Weird Stories for Wednesday's Halloween

Around Halloween, I note weird stories in the media; and some relate somewhat to the topics of this blog.

In the spirit of the spirits, I note four brief news reports that I found on Halloween's Eve on Comcast (and elsewhere, too) that are weird in different ways:

"Couple Dead Serious About Selling House" (Wexford, PA; 10/30/07), also posted on MSNBC here:

It's the deal of a lifetime. Bob and Ricki Husick of Pittsburgh are offering anyone who buys their home a full refund when they die.

The Husicks have been trying to sell their suburban home for almost a year, but have failed to do so in the current shaky market. * * *

The couple have no heirs and built the house in 1993. They want $399,900 for the four-bedroom, 3 1/2-bath home, which is located about 20 miles north of Pittsburgh.

Under the Husicks' offer, the buyer would get the sale price back when they die.

Wait, there's more: If the buyer agrees to care for the couple in old age, he could also inherit their retirement home in Arizona. * * *

"77-Year-Old Gets Carded in Beer Purchase" (Gallivare, Sweden; 10/30/07), also posted on Yahoo! News here:

He may look young for his age, but 77-year-old Swedish retiree Per-Eric Henricsson was not flattered when his local supermarket asked him to show ID to prove that he was old enough to buy a case of beer.

Now, Henricsson has asked the National Association of Senior Citizens for help in adressing the ICA supermarket in Gallivare, northern Sweden, to stop carding the elderly. * * *

The minimum age for buying low-alcohol beer and cider in Swedish supermarkets is 18. Beer with higher alcohol content, wine and spirits are sold in government-operated liquor stores, where 20 is the age limit.

Henricsson had planned to buy a case of beer for a social gathering of the local senior citizens group he leads when the cashier asked for his ID. He said he was so insulted by the request that he refused to make the purchase and left the store. * * *

"Elvis Is Forbes' Richest Dead Celebrity" (New York; 10/30/07), also posted on Yahoo! News here:

Elvis Presley is still the King. Presley, who earned an estimated $49 million in the past 12 months, has reclaimed the No. 1 spot on Forbes.com's list of Top-Earning Dead Celebrities. He last topped the list in 2005.

John Lennon ranks second with earnings of $44 million, followed by Charles M. Schulz ($35 million), George Harrison ($22 million), Albert Einstein ($18 million), Andy Warhol ($15 million), Theodor Geisel (Dr. Seuss) ($13 million), Tupac Shakur ($9 million), Marilyn Monroe ($7 million), Steve McQueen ($6 million), James Brown ($5 million), Bob Marley ($4 million) and James Dean ($3.5 million). * * *

Forbes said the celebrities on the list, posted Monday, earned a combined $232 million in the past 12 months.

"Traffic Stop Yields Embalmed Heads" (Royse City, TX; 10/30/07), also posted on Yahoo! News here:

A traffic stop in Texas yielded about two dozen embalmed heads. But it's no Halloween joke. Investigators said the human heads had been used for medical training in the Fort Worth area and were being returned to Little Rock, Arkansas.

Hunt County Justice of the Peace Aaron Williams was summoned during a traffic stop Sunday in Royse City after a trucker was suspected of speeding.

"This is in the top five of the strangest things maybe the strangest that I've ever encountered," Williams told The Dallas Morning News on Monday. * * *

Federal Grant for Seniors' Legal Services in PA

On October 29, 2007, the PA Department of Aging issued a Press Release noting award of a 3-year federal grant to support legal services for needy seniors. See: "Pennsylvania Receives Federal Grant to Help Older Adults Who Need Legal Services".

More older Pennsylvanians who need legal services will be able to get them with the help of a $100,000 federal grant from the U.S. Administration on Aging. Similar funding will also be available for the second and third years of the project.

The secretary highlighted the challenges in securing legal representation faced by any older Pennsylvanians – especially the low-income, those living in rural areas, and seniors with limited English language proficiency or physical limitations.

One of the Department’s goals is to promote a system that better coordinates available legal services, including the Pennsylvania SeniorLAW Helpline, law firms’ pro bono activities, legal aid clinics operated by law schools and bar association activities.

The department will work closely with the Philadelphia-based SeniorLAW Center to develop a program of delivery systems and strategies that will result in improved access to legal advice and representation. * * *

According to its website, the "SeniorLAW Center protects the legal rights and interests of seniors in need, providing free legal services, community legal education, professional training, advice, information and referral services, and advocacy." It has offered such services since 1978.

In addition, it operates the Pennsylvania SeniorLAW Helpline (1-877-PA SR LAW; 1-877-727-7529), from its facilities located at 100 South Broad Street, Suite 1810, Philadelphia, PA 19110 (Ofc: 215-988-1244; Fax: 215-988-1243).

The PA SeniorLAW Center (formerly the "Senior Citizen Judicare Project") provides advisories and resources on its website regarding areas of law of particular concern to seniors:

• Planning for Health Care Decisions


• Medical Consent: A New Tool for Grandparents and Others Caring for Children


• Avoiding Financial Exploitation


• Protection From Elder Abuse


• Custody for Grandparents and Other Kinship Caregivers


• Standby Guardianship: A Tool for Caregivers of Children


• Fair Housing Issues


• Tips for Homeowners: Is Taking in A Boarder A Good Idea?


• Home Repair Contracts: Don’t Hire a Contractor Before Reading!\


• Homeowners Assistance Program


• Know the Facts about Tax Delinquency: Don’t Put Your Home at Risk!


• Personal Planning for Senior Citizens: An Overview


• Revocable Living Trusts


• Selecting a Nursing Home


• What Will Happen to the Family House if You Enter A Nursing Home?


• Hearing Aid Sales and Legislation


• Identity Theft

After reviewing that list of legal concerns affecting the elderly, the comment made in the Press Release by Secretary of Aging Nora Dowd Eisenhower -- who reflected on the use of the new legal services grant money -- makes sense:

“Our goal is to more effectively connect older Pennsylvanians with free and low-cost legal services to help them avoid legal pitfalls that may threaten their independence, such as predatory lending practices or consumer scams,” said Secretary of Aging Nora Dowd Eisenhower.

“We also want to ensure that eligible older adults have access to programs that promote their safety and health, such as Medicare, Medicaid, Supplemental Security Income and disability benefits.”

