DECEDENT’S ESTATES & TRUSTS

Somerset Legal Journal headnotes from approximately 1991 through the present.

For earlier cases, please visit the Somerset County Law Library.

 

AMBIGUITY

 

The gift must be expressed in the will and may not be established by extrinsic evidence.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005). 

 

There are two types of ambiguity: patent and latent...A patent ambiguity appears on the face of the document and is a result of defective or obscure language.  A latent ambiguity arises from collateral facts which make the meaning of a written document uncertain, although the language appears clear on the face of the document.  To determine whether there is an ambiguity, it is proper for a court to hear evidence from both parties and then decide whether there are objective indications that the terms of the document are subject to different meanings.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

Where a latent ambiguity exists we have repeatedly held that parol evidence is admissible to explain or clarify the ambiguity, irrespective of whether the latent ambiguity is created by the language of the Will or by extrinsic or collateral circumstances.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

Extrinsic evidence of surrounding facts must only relate to the meaning of ambiguous words of the will.  It cannot be received as evidence of testator's intention independent of the written words employed.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

Because the word "income" has differing meanings, a latent ambiguity arises from the decedent's use of the word "income" in his will, and extrinsic evidence may be used to determine the testator's intent.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

Admission of extrinsic evidence is proper to explain or clarify an ambiguity in a will, irrespective of whether the ambiguity is created by the language of the will or by extrinsic or collateral circumstances. Beverly Rest, Co-Executor, and Steve Dansak, Co-Executor of the Estate of Wilson C. Fox, v. Glenn Fox, Jr. 65 Som.L.J. 356 (2014)(Klementik, J.)

 

ACCOUNTS AND ADMINISTRATION (tax problems)

 

The sole focus of 72 P.S. §9144(a) is to state the rule that the tax on specific bequests in a Will are to be paid from the residuary estate, unless a contrary intent appears.  Further, the Personal Representative [Executor] is responsible for the payment of the tax on specific bequests, and if he fails to do so, the recipient of the residuary estate must pay the tax. Section 9144(f) deals with both probate and non-probate transfers in that it refers to "will or other instrument of transfer".  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

While the law presumes that testators most likely want transferees of bequests to bear attendant inheritance tax burdens, testators are free to allocate the burdens otherwise.  A testator's intent to allocate inheritance tax in a particular fashion must be unambiguous and open to no other interpretation.  In re Estate of Fleishman, 388 A.2d 1077, 1080-81 (Pa. 1978).  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.)  

 

In the absence of direction by the testator, 20 Pa. C.S.A. § 3702(a) requires the Federal estate taxes to be equitably apportioned among all parties interested in property includable in the gross estate.  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

The Court's inquiry must focus on whether the testator's will adequately directed how the Federal estate tax was to be apportioned if the statutory scheme was to be altered.  In re Estate of Pyle, 570 A.2d 1074, 1076 (Pa. Super. 1990).  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

The Berkey Will is much more closely analogous to the will in Pyle than the will in Fleishman.  Paragraph “First” merely directs that the taxes due on the estate will be paid from the "gross assets" of the estate, but does not specifically detail a payment plan that alters the statutory scheme.  Therefore, we agree with the Commonwealth that Paragraph “First” does not, in a clear and unambiguous manner, subject to no other interpretation, direct the Estate to apportion the inheritance taxes contrary to the statutory scheme.  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

After reviewing the Account provided by the Estate, we agree with the Commonwealth's position that the Account does not conform to the requirements of Rule 6.1.  The Account lists the various credits and debits made to the Estate, but fails to summarize the amount received from or paid to any one entity.  It is up to the interested party to review the entire Account, and calculate the amounts himself in order to discern any totals in any particular category.  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

A distribution section should provide a summary of the total amounts previously advanced to each beneficiary and the proposed additional amount contemplated with confirmation of the account.  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

BENEFICIARY

 

Unless the testator indicated a different intention, any devise, gift or grant contained in any will made before or after such merger or consolidation of tow domestic non profit corporations, to or for any of the constituent corporations shall inure to the surviving or new corporation.  In Re: Estate of Mildred M. Shultz, 61 Som.L.J. 41 (2003) (Cascio, J.). 

 

Where devise in a will precludes a devisee corporation’s taking under the will in the event that the devisee corporation has “dissolved”, the pertinent inquiry that a court must make when distributing the property devised in the will is whether the devisee corporation continues to operate or exist.  Unless the testator indicated a different intention.  In Re: Estate of Mildred M. Shultz, 61 Som.L.J. 41 (2003) (Cascio, J.).

 

CHARITABLE GIFTS

 

Although the Attorney General of Pennsylvania must be made a party of record in every proceeding which affects a legacy to charitable institution, 20 Pa.C.S.A. 6110 (2002), such procedure is not required where the amount of the legacy is less than $ 25,000.00 Pa.O.C.R. 5.5, Committee Comment.  In Re: Estate of Mildred M. Shultz, 61 Som.L.J. 41 (2003) (Gibson, J.).

