PBA RPPT Section Newsletter, Winter 2013

The Winter, 2013 Newsletter (Issue No. 72) of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association, was published on February 28, 2013, and will be mailed to members in printed form.  It will be available to the public in PDF format for a limited two-week period through a link to the PBA's website.

A recent email from the PBA to members noted the availability of this Newsletter (24 pages), among a few other section newsletters recently published:

PBA Real Property, Probate and Trust Law Section: Newsletter, Winter 2013 – Includes "Estate and Trust Tax Changes for 2013," "Inheritance Tax Return Correction Procedures Clarified," "New Law for Disposing of Abandoned Personal Property Left by the Tenant at the Leased Premises"

This is the index to the Newsletter:

Both "dirt" (Real Property Law Division) and "death" (Probate & Trust Law Division) lawyers in Pennsylvania can benefit by reading the articles in this issue.

A vibrant and committed new team of editors, drawn from both Divisions, worked on this issue.

Two key PBA staff members continue to oversee publication efforts at the PBA.  Amy Kenn, who worked on the Newsletter years ago and who recently resumed involvement following the birth of her daughter, and Michael Shatto, who remains the RPPT Section's liaison after so many years, assure smooth functioning in its production.

My good friend and fellow Section volunteer, Mark B. Hammond, Esq., of Chambersburg, PA, officially "retired" as an editor from production of the Newsletter last year.  Both the Section's leadership in the Chair's Report, and me personally here, thank Mark for his years of services on many issues of the Newsletter.  

After continuous involvement in the Newsletter since 1978, I transitioned into a new role as "Editor at Large", with intention of further contributions as I can be helpful.

After thirty-five years, the Newsletter, to me, is like my grown child, not needing me as much, but still a source of tremendous joy and pride in the fulfillment of its dual purposes:  Disseminating information and facilitating connections for lawyers who are involved in these two areas of law practice in Pennsylvania.

PBA RPPT Summer, 2011 Newsletter Issued

Last week, the Real Property, Probate & Trust Law Section of the Pennsylvania Bar Association published and mailed to each Section member the Summer, 2011 issue (No. 69) of its Newsletter.  It is available publicly, free, online in PDF format "for a limited time" at the link at the end of this posting; but, after that short time expires, it will be available only to members.

The Newsletter is 60 pages long, and contains well-written, timely articles and updates.

This is the table of contents:

• Report of the Section Chair, by Bridget M. Whitley

• Report of the Probate and Trust Law Division, by Bridget M. Whitley

• Article, The Endangered Species List now includes Pa. Private Road Act: Follow up on In Re: O'Reilly (II), by Ronald M. Friedman

• Article, Collaborative law:  Will it Work in Your Practice?, by Lea Anderson & Paula Hopkins

• Article, Litigating a "No-Contest" Clause, by Adam T. Gusdorff

• Article, Dealing with Property Left at the Leased Premises at the End of a Lease Term: A Practical Approach, by Ronald M. Friedman

• Article, Pa. Enacts Legislation Prohibiting Private Transfer Fees, by Arnold B. Kogan

• Article, Using Mediation to Resolve Disputes in your Community Association while Improving its Bottom Line, by James A. Rosenstein & Gary A. Krimstock

• Article, The Year in Review: 2010 Real Property Case Law, by Frank Kosir, Jr.

• Article, Pa. Dept. of Revenue -- Revised Safe Deposit Box Entry, by Neil E. Hendershot

• Article, Update to Probate Petition in Pennsylvania, by Neil E. Hendershot

• Article, Powers of Attorney and Third Party Liability, by Bridget M. Whitley

• Article, Bibliography of Articles, Attorneys-General Opinions, Etc. in the Fiduciary Reporter 1st & 2d Series (1952-2010), by Joel Fishman & Cynthia D. Buckholt

• Article, Recent Developments: Probate and Trust Law, by Cythia K. Rarig

• Update, Summer 2011 Legislative Update, by Steven B. Loux

• Update, Real Property, Probate & Trust Law Section Leadership

I serve as the Executive Editor of the PBA RPPT Section's Newsletter.  The Summer 2011 issue is as good as any in the 33 years that I have edited it.

Kudos and thanks go out to each contributor, and also to Mark B. Hammond, of Chambersburg, PA, as the Editorial Assistant who worked diligently to assemble it, and to Amy Kenn, as the Staff Editor at the Pennsylvania Bar Association who framed and sent it for publication.

For that "limited time", find this issue online here.  After that offer expires, please consider joining the Section if you are already a PBA member.

