Chester Cnty. C.P. Court of Common Pleas Orphan's Court Rules 7

Rule L5.8.(c) Exhibits for a Petition to Discharge Fiduciary and Surety.

Written consent of the surety, if any, shall be attached to the petition, along with orders to satisfy

awards from all other parties shall be submitted with the petition.

Rule L5.10.(c) Public Sale, Contents of Petition, Additional Requirements.

(1) A petition by a personal representative to sell real property at public sale, under the Code,

shall also set forth in separate paragraphs:

(i) 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;

(ii) 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;

(iii) 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;

(iv) If the personal representative entered bond with the Register, the name of the surety and

the amount of such bond;

(v) The names and relationships of all interested parties, 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 appointment of their fiduciaries;

(vi) 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

(vii) Sufficient facts to enable the Court to determine that the sale is desirable for the proper

administration and distribution of the estate.

(2) A petition by a trustee to sell real property at public sale, under the Code, shall also set

forth in separate paragraphs:

(i) How title was acquired, stating the date and place of probate of the will or recording of

the deed;

(ii) 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;

(iii) The names and relationships of all interested parties, 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;

(iv) The improvements on the property, by whom it is occupied, its rental value and current

tax assessment;

(v) 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(s); and

(vi) Sufficient facts to enable the Court to determine that the proposed sale is for the best

interests of the trust.

(3) A petition by a guardian to sell real property at public sale, under the Code, shall also set

forth in separate paragraphs:

(i) The age of the ward;

(ii) 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 the Pennsylvania Orphans’ Court Rules

and the Chester County Orphans’ Court Rules must be given and proofs thereof must

be attached to the petition as an exhibit;

(iii) How title was acquired, stating the date and place of probate of the will or recording of

the deed;

(iv) A recital of the provisions of the will or deed relating to the real property to be sold;

(v) The nature and extent of the interest of the ward, and of other persons in the real

property;

(vi) The improvements on the property, by whom it is occupied, its rental value and current

tax assessment; and

(vii) Sufficient facts to enable the Court to determine that the proposed sale will be for the

best interest of the ward.

Rule L5.10.(d) Public Sale of Real Property Petition 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 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 licensed real estate appraiser.

Rule L5.10.(e) Decree.

Upon presentation of a public sale of real estate petition, 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 L5.10.(f) Notice and Return.

(1) After the allowance of a petition for public sale of real property, the public sale shall be

advertised.

(2) A return of public sale of real property for the purpose of an approval or confirmation by

the Court shall include an affidavit, which shall set forth:

(i) The advertisement made;

(ii) The name and address of the purchaser and that said purchaser was the highest bidder;

and

(iii)As an attachment, a complete copy of the written agreement of sale.

Rule L5.10.(g) 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 L5.10.(h) Petition to Fix or Waive Additional Security, Personal Representative,

Trustee.

(1) In a public sale 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, he/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:

(i) The date of death of the decedent;

(ii) The date of the petitioner’s appointment;

(iii) The amount of the bond(s) filed by the petitioner(s) and the date of such filing and

the name(s) of the petitioner’s surety;

(iv) 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;

(v) A short description of the real property sold, the name of the purchaser and the

amount of the consideration to be paid;

(vi) 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

(vii) In those cases in which waiver of additional security is sought, the consent of the

interested parties 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.

(viii) Petitioner(s) shall attach, at the time of filing, a preliminary decree to the petition.

(2) The surety on any additional bond except for cause shown shall be the same as on the

original bond.

Rule L5.11.(c) Private Sale of Real Property Petition Additional 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 interested parties, 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 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 L5.11.(d) 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 L5.11.(e) Petition to Fix or Waive Additional Security, Personal Representative,

Trustee.

(1) In a private sale 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, he/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:

(i) The date of death of the decedent;

(ii) The date of the petitioner’s appointment;

(iii) The amount of the bond(s) filed by the petitioner(s) and the date of such filing and the

name(s) of the petitioner’s surety;

(iv) 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;

(v) A short description of the real property sold, the name of the purchaser and the amount of

the consideration to be paid;

(vi) 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

(vii) In those cases in which waiver of additional security is sought, the consent of the

interested parties 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.

(viii) Petitioner(s) shall attach, at the time of filing, a preliminary decree to the petition

(2) The surety on any additional bond except for cause shown shall be the same as on the original

bond.

Rule L5.12.(c) Mortgage or Lease of Real Property, Additional Requirements.

