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RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 41063
Experience:  Texas lawyer for 30 years in Estate law
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We just completed a hearing in probate court, Its obvious

Customer Question

We just completed a hearing in probate court, Its obvious the Judge is going to rule in my favor, he as much said so, as to the intent of the will. one member of my family says he is going to appeal, we have not got the written decision yet? and he's filing a brief for appeal? what is the general basis for a appeal. this case was negotiated and agreed to by all parties, but the one standing issue? The judge last words to that party were ( your not going to like my decision )
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.

Hi and welcome to JA. I am Ray and will be the expert helping you tonight.

Here talk is cheap as they say.Once the judgment is entered they would have to file notice of appeal and bond and meet all the requirements time wise.

It is virtually impossible for a non lawyer to successfully appeal a decision like this. There are specific time deadlines if they miss them or filing the bond timely they dismiss the appeal.

If you have an estate lawyer here your lawyer waits to see if he can properly perfect the appeal, if not he gets it dismissed.

Expert:  RayAnswers replied 1 year ago.

Rule he must comply with..

Rule 342. Appealable Orphans’ Court Orders.

(a) General rule. An appeal may be taken as of right from the following orders of the Orphans’ Court Division:

(1) An order confirming an account, or authorizing or directing a distribution from an estate or trust;

(2) An order determining the validity of a will or trust;

(3) An order interpreting a will or a document that forms the basis of a claim against an estate or trust;

(4) An order interpreting, modifying, reforming or terminating a trust;

(5) An order determining the status of fiduciaries, beneficiaries, or creditors in an estate, trust, or guardianship;

(6) An order determining an interest in real or personal property;

(7) An order issued after an inheritance tax appeal has been taken to the Orphans’ Court pursuant to either 72 Pa.C.S. § 9186(a)(3) or 72 Pa.C.S. § 9188, or after the Orphans’ Court has made a determination of the issue protested after the record has been removed from the Department of Revenue pursuant to 72 Pa.C.S. § 9188(a); or

(8) An order otherwise appealable as provided by Chapter 3 of these rules.

(b) Definitions. As used in this rule:

(1) ‘‘estate’’ includes the estate of a decedent, minor, incapacitated person, or principal under Chapters 33, 35, 51, 55 and 56 of Title 20 of the Pennsylvania Consolidated Statutes (‘‘Probate, Estates and Fiduciaries Code’’) (‘‘PEF Code’’);

(2) ‘‘trust’’ includes inter vivos and testamentary trusts and the ‘‘custodial property’’ under Chapters 53 and 77 of the PEF Code; and

(3) ‘‘guardianship’’ includes guardians of the person for both minors and incapacitated persons under Chapters 51 and 55 of the PEF Code.

(c) Waiver of objections. Failure to appeal an order that is immediately appealable under paragraphs (a)(1)—(7) of this rule shall constitute a waiver of all objections to such order and such objections may not be raised in any subsequent appeal.

Official Note

In 1992, the Supreme Court amended Rule 341 to make clear that, as a general rule, a final order is an order that ends a case as to all claims and all parties. Because of this amendment, many Orphans’ Court orders that may have been considered constructive final orders prior to 1992 became unappealable interlocutory orders. Although some Orphans’ Court orders were construed by case law to be appealable as collateral orders, see Estate of Petro, 694 A.2d 627 (Pa. Super. 1997), the collateral order doctrine was neither consistently applied nor was it applicable to other Orphans’ Court orders that previously had been considered final under the ‘‘final aspect’’ doctrine. See, e.g. Estate of Habazin, 679 A.2d 1293 (Pa. Super. 1996).

In response, the Supreme Court revised Rule 342 that initially permitted appeals from Orphans’ Court orders concerning distribution even if the order was not considered final under the definition of Rule 341(b). In 2001, Rule 342 was amended to also allow appeals from orders determining an interest in realty or personalty or the status of individuals or entities, in additional to orders of distribution, if the Orphans’ Court judge made a determination that the particular order should be treated as final. In 2005, the Supreme Court amended Rule 342 again, adding subdivision (2) to clarify that Rule 342 was not the exclusive method of appealing Orphans’ Court orders.

Also, in 2005, the Supreme Court amended Rule 311 to provide for an interlocutory appeal as of right from an order determining the validity of a will or trust. See former Rule 311(a)(8). Such an order needed to be immediately appealable and given finality so that the orderly administration of the estate or trust could proceed appropriately.