PA Bar Promotes "Wills for Heroes" Further

In an emailed member newsletter received July 18, 2011, the Pennsylvania Bar Association continues its support and promotion of a "Wills for Heroes" program, as pioneered in 2007-08 by the American Bar Association, through a specialized statewide program in the Commonwealth conducted by the PBA's Young Lawyers Division:

Invitation to Volunteer for PBA YLD-supported 'Wills for Heroes' Programs
The PBA Young Lawyers Division is a proud co-sponsor of the "Wills for Heroes" program in Pennsylvania. Through the support of volunteer lawyers and paralegals, the program provides free wills and other estate planning documents for police, firefighters and emergency medical personnel who risk their lives every day for the safety of their fellow citizens.
Consider becoming a "Wills for Heroes" volunteer. Click here for more information, including a list of upcoming summer and fall events across the state. Click here for additional details for lawyer volunteers.

I've noted the development of such programs in Pennsylvania over the years. See: "Wills for Heroes" Workshops Multiply in PA & DE (08/03/10); PBA's Young Lawyers Sponsor "Wills for Heroes" (05/06/09); and Firefighters, First Responders, and Free Wills (05/15/08). The Program appears healthy and expansive.

Pennsylvania's program is conducted in conjunction with the Wills for Heroes Foundation. It is operated on a county basis through local bar associations. Click here for a list of county coordinators. For more information, you may send an email message to the PBA's Young Lawyers Division, the Pennsylvania program Director Dan McKenna, or the Pennsylvania program Co-Chair/Director Lisa Shearman.

PBA members can sign up online here to join a thriving movement with worthy objectives.

Proposed DPW Lien Expansion Opposed

Since April, 2009, Pennsylvania lawyers carefully followed proposed state legislation (House Bill 1351) that would significantly expand Medicaid recovery beyond the current target -- a recipient's estate after death -- to more targets in which a recipient has a limited or partial lifetime interest. The effects on such other, remote interests in property would be far reaching.

Recently, Jeffrey A. Marshall, Esq. (a practicing member of Marshall, Parker & Associates, LLC), as a member of the Council of the Elder Law Section of the Pennsylvania Bar Association, circulated an email message on the Elder Law Listserv that updated fellow members about the status of bar association efforts in opposition to the proposed legislation.

Opposition, spearheaded by the Elder Law Section, was joined by the Real Property, Probate & Trust Law Section, the Family Law Section, and the Solo & Small Firm Practice Section of the PBA.

With his consent, I repost his report (with slight editing and links added), with thanks.

Section Chair, Katherine Pearson, has asked me to update members on the Elder Law Section efforts in regard to the proposed expansion of estate recovery.

In April, HB 1351 was introduced as part of the Governor’s Budget proposal. The bill contains a rewrite of Section 1412 of the Welfare Code that will expand Medicaid estate recovery in Pennsylvania to include interests held in joint tenancy, tenancy by the entireties, survivorship, life estate, living trust or other arrangements.

The bill also gives the Department of Public Welfare (DPW) unprecedented collection authority and the power to resolve claims in an autocratic manner which is inconsistent with probate, trust and estate law.

The Elder Law Section moved immediately and forcefully to oppose the expansion of estate recovery. Our actions included:

1. Submission of a resolution to the PBA Board of Governors and House of Delegates opposing the expansion of estate recovery. Section leaders coordinated this opposition with other PBA groups including the Solo & Small Firm Practice, Family Law, and Real Property, Probate & Trust Law Sections. The resolution was approved by the House of Delegates on June 4th and is now PBA policy.
2. Section leadership has been working with the PBA Legislative Department to advocate in the state legislature. Letters have been sent by PBA to legislators and the Governor. A PBA Legislative Alert will be coming out soon that will provide the Association’s members with an easy way to contact their legislators to express their concerns. It is vital that legislators hear from their local constituents, especially from the lawyers in their districts who understand the negative impacts of the recovery expansion.
3. The Section has coordinated our efforts with other non-PBA lawyer groups including the Pennsylvania Association of Elder Law Attorneys (PAELA) and the Section has coordinated our efforts with other non-PBA lawyer groups including the Philadelphia Bar Association.
4. The Section, in coordination with PAELA, developed materials to inform and advise other affected groups about the proposed expansion. Members then contacted those groups to seek support and build an effective coalition of opponents of the proposal. Section members spent countless hours alerting these other organizations to the effects of the proposal. Our efforts have been remarkably successful and our coalition now includes the following diverse group of organizations: AARP Pennsylvania Chapter; Insurance Federation of Pennsylvania; Pennsylvania Bankers Association; Pennsylvania Land Title Association; Pennsylvania Alzheimer’s Public Policy Coalition; Pennsylvania Home Care Association; Philadelphia Bar Association; PAELA; and many others.
5. PAELA has developed talking points, a position statement, and sample templates for lawyers to use for letters to be mailed to their legislators.
6. Many individual members of the Section have already contacted their legislators to alert them to the dangers of expansion of recovery. They have received many positive responses from the legislators.
   