Legal clinics in Pennsylvania that address elder law matters -- many of them associated with law schools, such as the Penn State Dickinson Elder Law Clinic, the University of Pittsburgh's Civil Practice Clinic, and the Widener University Law School's Civil Law Clinic -- should also welcome announcement of the new funding.

"Body Parts" Scandal in Philly and Beyond

On October 8, 2007, The Philadelphia Daily News reported about "a national body-parts scandal that led to thousands of charges against three funeral directors, two businessmen and two companies."

"Survivors' lives shaken in wake of body-parts scandal", written by staff writers Kitty Caparella, Gloria Campisi, & Julie Shaw, focused on the emotional suffering created by perpetrators of criminal fraud in offering funeral services, but selling body parts before disposal of the remains:

Theresa Fetzer fears that when she goes to the Palmer Cemetery to visit her parents' graves, her father's remains may not be there.Her father, John Fetzer, who died May 1, 2005, had cirrhosis of the liver, tuberculosis, bladder cancer and hepatitis C. * * *

Fetzer said her father was cremated at one of the companies charged in the scam, Liberty Cremation, on Ruth near Somerset -- just as her mother had been only five months earlier.

"They were literally throwing the ashes back in body bags that [bodies] came in," Fetzer said she was told by a detective.

"God forbid they had four or five people, instead of cremating them individually, they would cremate them together. Now, we don't even know if his ashes are in the box."

The Fetzer sisters, Theresa and Debbie, were among 48 grieving families identified by a Philadelphia grand jury who were defrauded. The other 196 victims had falsified records. * * *

The indictments were authorized by a grand jury that had convened in response to newspaper reports, as noted in an article entitled "Jury to Get Body Parts Probe: D.A. Will Present Witnesses in Guresome Case", posted June 13, 2006, on Philly.com, and then reposted.

The Philadelphia district attorney's office is gearing up to subpoena witnesses to testify before a grand jury about the role of the Louis Garzone Funeral Home, and possibly others, in the nationwide body-parts scandal, according to sources close to the investigation.

The grand jury's role has come to light just a couple of days after state officials negotiated with Louis Garzone and his younger brother, Gerald Garzone, also an undertaker, to voluntarily relinquish their funeral directors' and parlors' licenses.

"I am pleased that journalism worked," said Kevin Vickers, a former tissue-company worker who first told the Daily News in a February interview that he cut up dozens of corpses inside the Louis Garzone Funeral Home.

Vickers worked for the now-defunct Biomedical Tissue Services Ltd. (BTS), based in Fort Lee, N.J., which sold tainted body parts obtained from up to 30 funeral homes in New York, New Jersey and Philadelphia.

Vickers said that he drove to Louis Garzone's funeral home several times -- dissecting bodies and extracting veins, tissues and tendons -- on behalf of BTS.

The failed company has become the center of a nationwide scandal involving tainted body parts. The tissue company would pay funeral directors across the tri-state area up to $1,000 per body, Vickers said.

BTS would later receive as much as $7,000 per body, according to investigators. * * *

The state charged that the Garzones allegedly acted with "gross incompetence, negligence and misconduct over an 18-month period from 2003 to September 2005." * * *

That Grand Jury's action resulted in the recent criminal law developments, according to The Philadelphia Daily News' October 8th article:

These charges are "long overdue," said South Carolina attorney Kevin Dean, of Motley Rice LLC, who represents Norman Card, Sr., one of the 244 victims identified in the grand jury report.

"It's a victory for the families who've had their loved ones' human remains misappropriated," said Dean, who represents at least two victims whose remains were harvested, and 18 recipients in Pennsylvania who have received diseased tissue.

"But it's not broad enough to include all the people who are culpable," he said. * * *

Other reports recently tracked the Grand Jury's criminal indictments and the anticipated trials. See: "3 charged with selling body parts: Stolen bones, skin, tissue transplanted in unsuspecting patients worldwide", posted by MSNBC (10/04/07); and "Family files complaint in organ scandal", by David Gambacorta, posted by The Philadelphia Daily News (10/20/07).

In the article "Co-defendant sparring likely at body-parts trial", by Kitty Caparella, also posted by The Philadelphia Daily News (10/25/07), the scope of the pending proceeding was noted:

[On October 24, 2007,] Common Pleas Judge M. Teresa Sarmina nixed a Municipal Court preliminary hearing -- a request by the prosecution that was opposed by the defense -- after hearing from both sides.

Sarmina, who served as the supervising judge for the grand jury in the case, was familiar with the evidence in the 111-page grand-jury presentment.

She ruled that she was bypassing the hearing because of the logistics involved: 200 witnesses expected to testify; the transport of witnesses from various parts of the country at great cost to the court, and a large number of defense attorneys.

Seven attorneys will represent five defendants, if a New York lawyer, Mario Gallucci, is permitted to join the case.

Sarmina oversaw the grand-jury investigation that charged five co-defendants and two businesses with more than 10,000 counts including operating a criminal enterprise during 18 months in 2004-05. * * *

The alleged illegal activity affected other countries, such as the United Kingdom. See: "Patients receive stolen bones: Forty British patients have been implanted with body parts stolen from US mortuaries".

Criminal actions are not the only consequence of the investigated activities. Civil actions, seeking damages against the perpetrators for the benefit of survivors, now follow.

On October 19, 2007, a Philadelphia law firm issued a press release entitled "Anapol Schwartz Files Philadelphia Civil Complaint for Son of Local Woman Whose Corpse was Allegedly Illegally Harvested for Bone/Tissue Transplantation", found online through PR Wire:

Anapol, Schwartz, Weiss, Cohan, Feldman & Smalley, P.C. filed a civil complaint today in the Philadelphia Common Pleas Court (Docket # 002538) on behalf of the son of a local woman whose corpse was allegedly illegally harvested for bone and tissue transplantation by Philadelphia-based cremation company, Liberty Cremation, Inc.

This is the latest in a spate of civil lawsuits stemming from the high profile body-parts scandal, in which a dentist, funeral home owners/directors and cremation companies in Pa., N.J. and N.Y. are being charged with pilfering bones and tissue from the dead. * * *

"These families and individuals have experienced undue suffering and pain. We must expose those responsible for such monstrous acts and hold them accountable," Larry Cohan said.