 

ELECTIVE SHARE OF SPOUSE

 

The right of elective share of the surviving spouse may be exercised by her attorney in fact; the final approval of that election is within the court's authority and discretion.  In Re: Estate of William J. Miller, 51 Som.L.J. 369 

 

The orphan's court division of the county of the decedent's domicile shall determine all matters concerning the spouse's election.  In Re: Estate of William J. Miller, 51 Som.L.J. 369 

 

If requested before the expiration of six months after the decedent's death or before the expiration of six months after the date of probate, whichever is later, the orphans court division of the county where the decedent died domiciled may extend the time for filing an election to take against the decedent's will, for such period and upon such terms and conditions as the court shall deem proper.  In Re: Estate of William J. Miller, 51 Som.L.J. 369

 

Although 20 Pa.C.S.A. 5602(a)(4) provides that a principal may expressly empower an attorney-in-fact to claim an elective share of the estate of the principal's deceased spouse, general language can show a similar intent, if the general language, according to its common usage, would be understood as encompassing such power or powers.  In Re: Estate of William J. Miller, 51 Som.L.J. 369

 

JOINT (SURVIVORSHIP) ACCOUNTS

 

Disposition of funds contained in joint bank accounts is governed by the provisions of Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§6301 - 6306.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

20 Pa.C.S. §6304(a) states that any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The effect of 20 Pa.C.S. §6304(a), when read with the definition of "joint account" in 20 Pa.C.S.A. §6201(4), is to make an account, payable to one or more or two or more parties, a survivorship arrangement unless clear and convincing evidence of a difference contention is offered.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

There is an assumption that most persons who use joint accounts want the survivor or survivors to have all balances remaining at death.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The statute 20 Pa.C.S. §6304 favors the surviving party over the estate of the decedent.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The legislature has created a statutory presumption that survivorship rights are intended when a joint account is created. 20 Pa.C.S. §6304.  The presumption can be overcome only by clear and convincing evidence of a contrary intent.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The burden of establishing a contrary intent is on the party who opposes the presumption of survivorship.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

20 Pa.C.S. §6304(c) also provides a means by which a party may clearly demonstrate an intent not to create a survivorship account.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

Two well established legal principles guide the determination of the decedent's intention to create a joint account: (1) execution of a signature card creating a joint savings account with a right of survivorship is sufficient to establish an inter vivos gift to the joint tenant by the depositor of the funds; (2) introduction into evidence of a duly executed joint account signature card shifts the burden of proof to those who seek to bar enforcement of the survivorship terms of the writing and they must meet that burden with clear, precise and convincing evidence.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

LAPSE

 

Because the lapse of a gift in a will is generally disfavored in the law, Pennsylvania has long had an anti-lapse statute.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005). 

 

Where a legacy or devise which lapses or fails constitutes the whole of a residuary gift, the subject matter thereof passes to the testator's heirs as intestate property.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005).  

 

When the entire residue lapses, distribution will be made in accordance with Probate, Estate, and Fiduciary code § 2101-2114.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005).

 

PERSONAL REPRESENTATIVE – COMPENSATION

 

The court shall allow compensation to the personal representative as shall in the circumstances be reasonable and just, and may calculate such compensation on a graduated percentage.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio)

 

The executor bears the burden of proving reasonableness of his or her commissions.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio)

 

A fiduciary is entitled to reasonable and just compensation for the services he provides. Thus, the fiduciary's entitlement to compensation should be based upon actual services rendered and not upon some arbitrary formula.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio) 

 

The determination of what is a fair and reasonable fee requires a thorough review of the facts and circumstances of the particular estate.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio)

 

It is only in very exceptional cases that an exceptant to the account of an executor, administrator or trustee in the Orphan's Court will be allowed counsel fees out of the fund.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio)

 

In order to qualify for payment of counsel fees out of the estate, the exceptant must establish that his intervention actually caused assets to be brought into the estate, as opposed to a mere change in the distribution of assets already a part of the estate.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio)

 

Where no new assets or additional funds were created for the estate as a result of filing exceptions, payment of counsel fees is inappropriate.  In Re: Estate of Friedline, 52 Som.L.J. 140 (1993) (Cascio)

 

PERSONAL REPRESENTATIVE – GENERALLY

 

As provided in 20 Pa.C.S.A. §3182, an orphan's court shall have exclusive power to remove a personal representative.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

The decision of an orphan's court to remove or surcharge is a drastic action, which should only be taken when the estate is actually endangered, particularly when the trustee has been selected by the testator.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

Pennsylvania law disqualifies a slayer from serving as the personal representative of the victim's estate.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