(1) A petition to mortgage or lease real property by a personal representative, trustee or

guardian, shall confirm 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) The following exhibits shall be attached to the petition where applicable:

(i) A copy of the will, deed, or decree by which the fiduciary was appointed;

(ii) Consents to the mortgage or lease signed by those interested parties 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;

(iii) A statement by the proposed mortgagee agreeing to grant the mortgage loan; and,

(iv) An appraisal by a licensed real estate appraiser of the real property on which the

proposed mortgage is to be secured.

(3) 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.

Rule L5.50.(e) Additional Petition Requirements to Settle Small Estate.

(1) Petitions for settlement of small estates under the Code, shall set forth:

(a) The date of birth, 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;

(b) 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 the Code, or otherwise, and whether any of them are minors,

incapacitated persons, or deceased, with the names of their fiduciaries, if any;

(c) 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) 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;

(i) A copy of the inheritance tax return and, if applicable, proof of payment; and

(ii) A copy of any notice given.

(3) No appraisement shall be required unless ordered by the Court.

Chapter VII Rules Relating to Pre-hearing and Hearing Procedure

Rule L7.1. Discovery

In matters where all parties are in agreement as to discovery, a written stipulation shall be filed

with the Court for its approval by stipulated order within a reasonable time prior to the proposed

commencement of discovery. The stipulation must be signed by all parties or their counsel and

must provide specific stipulations as to the nature and extent of the discovery as well as a

timetable for completion of the discovery. Before entering into such discovery stipulation, the

parties must consider how discovery related expenses will adversely impact the subject estate or

trust and make a good faith effort to mitigate that impact.

In matters where the parties are unable to exchange discovery by agreement and are seeking to

compel discovery, the parties should anticipate that the Court will limit discovery when it

appears that the subject estate or trust will be unduly depleted by discovery related expenses.

Chapter IX Auditors and Hearing Officers

Rule L9.1. Notice of Hearings

Auditors and hearing officers shall give at least twenty (20) days’ notice of hearings held by

them to all interested parties or to their attorneys of record in the manner provided in the

Pennsylvania Orphans’ Court Rules. Notice of succeeding hearings given by the auditor or

hearing officer at a hearing of which proper notice has been given shall constitute sufficient

notice of such succeeding hearings.

Rule L9.6. Report Notice and Objections

An auditor or hearing officer shall give notice of the filing of the report by sending a copy of the

report to all parties of record. Any interested party shall have the right to file an objection(s) to

such report within a period of twenty (20) days of the filing of the report. If an objection is filed,

either party may request that the objection(s) be listed for argument. If an objection is not filed

within twenty (20) days of the report filing, or if any such objections are overruled, the Court

may enter a decree confirming the auditor’s report or adopting the hearing officer’s report.

Chapter X Register of Wills 5

Rule L10.4.(a) Filing Petition for Appeal.

(1) A person or entity desiring to take an appeal from the judicial acts or proceedings of the

Register, shall file a petition for appeal with the Register, specifying the issues on which

it is based, stating whether there is a request that disputed issues of fact be submitted to a

jury, setting forth the names of all interested parties, and reciting the necessary

jurisdictional facts.

(2) When a petition for appeal has been filed, the Register shall transmit the record to the

Clerk.

Rule L10.8. Renunciations

Any renunciation executed outside the Register’s office must be executed in the presence of a

Notary Public.

For any disputed matters, all attorneys and parties are required to comply with Rule L1.6.

Chapter XIV Guardianships of Incapacitated Persons 6

Rule L14.2.(a) Petition, Additional Requirements.

(17) The petition for guardianship 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, the identity and address of such person.

(18) The proposed guardian’s written consent to his or her appointment as guardian shall be

attached to the petition.

Rule L14.2.(g) Proof of Service of Petition and Citation with Notice.

An affidavit of service of the petition and the citation with notice shall be filed with the Clerk at

least seven (7) days prior to the hearing date.

Rule L14.15. Bonds for Guardians

If bond is required of an appointed guardian, the Clerk shall not issue a copy of the guardianship

order to the guardian until the bond has been filed. The Clerk may provide a non-certified copy

of the order to the potential bonding company in order to facilitate the issuance of the bond.

Rule L14.16. Guardian Accounts

(a) Guardian’s accounts filed for audit shall conform with Ches. Co. O.C. Rule L2.1.(e).

(b) 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.

(c) Notice of the filing of the account shall be given as required by the Pennsylvania

Orphans’ Court Rules and any applicable local rule described herein. In all cases, notice

shall be given to individuals entitled to notice under the Code.

