or decree in accordance therewith.

Rule 5.10B                   Joinder and Consent

The court may act upon such applications forthwith and ex parte if all interested parties join therein or if the court is satisfied that the interests of all parties would be served and protected thereby, or may require notice thereof by citation or otherwise, to be served upon all interested parties before action thereon in such particular cases as it shall, by special order, direct.

Rule 5.10C                   Procedure for Public Sale. Security

Upon the entry of an order authorizing a public sale of real estate pursuant to application by any fiduciary subject to the jurisdiction thereof, the court shall also fix the return day therefor. Such sale shall be advertised in such manner, in such newspapers or other media, and for such length of time as shall be required by law and deemed necessary and proper reasonably and practically to obtain the best price possible under all the circumstances, but in any event public notice of such sale shall be advertised at least once a week for three successive weeks in the Bucks County Law Reporter and in one other newspaper of general circulation in the county prior to the sale, and shall be conspicuously posted on the subject real estate. Notice thereof shall also be given to all interested parties at least 20 days before the sale by personal service or by certified mail to their last known address, unless the same shall have been waived in writing or the court, for cause shown, shall dispense therewith.

On or before the return day, a sworn written return of said sale shall be filed with the clerk setting forth the relevant facts concerning the sale and attaching a copy of the agreement resulting therefrom and due proofs of publication and service of other required notices.


Rule 5.10D                   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:

  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. consent by any mortgagee whose lien would otherwise not be discharged by the sale;

  4. agreement of sale;

  5. a full legal description of the subject real estate, together with a recital of the title thereof sufficient to explain the nature and quantum of all interests therein which will or may be affected by the relief requested; and

  6. any other instrument which may be material to the application for public sale.

                

Rule 5.11A         Private Sale of Real Property or Options Therefor

When a personal representative, trustee or guardian requires court approval for a private sale, exchange or option of real estate, in addition to the requirements of Pennsylvania Orphans’ Court Rule 5.11, a petition for approval shall comply with requirements of Bucks County Orphans’ Court Rules 5.10 A, B and D.

Rule 5.11B                   Petition to Fix or Waive Additional Security.                                                                             Personal Representative. Other Fiduciary

  1. Form of Petition

In a sale of real estate, whether public or private, by a personal representative, or by other fiduciary, without benefit of an order of court directing or authorizing such sale, where they were required to give bond as such personal representative or other fiduciary, they shall present their petition to the court 

before the proceeds of the sale are paid to them by the purchaser. The petitioner shall comply with Bucks County Orphans’ Court Rules 5.10A and B, as applicable, and, in addition shall:

      a.  attach exhibits required by Bucks County Rule 5.10;
      b.  attach a full legal description of the subject real estate, together with a recital of the title thereof sufficient to explain the nature and quantum of all interests therein which will or may be affected by the relief requested;
      c.  include a prayer for an order fixing the amount of additional security or for an order excusing them from filing additional security, as the case may be; and
     d.  attach an appropriate form of order or decree.

  2.  Surety on Additional Bond

The surety on any additional bond, except for cause shown, shall be the same as on the original bond. All bonds for additional security shall be filed with the clerk.

Rule 5.12A                   Mortgage or Lease of Real Property

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; 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.

2.  Exhibits

The following exhibits shall be attached to the petition:

a.  a copy of the will, deed, or decree by which the fiduciary was appointed;

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
other relevant documents—such as mortgage commitment.

3.  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.

4.  Surety
     When an order of the court shall require the entry of additional security, the surety thereon, except for cause shown, shall be the same as on the original bond. All bonds for additional security shall be filed with the clerk.

Rule 5.16A                   Petition to Settle Wrongful Death and Survival Actions

  1. For information regarding Petition to Settle Wrongful Death and Survival Actions see Bucks County Rule of Civil Procedure 2205*(a)-(b).

    Rule 5.17A                   Petition for Leave to Compromise Minor’s Action

              For information regarding Petition for Leave to Compromise Minor's Action see Bucks County Rule of Civil Procedure 2039(a)*(1).


Rule 5.16A                   Petition to Settle Wrongful Death and Survival Actions

For information regarding Petition to Settle Wrongful Death and Survival Actions see Bucks County Rule of Civil Procedure 2205*(a)-(b).

Rule 5.17A                   Petition for Leave to Compromise Minor’s Action

          For information regarding Petition for Leave to Compromise Minor's Action see Bucks County Rule of Civil Procedure 2039(a)*(1).