We have learned that Section 1412 is not the only legislative proposal to expand estate recovery. House Bill 68, while less extreme, also seeks to expand recovery collections by means that will create problems for our clients, as well as for banks and funeral directors.

In a frightening example of how things can slip through unless our section is constantly on alert, HB 68 has already passed the House by unanimous vote. It is now under consideration by the Senate Judiciary Committee.

Much has been accomplished by your Section to defeat the expansion of estate recovery, but much more needs to be done. Please contact your state legislators, in person, by mail, and/or by e-mail. Your support and assistance is greatly appreciated.

The PAELA "talking points" are posted online here (PDF, 2 pages).

This is the position of the PBA in its Legislative Alert, sent June 22, 2009:

The Pennsylvania Bar Association adamantly opposes this section of HB 1351 and any similar legislation being negotiated as part of the 2009-10 state budget as bad public policy and harmful to the Commonwealth’s already vulnerable senior citizen population.

The issues contained in HB 1351 will undoubtedly play a role in the 2009-10 state budget negotiations in the legislature. Any attempt to expand MAER will:

· Create significant complications for estate administration and cause major title and conveyancing problems.
· Deter individuals from serving as executors and trustees and lawyers from representing these fiduciaries.
· Discourage older Pennsylvanians from seeking needed long-term care support services out of fear of new liens asserted by the Commonwealth. * * *

The PBA urges its members to contact legislators: "A]sk them to oppose section 1412 of HB 1351 and any similar attempts to expand estate recovery."

PBA Elder Law Newsletter (Spring, 2009) Available

In May, 2009, the Elder Law Section of the Pennsylvania Bar Association issued its semi-annual Newsletter, Vol. 8, No. 1 (PDF, 31 pages), containing fifteen articles or notices, to its members.

For a limited time, that issue is available publicly on the PBA's website here, in PDF format for viewing or download.

The contents of the Spring, 2009 PBA Elder Law Section Newsletter are set forth on its first page:

• Pennsylvania Proposes Expansion of Medical Assistance Estate Recovery (p. 1) by Katherine C. Pearson, Section Chair

• Section Leadership List (p. 2)

• 12th Annual Elder Law Institute Takes Place in Hbg. in July (p. 2), by Sally Schoffstall
  

• Pa. Legislature May Adopt “Suitability Standard for Sale of Annuities” (p. 3), by Dana M. Breslin
  

• PBA Recommendation and Report: Proposed Expansion of Medical Assistance Estate Recovery Program (p. 4), submitted by Katherine C. Pearson as Chair, Elder Law Section
  

• Elder Law Numbers Quick Reference (p. 6), by Robert C. Gerhard, III
  

• Medicare 101 for Attorneys (p. 7), by Kathleen M. Martin
  

• Binding Arbitration Agreements: A Hidden Minefield in Powers of Attorney (p. 9), by Martin S. Kardon
  

• Elder Law Section Web Site is New and Improved (p. 10), by Robert DeLong, Jr.
  

• Help with Your PBA Elder Law Section Listserv (p. 12), by Traci Raho
  

• The Curious Case of the Persistent Step-Up (p. 13), by John Payne
  

• Advance Care Planning After Act 169 (p. 18), by Jeffrey A. Marshall
  

• Elder Law Case Updates (p. 21), by Robert C. Gerhard, III

• Legislative Report (p. 24), by Steven Loux
  

• Contact the Editors (p. 31), by Robert C. Gerhard, III (Editor), and Ellen Wase & Julian Gray (Co-Editors)

This issue of the Section's Newsletter will be available only for a limited time.

Get it now. It is a blockbuster issue.

"Blogging" Article in PA Lawyer Magazine

Pennsylvania attorney (& blogger) Kelly Phillips Erb, Esq., of Philadelphia, PA, wrote an article, entitled "Law 2.0: A Legal Blogging Primer," published in the May-June, 2009 issue of The Pennsylvania Lawyer, for the membership of the Pennsylvania Bar Association.

I know Kelly as the author of the popular Tax Girl blog, listed in the American Bar Association's Top 100 Blogs of 2009, and as a frequent contributor to the "Probate & Trust" listserv of the PBA's Real Property, Probate & Trust Law Section.

She certainly is qualified, both as a lawyer and a blogger, to instruct on the basics of legal blogging, where the fields of law, writing, and technology intersect.

These were the topics within her article:

• The Basics: What's a Blog?
• Finding Your Niche: What Should You Blog About?
• Promoting Your Blog: How Do You Get the Word Out?
• Dipping Your Toes In: How Do You Get Started?
• Looking Like a Pro: Does Appearance Matter?
• Returning the Favor: How Do You Get Linked on Other Blogs?
• The Bottom Line: Is It Worth It?