The Philadelphia complaint follows a New Jersey one, recently filed in the Superior Court of New Jersey, Bergen County (Docket # L7198-07) by Anapol Schwartz on behalf of a couple whose brother's body parts were allegedly illegally harvested. * * *

The Philadelphia Daily News articles had reported -- prior to the filing of the criminal & civil actions mentioned above -- that "[t]housands of lawsuits have been filed nationwide since 2005 when the Food and Drug Administration halted BTS' operation."

Update: 10/26/07 at 6:30 p.m.:

I just noticed that the Pennsylvania Funeral Directors Association, per Kathleen K. Ryan, Esq., its General Counsel & Chief Operating Officer, posted a formal statement in reaction to the scandal, entitled "A Statement From The Pennsylvania Funeral Directors Association Concerning Recent Theft Of Body Parts".

She began by stating the disgust of that Association's members to the alleged criminal activities conducted by those few funeral directors in Philadelphia [Links added.]:
I believe I speak for each and every member of the Pennsylvania Funeral Directors Association (PFDA) when I say that we are appalled and disgusted by the alleged behavior and heinous abuse of the public trust involving the recent body part theft scandal. With their alleged actions, the Garzones and Mr. McCafferty have sullied the reputation of every funeral director in the state and the nation.

Our hope is that the public will recognize that the actions of these misguided men is an isolated incident and by no means represents the professional conduct of licensed funeral directors. * * *

The Pennsylvania State Board of Funeral Directors, which oversees and monitors licensed funeral directors, has already taken action against the Garzones and Mr. McCafferty. They have either had their licenses revoked or have surrendered their licenses and can not practice as funeral directors in the state of Pennsylvania.

Like the PFDA, the State Board is committed to the proper conduct of funeral directors, safeguarding the interests of the public and upholding the standards of the profession.

Update: 11/01/07:

Professor Gerry W. Beyer, author of the Wills, Trusts & Estates Prof Blog, noted my posting in one of his own on Thursday, November 1, 2007, entitled "Illegally harvested body-parts scandal distresses the nation".

PA PEF Code Revisions Proposed

On October 22, 2007, the PA Joint State Government Commission posted a Report, entitled "Probate, Estates, and Fiduciary Code - Proposed Amendments", derived from its Advisory Committee on Decedents' Estates Laws, addressed to the Pennsylvania General Assembly, recommending omnibus changes to the PA Probate, Estates & Fiduciaries Code, Title 20, of PA Consolidated Statutes. The full Report can be accessed here (PDF, 64 pages).

What is the JSGC-ACDEL?

The Joint State Government Commission Advisory Committee on Decedents’ Estates Laws is a standing group of attorneys and judges from across the Commonwealth who assist the General Assembly by recommending improvements to Pennsylvania law relating to Title 20 of the Pennsylvania Consolidated Statutes (20 Pa.C.S.), known as the Probate, Estates and Fiduciaries Code, and related statutes.

Since 1945, the Advisory Committee has provided expertise and advice in formulating legislation aimed at modernizing Pennsylvania law to make it more efficient. After reaching consensus on its legislative recommendations, the Advisory Committee presents its recommendations to the Task Force on Decedents’ Estates Laws, which is a bicameral and bipartisan panel of legislators.

The Task Force then considers the recommendations and decides whether to authorize the Joint State Government Commission to publish a report containing the recommendations, which serve as a basis for legislation. * * *

On October 17, 2007, the Task Force authorized both the publication of a report containing the recommendations of the Advisory Committee and the introduction of the legislation contained in this report. * * *

What statutes would be affected by the recommendations in the October, 2007 JSGC-ACDEL Report?

The newly-issued Report contains significant, remedial or clarification changes recommended for the PEF Code, as discussed over the past two years.

The Report provides background about the concerns addressed, and explains the intended effects of the changes [links added].

• Proposed Amendments to the Uniform Trust Act
• On July 7, 2006, Senate Bill 660 of 2005 was enacted as amended and became Act No. 98 of 2006. The provisions of 20 Pa.C.S. Chapter 77 became effective on November 6, 2006.
• Following the enactment, the need arose to amend several provisions of 20 Pa.C.S. Chapter 77.
• On February 8, 2007, the Advisory Committee met to discuss and reach consensus on the proposed amendments and comments, which are contained in this report.
• In addition, conforming amendments are proposed for 20 Pa.C.S. § 3162 (advertisement of grant of letters), which are also contained in this report.

• Proposed Amendments Regarding the Repeal of the Rule Against Perpetuities
• Act No. 98 of 2006 also contained amendments regarding the rule against perpetuities.
• However, the Advisory Committee revisited the issue and concluded that the total repeal of the rule against perpetuities creates the possibility of an inadvertent triggering of the Delaware tax trap, an arcane and archaic provision in §§ 2041(a)(3) and 2514(d) of the Internal Revenue Code.
• On February 8, 2007, the Advisory Committee met to discuss and reach consensus on the proposed amendments.
• The proposed amendments, along with an explanatory note, are contained in this report and concern § 6107.1(b) (applicability of rule against perpetuities).

• Proposed Amendments Regarding the Enforcement of the Contribution or Exoneration of Federal Estate Tax
• On February 8, 2006 and February 8, 2007, the Advisory Committee met to discuss and reach consensus on amendments to 20 Pa.C.S. § 3706 (enforcement of contribution or exoneration of Federal estate tax), in light of the case of In re Estate of Zambrano [875 A.2d 307 (Pa. Super. 2005)], in which the Superior Court held that a party did not have to pay his apportioned share of Federal estate tax until the fiduciary had first paid the tax in full and the Federal estate tax return had been fully processed by the Internal Revenue Service.
• The Advisory Committee believed that this holding is inconsistent with the original intent of § 3706.
• The proposed amendments and comment regarding § 3706 are contained in this report.