Rule L14.17. Testamentary Writings

A person who possesses an original testamentary writing of an incapacitated person shall file it

with the Clerk no later than by the time the guardian’s inventory is required to be filed. The

testamentary writing received by the Clerk shall be impounded until further order of Court.

Forms pertaining to guardianships are available with the Clerk and on the Clerk’s website:

www.chesco.org/wills.

Chapter XV Adoptions

Rule L15.4.(b)(4) Comment: Given the concerns of the court prior to terminating parental

rights, petitioner(s) must demonstrate diligent efforts in identifying and/or serving the

person whose parental rights are sought to be terminated prior to the court authorizing

service by publication (e.g., mere failure of a sheriff to serve an individual at the presumed

address is insufficient).

Rule L15.4.(c) Additional Time for Notice.

Notice shall be provided at least twenty (20) days prior to the date of the hearing for the listed

proceeding.

Rule L15.7.(d) Appearance of Intermediary.

In a voluntary relinquishment to an agency proceeding, the Court requires the appearance of a

representative of the agency(ies) or individual(s) who, has acted as the intermediary, unless

excused by the Court.

Rule L15.12.(f) Hearing Evidence to Determine Adoptee’s Consent.

(2)(C) For any petition brought to approve a post-adoption contract agreement where the

adoptee is at least twelve (12) years old and/or any of the adoptee’s minor siblings has

signed a separate consent agreeing to the proposed contact agreement, a hearing shall be

held for the court to determine whether the signing minor voluntarily consented to the

proposed contact agreement and fully understood the terms of the proposed agreement,

and whether the proposed agreement is in the adoptee’s best interests.

Rule L15.13.(a) Petition.

(6)(i) If the report of the intermediary or the investigator is not filed within four (4) months of

the filing of the Report of Intention to Adopt (or the appointment of the investigator), the

Court, on motion of any party or on its own initiative, may issue a rule upon the

intermediary or investigator to appear and show cause why the report has not been filed.

(7)(i) If there is not an 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 person 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 person(s) 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.

Rule L15.13.(b) Exhibits.

(9) All intermediaries, other than the Chester County Department of Children, Youth and

Families, shall submit with the report of intention to adopt, an itemized report disclosing all

adoption-related fees, expenses, and charges. No investigator will be appointed and no

hearings will be scheduled until this information has been filed. Counsel shall certify on the

report offered into evidence that the adopting parent(s) has been given a copy of the report

and fees.

Rule L15.13.(d) Investigation.

(1) 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 may not require an

investigation by a court-appointed investigator. In all other cases, with the exception of

those treated differently by statute, 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.

(2) For any adoption brought pursuant to 23 Pa.C.S. § 2701 et seq. the Court may order a

home-study investigation (even if the adoptive parents would be exempt pursuant to 23

Pa.C.S. § 2531(c)) or appoint a GAL if it would assist the Court to determine whether the

adoption would be in the child’s best interest. Costs for the home-study and GAL shall be

borne by the petitioner(s)/adoptive parent(s). See 23 Pa.C.S. § 2535(c)

(3) In all adoptions brought pursuant to 23 Pa.C.S. § 2701 et seq. and Pa.R.O.C.P. 15.13

where the child to be adopted was born in a foreign country and the adoption has not been

brought or cannot be brought pursuant to Pa.R.O.C.P. 15.14 (Registration of a Foreign

Adoption) or Rule 15.15 (Adoption of a foreign born child) the petitioner(s)/adoptive

parent(s) (even if the adoptive parents would be exempt pursuant to 23 Pa.C.S. § 2531(c))

shall file a report of intention to adopt (see Pa. C.S. §§ 2535 and 2724) and submit to a

home-study investigation. The court may also appoint a GAL to assist the court determine

whether the adoption would be in the child’s best interest. Costs for the home-study and

GAL shall be borne by the petitioner(s)/adoptive parent(s). (See 23 Pa.C.S. § 2535(c))

Rule L15.15.(d) Judicial Review and Hearing.

(2)(i) If the submitted home-study is dated more than one (1) year prior to the filing date of

the petition, an updated home-study review is required (even if the adoptive parents would

be exempt pursuant to 23 Pa.C.S. § 2531(c)) and the Court may appoint a GAL if it would

assist the court determine whether the adoption would be in the child’s best interest. Costs

for the home-study and GAL shall be borne by the petitioner(s)/adoptive parent(s). See 23

Pa.C.S. § 2535(c).