From my experience in writing this Blog and in practicing law, I agree with just about every point Kelly wrote in her article.

I would have added a few more topics, however, like:

• Keeping Out of Trouble: Know the Copyright Laws!
• Staying Alive: Know When to Hold 'Em, Know When to Fold 'Em, and Know When to Walk Away (from Blogging about a Topic)
• Refreshing Yourself: Update Prior Commentaries and Correct Misstatements
• Representing Clients First: Follow the Rules of Professional Conduct While Blogging
  
• Citing Sources: Know the Character of Links You Reference or List
  
• Being Grateful (Never Gratuitous): Share and Celebrate Contributions by Others
• Blogging for the Right Reasons: Follow Your Professional Passion
  

I was pleased to read that this Blog was included among three cited by Kelly as representative of "focused" blog writing.

I highly recommend the article to any lawyer now involved in writing a blog, or contemplating that long-term pursuit.

Elder Law Attorney as Family Counselor

On December 3, 2008, a Pennsylvania elder law attorney, Laurel Hartshorn, of Saxonburg, related a story on the PA Elder Law Section's listserv that highlighted the good work of elder law attorneys with aged clients and their families.

I post Laurel's account (as edited by me) with her permission.

Had a wonderful call today. A client's daughter called to thank me.

The daughter and her brother met with me two weeks ago to talk about their mother. Mom was failing quickly and they needed some advice.

One of the issues we discussed was medications.

At the Elder Law seminar in July, I attended the lecture by a blind geriatric doctor. He stressed how medications could get mixed up or have bad combinations. He also said that the changes might occur rapidly.

Since that seminar, I have paid particular attention to what caregivers and clients say about rapid changes in health or behavior. So I suggested that daughter talk to mom's pharmacist first and then the doctor.

The daughter went the next day and talked to the pharmacist. Lo and behold, there had been a substitution by the pharmacy in mom's medicines. The pharmacist told the daughter that she though it would be okay, since the drugs were in the same prescription family.

Apparently, however, mom could not tolerate the new drug, and the family did not know about the change.

Mom is back on the correct medication. She is doing much better and is regaining strength.

The family is so happy. They said they could not believe that such a great result could come from a conference with an attorney.

Funny how sometimes I give personal advice. It is just something that I do -- relate information that I had acquired. I might not realize how important non-legal suggestions may become until a client or a family benefits.

I want to thank the organizers of the July conference for bringing in the doctor to speak. At least in my practice, for those clients, his session may have had a life saving effect.

Such stories can be told by most elder law attorneys, who daily offer advice and counseling in the model of the old-style, small town "family lawyer" or "counselor-at-Law," with one objective: Help the aged client.

In an excellent article entitled "The Lawyer as Counselor Representing the Impaired Client" published in the American Bar Association's General Practice & Solo Magazine (10-11/2004), attorney Timothy David Edwards considered the lawyer's role as a "Counselor-at-Law" in the setting of an addiction affecting a client and creating a disability.

After his detailed analysis of situational factors, scientific developments, and attorney ethical principles, he concluded:

As lawyers, we are in a position to help people who trust us and seek us out for advice.

If we come to understand our client, the nature of addiction, and the appropriate sources of treatment, we are in a better position to provide useful guidance that the client is more likely to accept. By staying involved and providing a compassionate, critical mirror, we can truly make a difference.

This is a daunting responsibility, but it can provide lasting benefits to the impaired client.

This point was reinforced in a message once posted by Thomas J. Ryan, Esq., as President of the State Bar of Michigan, entitled "Attorney and Counselor at Law." He noted:

It is not an overstatement to say that in this way, as counselor, we use our skill in an effort to heal — not just the immediate problem presented to us, but the person as well.

In a very real sense, society benefits as well from this counselor approach. And we should not underestimate the professional fulfillment we derive from our privilege to serve in this capacity. * * *

An elder law lawyer functions daily as a "counselor-at-law" -- a role that is personally gratifying and professionally beneficial.

Survey on Free Legal Services to Seniors

On November 12, 2008, Linda M. Anderson, as Chair of the Elder Law Section of the Pennsylvania Bar Association, sent an email message to Section members seeking input, through a grant-supported survey on legal services to senior citizens, about pro bono legal programs in Pennsylvania.

With permission granted by the PBA, and after an exchange of email with Linda, I repost her message:

The Pennsylvania Bar Association's Pro Bono Office and the PBA's Elder Law Section are pleased to be partners with the PA Department of Aging and SeniorLAW Center, who have secured a grant from The U.S. Administration on Aging, which has enabled us to make a comprehensive assessment of county pro bono programs and other legal services throughout Pennsylvania.