20 Pa.C.S.A. § 4301 provides: Whenever and for so long as any fiduciary is in military service, in other government service, in a position of conflicting interest or in any situation where his functioning as a fiduciary for a temporary period may not be in the best interests of the estate, the court having jurisdiction over such fiduciary shall have the power in its discretion: (1) to authorize the cofiduciary or cofiduciaries, if any, to exercise all of specified powers of the incapacitated fiduciary, whether discretionary or ministerial; or (2) to appoint a substituted fiduciary pro tem to act in place of the incapacitated fiduciary and to authorize the substituted fiduciary pro tem to exercise all or specified powers and discretion of the incapacitated fiduciary.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

According to 20 Pa.C.S.A. § 4302, relief under 20 Pa.C.S.A. §4301 may be sought by petition filed by any party in interest.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

According to 20 Pa.C.S.A. § 4305, the fiduciary who is subject to an order entered under §4301 is prohibited from exercising any of his or her fiduciary powers and is shielded from liability for the acts of the co-fiduciary or substitute fiduciary during the period specified in the order, but remains liable for his or her actions relative to the estate both before and after the disqualification period.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

The fact that only a personal representative may institute civil litigation on behalf of the decedent does not hinder or conflict with the wife's right to settle her husband's estate pursuant to 20 Pa.C.S. § 3102 since that section expressly provides that a court may order distribution in a small estate whether or not letters have been issued. In Re Estate of Paul R. Baer, 63 Som.L.J. 222 (2007) (Klementik)

 

POWERS OF ATTORNEY

 

Although 20 Pa.C.S.A. 5602(a)(4) provides that a principal may expressly empower an attorney-in-fact to claim an elective share of the estate of the principal's deceased spouse, general language can show a similar intent, if the general language, according to its common usage, would be understood as encompassing such power or powers.  In Re: Estate of William J. Miller, 51 Som. 369

 

PROBATE CODE § 2101 – 2114: INTESTATE SUCCESSION

 

When the entire residue lapses, distribution will be made in accordance with Probate, Estate, and Fiduciary code § 2101-2114.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005).

 

PROBATE CODE § 3101 – 3184: LETTERS, PERSONAL REPRESENTATIVE, ETC.

 

As provided in 20 Pa.C.S.A. §3182, an orphan's court shall have exclusive power to remove a personal representative.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.)

 

The purpose of 20 Pa.C.S. § 3102 is to provide the court a means by which it can easily distribute the assets of a smaller estate, and dispense with some of the formalities imposed under other sections of the Probate Code, such as appointing a personal representative to manage the estate.  In Re Estate of Paul R. Baer, 63 Som.L.J. 222 (2007) (Klementik)

 

Section 3373 of the Probate Code provides that an action to enforce any right that survives a decedent may be brought by his personal representative. In Re Estate of Paul R. Baer, 63 Som.L.J. 222 (2007) (Klementik)

 

We hold that decedent's wife lacks standing to pursue litigation on her husband's behalf unless and until she is appointed as the personal representative of her husband's estate. In Re Estate of Paul R. Baer, 63 Som.L.J. 222 (2007) (Klementik)

 

The fact that only a personal representative may institute civil litigation on behalf of the decedent does not hinder or conflict with the wife's right to settle her husband's estate pursuant to 20 Pa.C.S. § 3102 since that section expressly provides that a court may order distribution in a small estate whether or not letters have been issued. In Re Estate of Paul R. Baer, 63 Som.L.J. 222 (2007) (Klementik)

 

PROBATE CODE § 4301 – 4306: TEMPORARY FIDUCIARIES

 

20 Pa.C.S.A. § 4301 provides: Whenever and for so long as any fiduciary is in military service, in other government service, in a position of conflicting interest or in any situation where his functioning as a fiduciary for a temporary period may not be in the best interests of the estate, the court having jurisdiction over such fiduciary shall have the power in its discretion: (1) to authorize the cofiduciary or cofiduciaries, if any, to exercise all of specified powers of the incapacitated fiduciary, whether discretionary or ministerial; or (2) to appoint a substituted fiduciary pro tem to act in place of the incapacitated fiduciary and to authorize the substituted fiduciary pro tem to exercise all or specified powers and discretion of the incapacitated fiduciary.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

According to 20 Pa.C.S.A. § 4302, relief under 20 Pa.C.S.A. §4301 may be sought by petition filed by any party in interest.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

According to 20 Pa.C.S.A. § 4305, the fiduciary who is subject to an order entered under §4301 is prohibited from exercising any of his or her fiduciary powers and is shielded from liability for the acts of the co-fiduciary or substitute fiduciary during the period specified in the order, but remains liable for his or her actions relative to the estate both before and after the disqualification period.  In Re: Estate of Betty H. Stahl, 60 Som.L.J. 376 (2003) (Cascio, J.). 