• Proposed Amendments to the Uniform Principal and Income Act
• On February 8, 2006 and February 8, 2007, the Advisory Committee met to discuss and reach consensus on amendments to 20 Pa.C.S. Chapter 81 (Pennsylvania Uniform Principal and Income Act).
• First, the Advisory Committee considered proposed language amending the definition of income in § 8105(d)(3) and adding paragraph (5.1) to § 8105(e) to provide that the trustee may, in the trustee's discretion from time to time, determine whether to average the net assets of the trust over a smoothing period of three, four or five years.
• Second, the Advisory Committee considered amendments to § 8149 (retirement benefits, individual retirement accounts, deferred compensation, annuities and similar payments) and a comment stating that the amendments to subsection (c) specifically confirm the power of a trustee to exercise the power to adjust, the power to convert to a unitrust and the power to draft a trust as a unitrust independently with respect to retirement benefits and a trust to which they are payable, as allowed by Federal tax law.
• The proposed amendments and comment regarding the Uniform Principal and Income Act are contained in this report.

• Proposed Amendments Regarding Death During a Divorce Proceeding
• Act 175 of 2004 amended 23 Pa.C.S. (the Domestic Relations Code) and added §3323(d.1) * * *.
• The act also added 20 Pa.C.S. § 2203(c) * * *.
• However, these amendments only address a surviving spouse’s right of election.
• The amendments do not address intestacy, the modification of a will by circumstance, the modification of a trust by circumstance, and the modification of life insurance and pensions by circumstance.
• Accordingly, on February 8, 2007, the Advisory Committee, after consultation with the Joint State Government Commission Advisory Committee on Domestic Relations Law, reviewed proposed amendments to 20 Pa.C.S. §§ 2106 (forfeiture), 2507 (modification by circumstances), 6111.1 (modification by divorce) and 6111.2 (effect of divorce on designation of beneficiaries) and reached consensus on the need to amend these provisions.
• The proposed amendments regarding §§ 2106, 2507, 6111.1 and 6111.2 are contained in this report.
• The Advisory Committee did not believe that any amendment to 20 Pa.C.S. § 5605(c) was necessary.
• Furthermore, the Advisory Committee acknowledged that an individual could always draft a provision in his or her will leaving property to his or her spouse, specifying that such a gift is to be effective even though divorce proceedings are commenced. That intention would be given effect, and the testamentary gift would be honored and taken into account in the equitable distribution proceeding.

• Proposed Amendments Regarding Powers of Attorney
• The Superior Court in In re Weidner [895 A.2d 11 (Pa. Super. 2006), appeal granted, 906 A.2d 544 (Pa. 2006).] held that if an individual in a power of attorney authorizes an agent to engage in any transaction authorized by 20 Pa.C.S. Chapter 56, that authorization is not enough to alert the individual that the agent could change the beneficiary of a life insurance policy.
• The court determined that the power of attorney in this case did not specifically provide the agent with the authority to engage in any matter relating to insurance. Therefore, the court did not hold that the agent possessed the authority but misused it, but rather that the agent did not have it in the first place.
• On February 8, 2007, the Advisory Committee reviewed the implications of this holding and determined that it cast some doubt on the effectiveness of the short form power of attorney permitted by 20 Pa.C.S. § 5602.
• Accordingly, it reviewed and reached consensus on an amendment to § 5603(p).
• Subsequently, it determined that similar language should appear in § 5603(q), regarding the power to engage in retirement plan transactions.
• The proposed amendments regarding § 5603 are contained in this report.

More details regarding the specific statutory sections affected are set forth in the Report's "Summary of Recommendations", on pages 7-10.

Involved estate & trust practitioners should read the full Report in anticipation of the PA Legislature's consideration of these recommendations, which appear non-controversial & beneficial.

Update: 12/07/07:

On Friday, December 7, 2007, an "omnibus" amendment bill, based on the Report referenced above, was introduced in the Pennsylvania Senate.

See: PA EE&F Law Blog posting "Omnibus Bill re PEF Code Introduced" (12/07/07).

Update: 09/25/08:

With persistence, the current version of SB 1203, as supported by both the PA Bar Association and the PA Bankers Association, can be approved by the House and sent to the Governor for signature into law. See: PA EE&F Law Blog posting"PBA Supports SB 1203 on PA UTA" (09/25/08).

PBI's "Estate Law Institute" Nov 28th-29th

The Pennsylvania Bar Institute will present its 14th Annual "Estate Law Institute" on November 28 (Wed) & 29 (Thu), 2007, at the Pennsylvania Convention Center, in Philadelphia, PA.

It is co-sponsored by the Probate & Trust Law Division, of the Real Property, Probate & Trust Law Section, of the Pennsylvania Bar Association.

A well-known "keynote" speaker will begin each of the Institute's two full days:

Wednesday’s Keynote Speaker:

Bruce S. Ross will open this year’s Institute discussing his role as an attorney for The Estate of Anna Nicole Smith and the estate administration issues.

He is partner in the Los Angeles, California office of Luce, Forward, Hamilton & Scripps LLP and is a nationally recognized trial lawyer with over 30 years experience litigating trust, estate and conservatorship cases. He has appeared pro hac vice in several states to handle such litigation and has consulted on cases with colleagues overseas on international succession matters, including, in particular, Switzerland, Israel and Australia. Mr. Ross is a consultant to and expert witness for plaintiffs and defense attorneys, accountants and malpractice insurance carriers in the areas of estate planning, probate, fiduciary litigation, and professional responsibility. He has been listed in The Best Lawyers in America® for more than 10 years. He is a Fellow (1983-present) and President (2006-2007), American College of Trust and Estate Counsel (ACTEC).

Thursday’s Keynote Speaker:

Natalie Choate will kick-off Thursday’s program with a session on The Best & Worst Planning Ideas for Your Client’s Retirement Benefits.

She is Of Counsel to Bingham McCutchen, LLP and the author of two books, Life and Death Planning for Retirement Benefits and The QPRT Manual. She is the former regent, and current chair of Employee Benefits Committee, American College of Trust and Estate Counsel. Ms. Choate was named "Estate Planner of the Year" by the Boston Estate Planning Council, and awarded the "Distinguished Accredited Estate Planner" designation by the National Association of Estate Planners and Councils. She is listed in The Best Lawyers in America.

The topics to be covered, and the speakers who will cover them, are impressive.