Since 2005, it has become apparent that other adversarial disputes arise during the administration of an estate, trust or guardianship, and that orders adjudicating these disputes also must be resolved with finality so that the ordinary and routine administration of the estate, trust or guardianship can continue. See Estate of Stricker, 602 Pa. 54, 63-64, 977 A.2d 1115, 1120 (2009) (Saylor, J., concurring). Experience has proven that the determination of finality procedure in subdivision (1) of Rule 342 is not workable and has been applied inconsistently around the Commonwealth. See id. (citing Commonwealth v. Castillo, 585 Pa. 395, 401, 888 A.2d 775, 779 (2005) (rejecting the exercise of discretion in permitting appeals to proceed)).

Experience has also proven that it is difficult to analogize civil litigation to litigation arising in estate, trust and guardianship administration. The civil proceeding defines the scope of the dispute, but the administration of a trust or estate does not define the scope of the litigation in Orphans’ Court. Administration of a trust or an estate continues over a period of time. Litigation in Orphans’ Court may arise at some point during the administration, and when it does arise, the dispute needs to be determined promptly and with finality so that the guardianship or the estate or trust administration can then continue properly and orderly. Thus, the traditional notions of finality that are applicable in the context of ongoing civil adversarial proceedings do not correspond to litigation in Orphans’ Court.

In order to facilitate orderly administration of estates, trusts and guardianships, the 2011 amendments list certain orders that will be immediately appealable without any requirement that the Orphans’ Court make a determination of finality. Orders falling within subdivisions (a)(1)—(7) no longer require the lower court to make a determination of finality.

Subdivisions (a)(1)—(7) list orders that are unique to Orphans’ Court practice, but closely resemble final orders as defined in Rule 341(b). Subdivision (a)(1) provides that the adjudication of any account, even an interim or partial account, is appealable. Previously, only the adjudication of the final account would have been appealable as a final order under Rule 341. The prior limitation has proven unworkable for estate administration taking years and trusts established for generations during which interim and partial accounts may be adjudicated and confirmed. The remainder of subdivision (a)(1) permits appeals from orders of distribution as Rule 342 always has permitted since its initial adoption. Subdivision (a)(2) is a new placement for orders determining the validity of a will or trust that previously were appealable as interlocutory appeals as of right following the 2005 amendment to Rule 311. See prior Rule 311(a)(8). Subdivision (a)(3) is a new provision that allows an immediate appeal from an order interpreting a will or other relevant document that forms the basis of a claim asserted against an estate or trust. Such orders can include, among other things, an order determining that a particular individual is or is not a beneficiary or determining if an underlying agreement executed by the decedent during life creates rights against the estate. Subdivision (a)(4) addresses trusts and is similar to subdivision (a)(3), but also permits immediate appeals from orders modifying, reforming or terminating a trust since such judicial actions are now permitted under 20 Pa.C.S. § 7740 et seq. Subdivision (a)(5) is intended to clarify prior Rule 342 in several respects: First, an appealable Orphans’ Court order concerning the status of individuals or entities means an order determining if an individual or entity is a fiduciary, beneficiary or creditor, such as an order determining if the alleged creditor has a valid claim against the estate. Second, such orders include orders pertaining to trusts and guardianships as well as estates. Finally, this subdivision resolves a conflict in prior appellate court decisions by stating definitively that an order removing or refusing to remove a fiduciary is an immediately appealable order. Subdivision (a)(6) retains the same language from prior Rule 342. Subdivision (a)(7) permits appeals of an Orphans’ Court order concerning an inheritance tax appraisement, assessment, allowance or disallowance when such order is issued separately and not in conjunction with the adjudication of an account. Sections 9186 and 9188 of Chapter 72 provide three procedures, outside the context of an accounting, whereby either the personal representative or the Department of Revenue may bring before the Orphans’ Court a dispute over inheritance taxes imposed. See also Estate of Gail B. Jones, 796 A.2d 1003 (Pa. Super. 2002) (analogizing a petition regarding the apportionment of inheritance taxes to a declaratory judgment petition given that an estate account had not yet been filed). A decision concerning inheritance taxes issued in conjunction with the adjudication of an account would be appealable under subdivision (a)(1).