The Elder Law Section has created an online survey to collect information necessary to determine strengths and weaknesses in providing those services and help identify unmet legal needs of senior citizens throughout the state.

The Section asks all its members to participate in the online survey to help it assess the pro bono system currently in place and its accessibility to Pennsylvania's seniors. * * *

Thank you for taking the time to participate in this very important project. It will give us such valuable information for determining the steps needed to give our senior citizens the legal support they need.

Please complete the survey by November 30, 2008. [Links & highlights added]

Such a grant appears to derive from the AoA's support of Senior Legal Services, as described in its 2006 Annual Report entitled "Modernizing Older Americans Act Programs" (29 pages; DOC format- 1.4MB; PDF format - 813KB):

The OAA is one of the top funding sources for low-income senior legal assistance. There are approximately 1,000 OAA-funded legal services providers nationwide, which help to ensure that older Americans receive legal assistance and critical information.

AoA’s legal programs help older Americans and their caregivers address threats to home ownership (such as predatory lending and consumer scams), obtain financial powers of attorney or guardianships that can prevent or stop financial exploitation, and apply for public benefits that promote health and independence. * * *

Prior Annual Reports (2003-2005) are available online, but none have been issued since 2006.

The referenced survey project in Pennsylvania appears to be one of the types mentioned in the 2006 Annual Report on page 23:

In addition, AoA currently funds eight Grants to Enhance Access to Senior Legal Services and six new Model Approaches to Statewide Legal Assistance Systems, which provide States with cost-effective ways to increase the number of seniors who receive this type of assistance.

The purpose of the Model Approaches grants is to develop models for statewide legal services development and delivery systems that coordinate the efforts of senior legal helplines, Title III-B legal resources, private bar pro bono activities, law school clinics and self-help sites to ensure maximum impact from limited resources.

Upon completion of the three-year grant period, grantees are expected to present cost-effective examples of integrated State legal services delivery systems that increase overall access to legal services within their States.

These grants are intended to enhance statewide consistency and efficiency in senior legal services program delivery through incorporating the use of low-cost legal services mechanisms into the State legal services planning and development process. * * *

Some of the eighteen questions in the PBA Elder Law Section's online survey seek to gauge the effectiveness of two services already providing legal information or local referrals for seniors citizens in Pennsylvania.

ProBono.Net, a national association of lawyers, can arrange free legal services to qualifying low-income people in many states, including Pennsylvania.

PA Law Help, on its website, summarizes Pennsylvania law & resources on various topics. Its Elder Law section lists these subtopics:

Consumer Issues for Seniors Family Issues for Seniors Elder Abuse and Exploitation Guardianships, Powers of Attorney and Living Wills Housing and Homeownership Medical Assistance

Medicare Nursing Homes Social Security Supplemental Security Income (SSI) Wills and Estates

For senior citizens (age 60+) in Pennsylvania, the toll-free Pennsylvania SeniorLAW Helpline, associated with PA Law Help, remains one of the best legal referral and information resources available.

It is staffed by lawyers who can address, over the telephone, many concerns raised by senior citizens, including:

• Consumer problems (credit, debt, bankruptcy)
• Health care, including Medicare Part D
• Estate planning (wills, powers of attorney)
• Pensions - government and private
• Family law (divorce, custody, domestic violence)
• Housing (landlord-tenant, deeds, utilities)
  

Seniors may call that helpline at 1-877-PA SR LAW (1-877-727-7529) for legal information, Monday through Friday, from 10 a.m. to 4 p.m.

Two PA Elder Law Newsletters Issued

Last week, two newsletters were issued and posted online regarding elder law in Pennsylvania -- one from the PA Bar Association's Elder Law Section, and another from the Elder Law & Consumer Protection Clinic at Penn State/Dickinson Law School.

On October 24, 2008, the Fall, 2008 issue (Vol. 7, No. 2) of the PBA Elder Law Section Newsletter (PDF, 18 pages) was made available to members, and also to the public "for a limited time only."