Topics:

• Overview of Estate Planning Objectives, Documents and Techniques
• Getting Out of Trusts
• Planning for Your Client’s Special Needs Child
• Recent Developments in Pennsylvania Practice
• Preparation of the Gift Tax Return Form 709 – The Law and the Lore
• Guardianships of Incapacitated Persons
• Asset Protection Planning Civility and Professionalism in the Practice of Law (ethics)
• Graduate Level 529 & Other Education Funding
• Overview of Taxes Upon Death
• Pennsylvania Uniform Trust Act One Year Later: A Symposium
• Act 43 and Deficit Reduction Act Issues
• Probate & Estate Distribution Issues
• Life Insurance Trust
• Powers of Attorney and Gifting Powers
• Medical Assistance, Estate Recovery in Depth
• Practical Tips for Creating Usable POAs
• Minimizing Your Risk in Estate Planning-Avoiding Litigation
• FLPs & Section 2036
• ABCs of IRAs
• Drafting Health Care Directives Post Act 169
• Estate Planning for the Non-Traditional Family
• Lawyers as Fiduciaries (ethics)
• Update on Pennsylvania Inheritance Tax & PA Estate Tax
• Business Valuations
• GSTs for Beginners
• Getting the Most $$ from Your Charitable Trust – Section 8113 in Theory and Practice
• Software Comparisons
• The Best & Worst Planning Ideas for Your Client’s Retirement Benefits
• Case Studies in Estate Planning for Retirement Benefits: Practical Ideas for Real Life Situations
• Conducting an Effective Initial Client Interview
• Death and Taxes: The Inherited Retirement Plan
• Debts & Claims & Closing the Estate: Court Accountings & Family Agreements
• Issues in Charitable Giving
• Ethics Update
• Special Needs Trusts
• Fine Art Appraisals

Speakers:

• R. Michael Daniel, Esq., Cohen & Grigsby, PC, Pittsburgh
• James L. Hollinger, Esq., Smith Aker Grossman and Hollinger, LLP, Norristown
• Terrance A. Kline, Esq., EDITOR, Law Office of Terrance Kline, Media
• Pam H. Schneider, Esq., Gadsen Schneider & Woodward, King of Prussia
• Martha A. Zatezalo, Esq., PNC Bank, Pittsburgh
• J. Brooke Aker, Esq., Smith, Aker, Grossman & Hollinger, LLP, Norristown
• Jerald David August, Esq., Fox Rothschild LLP, West Palm Beach, FL
• Martyn S. Babitz, Esq., Hawthorn--A PNC Company, Philadelphia
• Mary Jane Barrett, Esq., CELA, Harkins and Harkins, Philadelphia
• Lawrence L. Barth, Esq., Office of the Attorney General, Philadelphia
• Thomas A. Boulden, Esq., Timony Knox LLP, Fort Washington
• Timothy F. Burke, Jr., Esq., Tener VanKirk Wolf & Moore, PC, Pittsburgh
• Jerry B. Chariton, Esq., Chariton & Schwager, Wilkes-Barre
• Robert R. Church, Esq., Keefer Wood Allen & Rahal, LLP, Harrisburg
• J. Paul Dibert, Business & Trust Valuation Manager, Dept. of Revenue, Harrisburg
• Hon. Calvin S. Drayer, Jr., Court of Common Pleas of Montgomery County, Orphans' Court Division, Norristown
• Linda Rhone Enion, Esq., Lovett Bookman Harmon Marks, Pittsburgh
• Daniel B. Evans, Esq., Wyndmoor
• Karen A. Fahrner, Esq., Bryn Mawr Trust Company, Bryn Mawr
• Kim D. Fetrow, Esq., Heckscher, Teillon, Terrill & Sager, PC, West Conshohocken
• Aubrey H. Glover, Esq., Cohen & Grigsby, PC, Pittsburgh
• Daphne Goldman, Esq., PNC Bank NA, Philadelphia
• Elizabeth J. Goldstein, Esq., Law Office of Elizabeth J. Goldstein, PC, Camp Hill
• Paul C. Heintz, Esq., Obermayer Rebmann Maxwell & Hippel LLP, Philadelphia
• Neil E. Hendershot, Esq., Goldberg Katzman, P.C., Harrisburg
• Kathleen D. Hendrickson, Esq., President, Achieva Family Trust, Pittsburgh
• Kevin Holleran, Esq., Gawthorp, Greenwood & Halsted, P.C., West Chester
• Benjamin L Jerner, Esq., Jerner & Palmer, P.C.
• Kenneth E. Lewis, Esq., Fox Rothschild, LLP, Pittsburgh
• Jeffrey J. Malak, Esq.
• Kathy C. Mandelbaum, Esq., Director of the Graduate Tax Program & Assoc. Professor of Law, Temple University Beasley School of Law, Philadelphia
• Dennis C. McAndrews, Esq., McAndrews Law Offices, P.C., Berwyn
• John F. Meck, Esq., Eckert Seamans Cherin & Mellott, LLC, Pittsburgh
• Sara A. Mercer, Esq., Law Office of Sara A. Mercer, Pittsburgh
• J. Mark Munson, Esq., Buchanan Ingersoll & Rooney, P.C., Pittsburgh
• Hon. Stanley R. Ott, Montgomery County Court of Common Pleas, Norristown
• Tiffany L. Palmer, Esq., Jerner & Palmer, PC, Philadelphia
• G. Bradley Rainer, Esq., Eckell Sparks Levy Auerbach Monte Rainer Sloane, PC, Media
• Dennis C. Reardon, Esq., Reardon & Associates, LLC, Wayne
• Margaret E.W. Sager, Esq., Heckscher Teillon Terrill & Sager, PC, West Conshohocken
• David E. Schwager, Esq., Chariton & Schwager, Wilkes-Barre
• Heather Semple, AAA, USOAO, ECI Fine Art Appraisal, Sewickley
• Jacqueline J. Shafer , Esq., High Swartz Roberts & Siedel LLP, Norristown
• John A. Terrill, II, Esq., Heckscher, Teillon, Terrill & Sager, PC, West Conshohocken
• Kirby G. Upright, Esq., King Spry Herman Freund & Faul LLC, Bethlehem
• Robert I. Whitelaw, Esq., Obermayer Rebmann Maxwell & Hippel LLP, Philadelphia
• Andrew Wilusz, ASA, Value Management, Inc., Newtown
• Edward P. Wojnaroski, Jr., Esq., Williams, Coulson, Johnson, Lloyd, Parker and Redesco, PC, Pittsburgh
• Robert B. Wolf, Esq., Tener, VanKirk, Wolf & Moore, PC, Pittsburgh
• C. Thomas Work, Esq., Stevens & Lee, P.C., Reading

I will be there, moderating two sessions (one each day) on software & Internet resources for estate & trust practitioners -- one session about estate administration software & online resources; and the other about estate planning software & online resources. Our session presenters will include Dan Evans, Kathy Dever, Eugene Gillin, Vince Lackner, Don Tappin, and myself.