In keeping with the 2005 amendment that added subdivision (2) to prior Rule 342, subdivision (a)(8) tracks subdivision (2) of former Rule 342. Subdivision (2) was adopted in response to Estate of Sorber, 2002 Pa. Super. 226, 803 A.2d 767 (2002), a panel decision holding that Rule 342 precluded immediate appeals from orders that would have otherwise been appealable as collateral orders under Rule 313 unless the Orphans’ Court judge made a determination of finality under Rule 342. Subdivision (a)(8) makes clear that Rule 342, as amended, is still not the sole method of appealing an Orphans’ Court order and an order not otherwise immediately appealable under Rule 342 may still be immediately appealable if it meets the criteria under another rule in Chapter 3 of these rules. Examples would include injunctions appealable under Rule 311(a)(4), Interlocutory Orders Appealable by Permission under Rules 312 and 1311, Collateral Orders appealable under Rule 313, and an order approving a final accounting which is a true final order under Rule 341. Whether or not such orders require certification or a further determination of finality by the trial court depends on the applicable rule in Chapter 3. Compare Rules 311(a)(4), 313 and 341(c) with Rules 312 and 1311.

Failure to appeal an order that is immediately appealable under subdivisions (a)(1)—(7) of this rule shall constitute a waiver of all objections to such order and may not be raised in any subsequent appeal. See Subdivision (c) of this Rule. The consequences of failing to appeal an Orphans’ Court order under (a)(8) will depend on whether such order falls within Rules 311, 312, 313, 1311 or 341.

Expert:  RayAnswers replied 1 year ago.

Rule 903. Time for Appeal.

(a) General rule. Except as otherwise prescribed by this rule, the notice of appeal required by Rule 902 (manner of taking appeal) shall be filed within 30 days after the entry of the order from which the appeal is taken.

Expert:  RayAnswers replied 1 year ago.

Rule 905. Filing of Notice of Appeal.

(a) Filing with clerk.

(1) Two copies of the notice of appeal, the order for transcript, if any, and the proof of service required by Rule 906 (service of notice of appeal), shall be filed with the clerk of the trial court. If the appeal is to the Supreme Court, the jurisdictional statement required by Rule 909 shall also be filed with the clerk of the trial court.

Expert:  RayAnswers replied 1 year ago.

You will be served if they appeal..

Rule 906. Service of Notice of Appeal.

(a) General rule. Concurrently with the filing of the notice of appeal under Rule 905 (filing of notice of appeal), the appellant shall serve copies thereof, and of any order for transcript, and copies of a proof of service showing compliance with this rule, upon:

(1) All parties to the matter in the trial court including parties previously dismissed pursuant to an interlocutory order unless; (i) the interlocutory order of dismissal was reviewed by an appellate order and affirmed; or (ii) the interlocutory order of dismissal was made final under Rule 341(c) and no party appealed from that date;

(2) The judge of the court below, whether or not the reasons for the order appealed from already appear of record;

(3) The official court reporter of the trial court, whether or not an order for transcript accompanies the papers; and

(4) The district court administrator or other person designated by the administrator pursuant to Rule 5000.5(a)(3) of the Pennsylvania Rules of Judicial Administration (requests and orders for transcripts).

Expert:  RayAnswers replied 1 year ago.

Judge of trial court sets appeal bond amount, he has to pay this.

As you can see he has 30 days here to do all of this and get it filed on time.You jut wait to see if he can do that, real hard to do all of that on time.

I appreciate the chance to help you tonight.Thanks again.

Customer: replied 1 year ago.
This case has gone on now for 3 years, they say they want to settle, but only on their terms, which are a lot more than the will states' ( Can I settle this by giving in to their demands ) after they file for appeal? ( and send their time and money? )
Customer: replied 1 year ago.
Customer: replied 1 year ago.
My costs to date in attorney fee's hav been $22,000.00 / seems excessive? ( I made need to cut my losses )
Expert:  RayAnswers replied 1 year ago.

You can settle here at any time.You can see if they appeal and then settle here.It is possible they don't meet the deadlines here. That might be the best course since they have to meet these within 30 days.Many times the realize they cannot afford an appeal and the bond here.

You can decide at any stage here if you choose.

Expert:  RayAnswers replied 1 year ago.

Thanks for the follow up.

Expert:  RayAnswers replied 1 year ago.

If you can leave a positive rating it is always much appreciated.

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