The Fall 2008 issue of the PBA Elder Law Section Newsletter contains these articles:

• Message from the Chair, by Linda Anderson (p. 1)
  
• Coming in Spring 2009: 12th Annual Elder Law Institute, by Sally Schoffstall (p. 2)
• Status of Assisted Living in Pennsylvania, by Dana M. Breslin (p. 3)
• CMS Issues Final Rule to Empower Medicaid Beneficiaries to Direct Personal Assistance Services, by Neil E. Hendershot (p. 4)
• Pennsylvania Medicaid: Long-Term Care Recent Developments, by Robert C. Gerhard, III (p. 5)
• Elder Law Numbers Quick Reference, by Robert C. Gerhard, III (p. 7)
• Rethinking the Simple Will, by Robert Clofine (p. 8)
• Section Leadership List (p. 9)
• Elder Law: What It Means to You and Your Future, by Robert Gerhard III & Ellen Wase (p. 10)
• Life Care Planning: A New Approach to Elder Law, by Leslie Wizelman (p. 11)
• Escape from “Alcatraz:” a/k/a an Inappropriate Annuity, by Timothy W. Smith (p. 13)
• John Michael Hall Appointed Acting Secretary of Aging, compiled from a PA Department of Aging Press Release (p. 14)
• Time Management for Lawyers: A Psychological Perspective, by Dr. Amiram Elwork (p. 16)
• Contact the Editors (p. 18)
• Help with Your PBA Elder Law Section Listserv (p. 18)

Earlier that week, on October 20, 2008, Penn State's Elder Law and Consumer Protection Clinic made available online the Fall 2008 issue of its newsletter, "Adventures in Law and Aging" (PDF, 4 pages).

The Fall 2008 issue of the PSU Elder Law & Consumer Protection Clinic's Newsletter contains these articles:

• PBA Elder Law Chair Shares Her Experiences with Penn State Students, by Trisha Cowart (p. 1)
• County Redevelopment Projects Can Make Home Repairs More Affordable to the Elderly, by Danyele Coffey (p. 1)
• Probating Estates: Remembering the Family Exemption, by Andrea Miller (p. 2)
• Bringing Law School to Life, by Tania L. Klam (p. 2)
• Getting By With a Lot of Help From Our Friends (p. 2)
• Tackling Medicaid Appeal Problems, by Lyndsey Leatherman (p. 3)
• An Elder Law Vacation?, by Katherine Pearson (p. 3)
• Upcoming Events In Law and Aging (p. 4)

Both newsletters contain a reminder that the PBA Elder Law Section will be meeting during the PBA's Section/Committee Day on Wednesday, October 29, 2008 (Agenda, PDF, 3 pages), at the Radisson Penn Harris Hotel & Convention Center, in Camp Hill. Most other sections and committees of the PBA, including its Real Property, Probate & Trust Law Section, also will be meeting there then.

PBA Supports SB 1203 on PA UTA

On September 23, 2008, the PA House Judiciary Committee cleared Senate Bill 1203, as amended previously in the PA Senate, for further consideration by the full House. In a letter sent September 22, 2008, the Pennsylvania Bar Association urged its passage this session, during the few days of legislative activity that remain.

Adoption during this legislative session by the House of SB 1203 without further amendment is important.

[UPDATE: 12/01/08 -- As indicated in the "Update" at the end of this posting, despite valiant efforts by proponents of SB 1203, in the crush of other matters under consideration, it was not adopted by the House during this Legislative Session. It will be re-introduced as a new bill for consideration in the 2009-2010 Legislative Session.]

Originally, SB 1203, PN 1633 (PDF) was introduced into the Senate on Friday, December 7, 2007. Generally it proposed "omnibus" changes to the PA Probate, Estates & Fiduciaries Code, summarized in its caption as follows:

An Act amending Title 20 (Decedents, Estates and Fiduciaries) of the Pennsylvania Consolidated Statutes, further providing for forfeiture, for modification of wills, for advertisement of grant of letters, for duty of personal representative, for enforcement of contribution or exoneration of Federal estate tax, for implementation of power of attorney, for applicability of rule against perpetuities, for modification of conveyance by divorce, for effect of divorce on designation of beneficiaries, for notice of representation, for creditor's claim against settlor, for actions contesting validity of revocable trusts, for claims and distribution after settlor's death, for trustee's duty to inform and report, for illustrative powers of trustee, for limitation of action against trustee, for power to convert to unitrust and for retirement benefits, individual retirement accounts, deferred compensation, annuities and similar payments; and making conforming amendments to Title 15.

That form of the bill implemented recommendations presented in the October 2007 Advisory Committee Report addressed to the Legislature by the Joint State Government Commission's Advisory Committee on Decedents' Estates Laws. The full Report remains available here (PDF, 64 pages).

For background and overview, see: PA EE&F Law Blog postings "PA PEF Code Revisions Proposed" (10/25/07) and "Omnibus Bill re PEF Code Introduced" (12/07/07).

Most of the recommendations were technical or corrective, and therefore not controversial. In these aspects, SB 1203 represents an evolution of fiduciary law that is very desirable.

Recommendations address uncertainties highlighted by recent court decisions, or sharpen provisions of the PA Uniform Trust Act (which took effect on November 6, 2006), and the PA Principal and Income Act, among other chapters of the PEF Code. Other recommendations clarified the interplay of domestic law versus estate law in divorce settings interrupted by death of a party, and the allocation of death taxes.