UPDATE: 12/14/07:

On November 28, 2007, "Estate Planning Software for the Professional" was the topic of a one-hour presentation during the second day of the 14th Annual "Estate Law Institute". See: PA EE&F Law Blog posting "Estate Planning & Drafting Software" (12/11/07).

On November 29, 2007, "Fiduciary Administration Software for the Professional" was the topic of a one-hour presentation during the second day of the 14th Annual "Estate Law Institute". See: PA EE&F Law Blog posting "Fiduciary Administration Software" (12/14/07).

Estate Theft Charged by PA AG in Scranton

On October 17, 2007, The Times-Tribune (Scranton, PA), reported, in an article entitled "Activist’s wife charged with stealing from dad’s estate", by Stacy Brown, that a woman "faces up to seven years in prison after her arrest Tuesday on a charge of stealing money from her deceased father’s estate."

Joanne Pilchesky, 54, * * * was indicted by a state grand jury for illegally taking more than $152,700 from her late father’s bank accounts.

She was arraigned on a charge of theft, a third-degree felony, by District Justice James P. Kennedy and released on her own recognizance. * * *

The case is somewhat unusual in that the Pennsylvania Attorney General's Office brought the criminal indictment, not a local district attorney's office.

According to a 15-page indictment and arrest warrant, on April 25, 2006, Lackawanna County District Attorney Andrew Jarbola requested the office of the state’s attorney general assume jurisdiction over allegations of financial irregularities with the estate of Raymond Conrad, Mrs. Pilchesky’s late father.

The request was made due to a lack of resources, a perceived conflict of interest, and the fact that the events involved in the investigation spanned several counties, including Erie and Lackawanna, according to court records. * * *

This case is not mentioned on the PA AG's website.

The "conflict of interest" was not specified in the article. A "conflict" may have derived from other events in Lackawanna County noted by that newspaper, and that same reporter, in an article relating to the defendant's husband entitled "Latest Pilchesky suit is over the top" (04/15/07).

The recent article about the alleged theft of a daughter from a parent's estate recited alleged elements of family estrangement, an elder's health changes, his execution of a new power of attorney in favor of the daughter, and transfers by the daughter, as agent, near or after the principal's death.

Mrs. Pilchesky was one of five estranged children of Mr. Conrad, according to the presentment, and had little contact with her father until he suffered an aneurysm in 2002 or 2003.

During his recuperation from surgery, Mrs. Pilchesky began to visit regularly, the presentment states. Within a year, she convinced Mr. Conrad to sign a document she had drafted giving her power of attorney over the estate, the filing charged.

But Mr. Conrad had already given power of attorney to his niece, Charlene Snyder.

The power of attorney gave Mrs. Pilchesky authority to access Mr. Conrad’s three bank accounts, but all transactions were supposed to be for Mr. Conrad’s care, investigators said.

Mr. Conrad died Sept. 21, 2005 in a nursing home in Erie. Mrs. Pilchesky was present at the time of his death but failed to notify his banks, investigators allege.

At the time of his death, Mr. Conrad had $155,776.51 in three accounts, the presentment charges. Investigators allege that from Sept. 20 to Oct. 27, 2005, she nearly drained the accounts, writing checks to herself in the names of Joanne Ricci — her maiden name — and Joanne Pilchesky. * * *

The legal termination of the power of attorney document due to the principal's death, and the need for probate of a decedent's estate thereafter, were highlighted in the article:

Authorities, who said Mrs. Pilchesky was legally entitled to about $98,500 under terms of her father’s will, claim she had no legal authority to take any of the money and the estate should have gone through probate and been distributed.

Her power of attorney, they charge, expired upon Mr. Conrad’s death.

The article concluded by noting, "The Pilcheskys declined comment when contacted by The Times-Tribune."

PA S. Ct. Creates Orphans' Ct. Advisory Cte.

On October 17, 2007, the Pennsylvania Supreme Court announced creation of an Ad Hoc Advisory Committee to the Orphans' Court Procedural Rules Committee, and the appointment of eight experienced O.C. Judges "to review comprehensive statewide rules" affecting Orphans' Court matters.

The press release issued by the Administrative Office of Pennsylvania Courts is entitled "Advisory Group of Orphans' Court judges Created to Review Comprehensive Statewide Rules".

The Supreme Court of Pennsylvania today announced that it will tap the knowledge of an eight-member working group of experienced judges from across the Commonwealth to enhance procedures for adoptions, guardianships, wills and other Orphans' Court matters.

The Orphans' Court Procedural Rules Committee is undertaking a substantial review of current rules governing statewide practice and procedure in Orphans' Court.

The newly created Ad Hoc Advisory Committee to the Orphans' Court Procedural Rules Committee will provide valuable input as the Orphans' Court Committee considers the feasibility and practical need for comprehensive statewide Orphans' Court rules. * * *

Judges of various PA Orphans' Court divisions who were appointed to serve on the new Ad Hoc Advisory Committee include:

• Hon. Robert G. Bigham (Adams Co.)
• Hon. Gary P. Caruso (Westmoreland Co.)
• Hon. Calvin S. Drayer Jr. (Montgomery Co.)
• Hon. Todd A. Hoover (Dauphin Co.)
• Hon. Anne E. Lazarus (Philadelphia Co.)
• Hon. Frank J. Lucchino (Allegheny Co.)
• Hon. John C. Mott (Bradford Co.)
• Hon. Joseph D. O'Keefe (Philadelphia Co.)

A few newspapers reported issuance of the Press Release:

• "Judge Mott says he’s honored by appointment", by Eric Hrin, posted on October 19, 2007, by the Daily & Sunday Review (Towanda, PA).
  

• "Dauphin County judge appointed to court panel", posted on October 17, 2007, by the Patriot-News (Harrisburg, PA).
  

The creation of this Ad Hoc Advisory Committee, its staffing with experienced Orphans' Court trial judges, and its charge to provide a comprehensive review & reliable input to the PA Orphans' Court Procedural Rules Committee, now evidence a significant, renewed commitment by the Pennsylvania Supreme Court to this division of the county courts.