 

PROBATE CODE § 5601 - 5611: POWERS OF ATTORNEY

 

Although 20 Pa.C.S.A. 5602(a)(4) provides that a principal may expressly empower an attorney-in-fact to claim an elective share of the estate of the principal's deceased spouse, general language can show a similar intent, if the general language, according to its common usage, would be understood as encompassing such power or powers.  In Re: Estate of William J. Miller, 51 Som.L.J. 369

 

PROBATE CODE § 6101 – 6118: ESTATES

 

Although the Attorney General of Pennsylvania must be made a party of record in every proceeding which affects a legacy to charitable institution, 20 Pa.C.S.A. 6110 (2002), such procedure is not required where the amount of the legacy is less than $ 25,000.00 Pa.O.C.R. 5.5, Committee Comment.  In Re: Estate of Mildred M. Shultz, 61 Som.L.J. 41 (2003) (Gibson, J.).

 

PROBATE CODE § 6301 – 6306: MULTIPLE PARTY ACCOUNTS

 

Disposition of funds contained in joint bank accounts is governed by the provisions of Chapter 63 of the Probate, Estates and Fiduciaries Code, 20 Pa.C.S. §§6301 - 6306.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

20 Pa.C.S. §6304(a) states that any sum remaining on deposit at the death of a party to a joint account belongs to the surviving party or parties as against the estate of the decedent unless there is clear and convincing evidence of a different intent at the time the account is created.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The effect of 20 Pa.C.S. §6304(a), when read with the definition of "joint account" in 20 Pa.C.S.A. §6201(4), is to make an account, payable to one or more or two or more parties, a survivorship arrangement unless clear and convincing evidence of a difference contention is offered.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The statute 20 Pa.C.S. §6304 favors the surviving party over the estate of the decedent.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The legislature has created a statutory presumption that survivorship rights are intended when a joint account is created. 20 Pa.C.S. §6304.  The presumption can be overcome only by clear and convincing evidence of a contrary intent.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

The burden of establishing a contrary intent is on the party who opposes the presumption of survivorship.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

20 Pa.C.S. §6304(c) also provides a means by which a party may clearly demonstrate an intent not to create a survivorship account.  In Re: Estate of Wacker, 61 Som.L.J. 189 (2003) (Cascio, J.) 

 

TESTATOR’S INTENT

 

One who writes a will is presumed to intend to dispose of his estate and not to die intestate as to any portion thereof.  If possible to do so, a will must be construed to avoid an intestacy.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005).  

 

A testator's intent, unless unlawful, shall prevail; that intent shall be ascertained from a consideration of (a) all the language contained in his will, and (b) his scheme of distribution, and (c) the circumstances surrounding him at the time he made his will, and (d) the existing facts; and (e) canons of construction will be resorted to only if the language of the will is ambiguous or the testator's intent for any reason uncertain.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005).  

 

It is a general canon on construction that words of survivorship in a will refer to the death of the testor.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005).  

 

When the legatee or devisee predeceases the testator, the share of such beneficiary passes to the person or persons to whom the testator directs if such provision for a gift appears in the will.  In re: Estate of Harvey R. Ohler, 62 Som.L.J. 97 (Upor, J. 2005). 

 

No rule is more settled in regard to wills than the general rule that the testator's intent, if not unlawful, must prevail.  Pennsylvania case law has consistently held that the testator's intent is the pole star in interpreting every will and that intent must be ascertained from the language chosen by the testator.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

Courts will not search for the testator's intent beyond "the four corners of his will" when the language used by the testator is sufficiently clear and unambiguous so as to lead the court to believe it can with reasonable certainty effect a distribution in accordance with the testator's desires.  Griffith v. Firestone, 63 Som.L.J. 55 (2006) (Fike, P.J.).

 

Drawing from Fleishman, in order to find the intent to alter the statutory scheme, the language used in the Berkey Will must clearly establish an allocation of the tax burden, otherwise it will remain where the law places it.  In re Dravo's Trust, 131 A.2d 351, 353 (Pa. 1957).    In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

The testator must use specific language in order to establish a contrary intent; in the absence of such language, a contrary intent will not be implied.  In re Estate of Pyle, 570 A.2d 1074, 1077 (Pa. Super. 1990).  In Re: Estate of William Berkey, 62 Som. L.J. 341 (2006) (Klementik, J.) 

 

The only reasonable interpretation of the disputed phrase “personal property” in the second paragraph of the will, taking into account the scheme of distribution, the circumstances surrounding the execution of the will, and other facts bearing on the question, is that the testatrix intended her niece to enjoy all of the tangible personalty only and the residue of intangible personalty after use of the residue to pay for the costs attendant to the estate as well as the inheritance tax thereon is to be distributed to Plaintiff. In Re Jean H. Tate Estate, 63 Som.L.J. 442 (2008)(Klementik, J.)