But, to me, the most urgent changes were amendments to Chapter 56 of the PEF Code that would limit the ability of an agent, appointed under a power of attorney, to change insurance beneficiary designations under §5603(p), or to engage in retirement plan transactions, including beneficiary changes, under §5603(q). These changes would allow the courts to correct financial abuse perpetrated by an agent's self-serving interference with a principal's existing testamentary intentions.

On May 13, 2008, the Senate Judiciary Committee reported amended SB 1203, PN 2048 (PDF) back to the Senate.

Then, the Real Property, Probate & Trust Law Section of the Pennsylvania Bar Association recommended passage of SB 1203, which was endorsed at its Annual Meeting during the first week of June, 2008.

The Pennsylvania Banker's Association raised concerns while SB 1203 was further considered by the Senate's Appropriate Committee. The main issues were a reduction for the time limit in the laches provisions of the PA UTA from its present five years under Section 7785(a)(1), and clarification of the contents of an annual report upon which that time-bar was premised under Section 7780.3(i)(5). See: Senate Passes Legislation Making Important Corrections and Improvements to the Pennsylvania Uniform Trust Act (UTA) with PBA Supported Amendment, posted by the bankers' association.

The compromise resulted in a further amended form sent to the Senate as SB 1203, PN 2293 (PDF format), which was adopted 50-0 on July 2, 2008. That is the current version of the bill.

It is this form of the bill that must be approved without further amendment by the House during this session. There is no time for "concurrence" in any House amendment, since the Senate will not reconvene during this session.

Earlier this week, the current President of the PBA, C. Dale McLaine, Esq., sent the following letter to each Representative, urging adoption of SB 1203:

The Pennsylvania Bar Association is on record in support of Senate Bill 1203, which makes important technical corrections and other changes to the Uniform Trust Act and the Probate, Estates and Fiduciaries Code. On behalf of the Association and its 29,000 members, I am writing to confirm that the PBA continues to endorse the enactment of Senate Bill 1203 in a form that will allow for its enactment this legislative session.

We believe that this bill takes on particular importance in light of the recent tumult in the financial sector, which has disproportionately impacted banking and trust institutions, many of which act as fiduciaries of trusts and estates. We view the immediate passage of this legislation as a step toward providing certainty in the law for individual and institutional fiduciaries, as well as for beneficiaries. Accordingly, we respectfully request your support of its passage in this legislative session.

The PBA will continue to monitor the impact of the Uniform Trust Act (and its implementation) on our constituents and the clients whom we serve, and when necessary, will weigh in on further adjustments or modifications to the law that may be advisable.

At the hearing on Tuesday, September 23rd, the Chair of the Advisory Committee on Decedents' Estates Laws, Edward ("Ted") M. Watters, III, responded to questions from House Judiciary Committee members, who then reported it favorably, without amendment, to the House, where it received first consideration. As customary, the bill was referred to the House Appropriations Committee.

At this pace, and with such cooperation, SB 1203 can be adopted by the House, and sent to the Governor, during this legislative session; and it should be.

The most recent national (even international) financial events demonstrate what can happen when laws & regulations are not routinely reviewed, modernized, and refined. That is what SB 1203 would do in the areas that it touches -- fiduciary duties, beneficiary rights, and two egregious forms of financial elder abuse.

Both PBAs -- both the lawyers and the bankers -- urge adoption now.

Update: 12/01/08:

In an email message sent on December 1, 2008, by Edward Watters, Esq., as Chair, to fellow members of the Decedents' Estates Law Advisory Committee of the Joint State Government Commission, he advised:

The Legislature has adjourned and SB 1203 did not pass.

All provisions need to be re-introduced in some form next session.

PBA RPPT's Summer 2008 Newsletter Issued

On September 19, 2008, the Pennsylvania Bar Association's Real Property, Probate & Trust Law Section released its most recent bi-annual Newsletter (No. 65, Summer 2008) for members. At 72 pages, this issue is the longest ever published by the Section.