According to "A History of Pennsylvania Courts", the Orphans' Court in the Commonwealth was first authorized in 1776. See: "Constitution of Pennsylvania, 1776". In 1968, by constitutional amendment, that separate court became a division of the various courts of common pleas.

The orphans' court divisions, derived from courts of "equity", protect special constituencies, according to an "Orphans' Court Description" posted by the Philadelphia Courts:

The Orphans' Court Division is responsible for adjudicating a wide range of matters and the name of the Court is derived from the more general definition of "orphan", not the more common parlance of a child whose parents are deceased.

Instead, the purpose of the Orphans' Court is to protect the personal and property rights of all persons and entities that may not be otherwise capable of handling their own affairs. Included under this rubric are minors, incapacitated persons, decedents estates, nonprofit corporations and trusts – both inter vivos (between the living) and testamentary. * * *

It is the role of the Court, in any of these matters, to ensure that the best interests of the person or entity are not compromised. It has been a longstanding tenet of the Orphans' Court to provide access to the courts for those who may lack the ability to defend or represent themselves. * * *

The jurisdiction of the Orphans' Court Division within the Court of Common Pleas is now set by statute, in Title 20 of PA Consolidated Statutes (the "PA Probate, Estates & Fiduciaries Code"). Mandatory jurisdiction is set forth in Section 711; and non-mandatory jurisdiction is set forth in Section 712.

The cases filed in the orphans' court divisions likely will increase, both in number & complexity, following trends observed in Pennsylvania's aging population. See: PA EE&F Law Blog postings PA's "2020 VISION" Project: Part I (02/22/07) & PA's "2020 VISION" Project: Part II (02/23/07).

This caseload likely will expand due to increasing elder abuse, contested capacity issues, oversight of charitable organizations, recent legislative enactments on health care directives, durable powers of attorney, & trusts, and anticipated further legislative reforms of guardianships, disposition of remains, alternative dispute resolution, & related privacy issues.

Indeed, in the past two years, the PA Supreme Court Orphans' Court Rules Committee has been extremely active, according to its posted Docket of Activities. Most of these developments have been reported on this Blog (See: Blog Label "Orphans' Court Practice").

I have advocated for greater attention by the PA Supreme Court to the Orphans' Court Division. I offered some ideas for study. See: PA EE&F Law Blog postings "In the State of PA's Courts, Where is the OC?" (06/05/07).

The recent Press Release confirms the need for changes and the sweep of the issues that can be addressed:

"This is a large and complicated task, so it only makes sense to draw on the unique insight of those with a wide variety of experience and understanding of this intensely personal and multifaceted area of court practice," Chief Justice of Pennsylvania Ralph J. Cappy said.

"The intent here is to simplify the current system and standardize governing procedures so everyone has a clearer idea of what is expected and better outcomes are realized for the citizens of Pennsylvania."

The Orphans' Court divisions of the Courts of Common Pleas typically handle adoptions, guardianships of minors and incapacitated persons, oversight of estate and trust administration, contested wills and disputes over the appointment and removal of fiduciaries - or those accountable to the court for administering a trust or estate.

The proposed rules review is intended to:

• Promote standardization of statewide practice and reduce variations caused by reliance on local practice.
• Provide better direction to practitioners and judges throughout the state, especially in counties without dedicated Orphans' Court divisions.
• Clarify certain procedures involving citation practice and pleadings.
• Harmonize Orphans' Court proceedings with general civil practice to the extent possible, given the unique subject matter within Orphans' Court jurisdiction.

I am pleased -- as should be any Pennsylvania Orphans' Court practitioner -- that greater attention will be paid to this specialized court division, by such highly qualified judges.

Their efforts should be supported by practitioners, perhaps through input offered by our bar association practice sections.

"I Inventory the SBR, AOW, DD, & Suppressor at . . ."

The previous posting on this Blog, "I bequeath my machine gun to . . .", garnered such great interest -- both from professionals and from gun enthusiasts -- that Joshua G. Prince wrote a follow-up article, "Grandpop’s Machine Gun in the Chest, Part II", for posting.

Josh is one of the students in my current Elder Law class at Widener University School of Law (Harrisburg Campus). As before, I edited the article for posting here. We hope that you find it useful on this somewhat arcane area that may affect a few estate administrations.

Grandpop’s Machine Gun in the Chest, Part II

As an estate attorney, have you ever made a determination that a cane or pen, in an estate, is not a firearm? Have you ever measured the length of a rifle’s or shotgun’s barrel? What about determining whether a 2 liter bottle is actually a sound reducing device for a firearm, classified as a silencer? After finding a shotgun, have you ever inquired as to whether it is classified as a “destructive device?”

While some may be chuckling, I assure you that your client will not be when faced with up to ten (10) years in prison and two-hundred and fifty thousand dollars in fines.[1]

For purposes of this article, I will deal with Short Barreled Rifles (SBRs), All Other Weapons (AOWs), Suppressors, and Destructive Devices (DDs).

A SBR is defined as a firearm “[H]aving a barrel or barrels of less than 16 inches in length; (4) a weapon made from a rifle if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 16 inches in length.”[2] To determine the length of a shotgun’s or rifle’s barrel, “[T]he bolt or breechlock of the weapon should be closed, the weapon cocked, and a rod inserted down the barrel through the bore until it contacts the face of the bolt…the rod should then be marked to denote the barrel end, withdrawn from the weapon and measured.”[3]

It continues, “A barrel length so determine which is less than 18 inches in length on a shotgun or less than 16 inches on a rifle, will establish that the weapon comes within the purview of the National Firearms Act.”[4] Furthermore, the overall length of a shotgun or rifle is, “[T]he distance between the extreme ends of the weapon measured along a line parallel to the center line of the bore.”[5] It must be noted that a pistol, with a shoulder stock, whether or not attached, may constitute a SBR.[6]

An AOW is defined as, “[A]ny weapon or device capable of being concealed on the person from which a shot can be discharged through the energy of an explosive, a pistol or revolver having a barrel with a smooth bore designed or redesigned to fire a fixed shotgun shell, weapons with combination shotgun and rifle barrels 12 inches or more, less than 18 inches in length, from which only a single discharge can be made from either barrel without manual reloading, and shall include any such weapon which may be readily restored to fire. Such term shall not include a pistol or a revolver having a rifled bore, or rifled bores, or weapons designed, made, or intended to be fired from the shoulder and not capable of firing fixed ammunition.”

Traditionally, AOWs included gadget devices, Nazi belt buckle firearms, and glove firearms.[7] Today, AOWs also include cane, cell phone, crutch, and pen guns, pistols with a vertical/forward grip, and other disguised firearms. Currently, the BATFE asserts that a pistol in a leather wallet holster is an AOW,[8] which is contrary to § 5845(e). However, any device which the Attorney General finds “is primarily a collector’s item and is not likely to be used as a weapon,” exempts that device from the purview of the NFA.[9]

A suppressor/silencer is a device for “[S]ilencing, muffling, or diminishing the report of a portable firearm, including any combination of parts, designed or redesigned, and intended for use in assembling or fabricating a firearm silencer or firearm muffler, and any part intended only for use in such assembly or fabrication.”[10] Over the past decade, there have been some interesting devices determined to be suppressors.

In Virginia, a fuel filter, which was modified to thread on the end of a .22 caliber rifle barrel, was a suppressor, because it reduced the noise of the gunshot.[11] Another interesting development is the registration of a thread adapter, which allows one to thread a 2 liter bottle onto a rifle or pistol. The BATFE is currently allowing individuals to register the adapter, but the 2 liter bottle, may constitute a part “[I]n assembling or fabricating a firearm silencer or firearm muffler.”[12]

A DD is defined as, “(1) any explosive, incendiary, or poison gas (A) bomb, (B) grenade, (C) rocket having a propellant charge of more than four ounces, (D) missile having an explosive or incendiary charge of more than one-quarter ounce, (E) mine, or (F) similar device; (2) any type of weapon by whatever name known which will, or which may be readily converted to, expel a projectile by the action of an explosive or other propellant, the barrel or barrels of which have a bore of more than one-half inch in diameter, except a shotgun or shotgun shell which the Secretary finds is generally recognized as particularly suitable for sporting purposes; and (3) any combination of parts either designed or intended for use in converting any device into a destructive device as defined in subparagraphs (1) and (2) and from which a destructive device may be readily assembled.”[13]

In 1994, the BATFE ruled that non-sporting use shotguns were DDs, and thus, proclaimed the USAS-12, Striker-12, and Streetsweeper shotguns, DDs.[14] DDs, specifically explosive devices, may be cause for alarm, since the BATFE has prosecuted individuals for having smoke grenades,[15] ground burst projectile simulators,[16] firecrackers,[17] and flashbangs.[18]

However, these should, and in many cases did, fall under the exception of “any device which is neither designed nor redesigned for use as a weapon.”[19] As Mr. Halbrook States, “There are numerous ordinary household products which, if assembled or intended to be assembled, may be destructive devices. While gasoline, bottles, and rags all may be legally possessed, their combination into the type of home-made incendiary bomb commonly known as a Molotov cocktail creates a destructive device.”[20]

As is readily apparent, the issues of SBRs, AOWs, Suppressors, and DDs, in estates, are cause for concern, for any attorney. Surely, very few, if any, estate attorneys check a cane or pen of the decedent, but such could constitute malpractice, and one’s client being imprisoned and fined.

My grandfather, an 88 year old attorney, stated, "I have never come across any machineguns or NFA weapons in an estate."

This would be true if you are not sufficiently aware to look for them.

---

Footnotes:

[1] 26 U.S.C.S. §§ 5861(d),(j); 26 U.S.C.S. § 5872; 49 U.S.C.S. §§ 781-788.

[2] 26 U.S.C.S. § 5845 (a). Furthermore, § 5845(c) states: “The term rifle means a weapon designed or redesigned, made or remade, and intended to be fired from the shoulder and designed or redesigned and made or remade to use the energy of the explosive in a fixed cartridge to fire only a single projectile through a rifled bore for each single pull of the trigger, and shall include any such weapon which may be readily restored to fire a fixed cartridge.”

[3] Rev. Rul. 67-424, C.B. 1967-2, 464.

[4] Id.

[5] 27 C.F.R. § 179.11 (“firearm”).

[6] See U.S. v. Zeidman, 444 F.2d 1051, 1052 (7^th Cir. 1971); but, see U.S. v. Thompson/Center Arms Co., 504 U.S. 505 (1992). However, the BATFE stated that certain pistols, with shoulder stocks, were removed from the NFA. Letter from C. Michael Hoffman, Assistant Director (technical and Scientific Services), BATF, May 29, 1981, T:T:F:CHB, 7540, reproduced by Stephen Halbrook, Firearms Law Deskbook, 451-52 (Thomson/West 2007).

[7] Bryan v. U.S., 373 F.2d 403, 406 n.4, 67-1 U.S. Tax Cas. (CCH) P 15742 (5^th Cir. 1967), quoting 26 C.F.R. § 179.35 (now repealed).

[8] Stephen Halbrook, Firearms Law Deskbook, 458 (Thomson/West 2007).

[9] § 5845(a); While this section refers to the Secretary (of the Treasury), this was changed by the Homeland Security Act, which transferred the BATFE from the Department of the Treasury to the Department of Justice.

[10] § 5845(a)(7).

[11] Gray v. Com., 30 Va. App. 725, 729 (1999), judgment aff’d, 260 Va. 675, 678 (2000).

[12] § 5845(a)(7). This poses an interesting problem of whether individuals need to register their soda bottles, or risk violating the NFA.

[13] § 5845(a)(8)

[14] ATF Rul. 94-1 and 94-2, ATFB 1993-94, 21-26.

[15] U.S. v. Homa, 608 F.2d 407, 209 (10^th Cir. 1979).

[16] U.S. v. Dalpiaz, 527 F.2d 548, 551 (6^th Cir. 1975).

[17] U.S. v. Worstine, 808 F. Supp. 663, 664 (N.D. Ind. 1992).

[18] Stephen Halbrook, Firearms Law Deskbook, 471 (Thomson/West 2007).

[19] § 5845(a)(8)

[20] Stephen Halbrook, Firearms Law Deskbook, 472 (Thomson/West 2007).

Update: 06/27/08:

See: "Right to Keep and Bear Arms: Part I", posted on this Blog.