The contents of this issue of the Newsletter include:

• Report: From the Section Chair (p. 1, by Jill R. Fowler)

• Photo Gallery: RPPT Section Annual Meeting, June 4-5, Hershey (p. 2)

• Report: Vice-Chair, Probate & Trust Law Division (p. 4, by Bridget M. Whitley)

• Report: Vice-Chair, Report, Real Property Law Division (p. 5, by William “Chip” Mackrides)

• Update: Recent Developments in Probate & Trust Law (p. 7, by Stanley J. Lehman & Cynthia K. Rarig)

• Announcements: List of Upcoming Courses from PBI, and PBA Midyear Meeting (p. 10)
  

• Update: Recent Legislation (p. 11, by Steven Loux, of the PBA Staff)
  

• Article: PA Uniform Trust Act Amendments -- SB 1203 (p. 19, by Daniel B. Evans)
  

• Article: Reformation for Mistake Under Uniform Trust Act (p. 21, by Daniel B. Evans)

• Article: Realty Transfer Taxes -- New Regulations Do Not Stand Scrutiny (p. 23, by Daniel B. Evans & Anna O. Sappington)

• Article: Realty Transfer Taxes -- New Regulations Would Tax Assignments of Purchase Agreements (p. 25, by Harris Ominsky)
  

• Article: New Realty Transfer Tax Regulations Raise a Ruckus (p. 27, by By Philip B. Korb)
  

• Article: Prudent Practices for Investment Advisors Published (p. 29, by Neil E. Hendershot)

• Article: IRS Proposes Final Preparer Penalty Regs (p. 30, by Neil E. Hendershot)
  

• Article: Firefighters, First Responders and Free Wills (by p. 32, by Neil E. Hendershot)

• Article: Evans’ Book on Estates Practice Updated (p. 33, by Neil E. Hendershot)

• Article: PBA RPPT Section Honors Chief John Murphy (p. 34, Neil Hendershot)
  

• Listserv Summaries: Probate & Trust Law Postings (p. 35, by Mark B. Hammond)
  

• Listserv Summaries: Real Property Law Postings (p. 62, by Mark Hammond)

• Roster: RPPT Section Leadership List (p. 70)

• Roster: RPPT Committee List (p. 71)

I serve as the Newsletter's Executive Editor. Mark Hammond is the Assistant Editor, and Patricia Graybill, of the PBA's Publications Department, is Staff Editor.

Our Section's Newsletter has been, over the twenty-five years that I have edited it, a quality publication produced by Section members, with reliable and relevant content regarding this practice area.

This issue of the Newsletter was mailed to Section members within the past few days, and was posted in PDF format in the Members Only area of the PBA website on September 19th for viewing and downloading.

However, unlike past issues, it will not be posted publicly right now. Last Friday during the monthly Section Leadership Conference Call, a new policy was adopted for online posting of Section newsletters, effective immediately.

The current Newsletter will not be available until six months after issuance, when it will be posted publicly until replaced by the next issue. All issues remain available to Section members in the Section's Newsletter archives on the PBA website.

So, to get a copy now of the current Newsletter, sign up to be a PBA RPPT Section member, or connect with an attorney who is.

PBA RPPT Section's 2008 Annual Meeting

On Wednesday, June 4, & Thursday, June 5, 2008, the Real Property, Probate & Trust Law Section of the Pennsylvania Bar Association will hold its Annual Meeting & Retreat, in conjunction with the PBA's Statewide Annual Meeting, at the Hershey Lodge, in Hershey, PA.

The RPPT Section's Annual Meeting & Retreat is explained in detail in a brochure posted online (PDF, 6 pages).

This is the schedule of sessions & events:

Wednesday - June 4th

Time	Probate and Trust	Real Property
9:00-10:00	Recent Developments in Real Property and Probate Kirby Upright, Andrea Geraghty
10:00 -11:00	Wants, Wishes, and Wills- A Medical and Legal Guide to Protecting Yourself and Your Family In Sickness and In Health Wynne A. Whitman
11:00 –11:15	Break
11:15- 12:15	Special Needs Trusts Steve Feldman	Transfer Tax Changes Phil Korb
12:15 – 2:00	Lunch
2:00 – 3:00	Lawyers in the Movies (Ethics) Gordon Zubrod
3:00 – 3:15	Networking break
3:15 – 4:15	Ask the Expert: Top Ten State Tax Issues to Avoid Paul Dibert		Top Tax Tips for Real Estate Lawyers Joe Sedlack
4:15- 5:15	Real Estate Issues for Estate Practitioners Jeff Malak Dave Schwager		Planning for Entities- FLPs, LLCs, etc. Arnie Kogan Chip Mackrides

Thursday - June 5th

Time
8:00- 9:00	Annual Meeting for Members
9:00 –10:00	Vacation Homes: Tax Consequences and Estate Issues Maury Reiter
10:00 – 11:00	Orphans’ Court Rules Update Dean Philips Hon. Anne Lazarus Neil Hendershot	Inside Subprime Mortgages Irv Ackelsberg David Schwager (Moderator) Faith Schwartz

The online brochure also describes the wrap-around social activities planned by the Section's leadership, and explains how you can register & where you can stay.

If you are a Section Member, or a statewide member attending the PBA's Annual Meeting, please consider participating in the social activities and attending the instructive sessions.