What is Orphan's Court?
Full Question:
Answer:
The answer will be a matter of determination for the court, based on all the facts and documents involved. Some of the factors, among others, that may be considered by the court may include whether the brother's estate was probated, and whether the aunt was a successor to the brother's shares. The language of the documents will need to be examined for any treatment of lapsed gifts.
The anti-lapse statute says that if a sibling, child, or nephew/niece mentioned in a will predeceases the testator, then their share goes to their children, unless the testator "explicitly manifests contrary intent." Pennsylvania's anti-lapse statute will apply unless the testator explicitly states that they want the bequest to lapse.
There may be a potential conflict of interest and ethical problem associated with the question of who an attorney who prepares a will represents - the fiduciary, the estate or trust or the surviving spouse. An attorney's representation of a subsequent client whose interests are materially adverse to a former client in a matter substantially related to matters in which he represented the former client is impermissible. Conflicts of interest are actionable at law independent of any violation of any code of professional responsibility.
Please see the anti-lapse statute for PA:
20 Pa.C.S.A. § 2514. Rules of interpretation
In the absence of a contrary intent appearing therein, wills shall be
construed as to real and personal estate in accordance with the following
rules:
(1) Repealed. 1976, July 9, P.L. 551, No. 135, § 10, imd.
effective.
(1.1) Construction that will passes all property. — A will shall
be construed to apply to all property which the testator owned at his
death, including property acquired after the execution of his will.
(2) Repealed. 1976, July 9, P.L. 551, No. 135, § 10, imd.
effective.
(3) Devises of real estate. All devises of real estate shall pass the
whole estate of the testator in the premises devised, although there be
no words of inheritance or of perpetuity.
(4) Meaning of "heirs" and "next of kin," etc.; time of ascertaining
class. A devise or bequest of real or personal estate, whether directly
or in trust, to the testator's or another designated person's "heirs" or
"next of kin" or "relatives" or "family" or to "the persons thereunto
entitled under the intestate laws" or to persons described by words of
similar import, shall mean those persons, including the spouse, who would
take under the intestate laws if the testator or other designated person
were to die intestate at the time when such class is to be ascertained, a
resident of the Commonwealth, and owning the estate so devised or
bequeathed: Provided, however, That the share of a spouse, other than the
spouse of the testator, shall not include the allowance under the
intestate laws. The time when such class is to be ascertained shall be
the time when the devise or bequest is to take effect in enjoyment.
(5) Time for ascertaining class. In construing a devise or bequest to a
class other than a class described in section 2514(4), the class shall be
ascertained at the time the devise or bequest is to take effect in
enjoyment, except that the issue then living of any member of the class
who is then dead shall take per stirpes the share which their deceased
ancestor would have taken if he had then been living.
(6) Meaning of "die without issue" and similar phrases. In any devise
or bequest of real or personal estate, the words "die without issue,"
"die without leaving issue," "have no issue," or other words importing
either a want or failure of issue of any person in his lifetime or at the
time of his death, or an indefinite failure of his issue, shall be
construed to mean a want or failure of issue in his lifetime or at his
death, and not an indefinite failure of his issue.
(7) Adopted children. — In construing paragraphs (9), (10) and
(11) of this section, relating to lapsed and void devises and legacies,
and in construing a will making a devise or bequest to a person or
persons described by relationship to the testator or to another, any
adopted person shall be considered the child of his adopting parent or
parents, except that, in construing the will of a testator who is not the
adopting parent, an adopted person shall not be considered the child of
his adopting parent or parents unless the adoption occurred during the
adopted person's minority or reflected an earlier parent-child
relationship that existed during the child's minority. An adopted person
who is considered the child of his adopting parent or parents under this
paragraph shall not be considered as continuing to be the child of his
natural parents except in construing the will of a natural kin, other
than the natural parent, who has maintained a family relationship with
the adopted person. If a natural parent shall have married the adopting
parent, the adopted person shall also be considered the child of such
natural parent.
(8) Persons born out of wedlock. — In construing paragraphs (9),
(10) and (11), relating to lapsed and void devises and legacies, and in
construing a will making a devise or bequest to a person or persons
described by relationship to the testator or to another, a person born
out of wedlock shall be considered the child of the natural mother and
also of the natural father if paternity of the natural father has been
determined pursuant to the provisions of section 2107 (relating to
persons born out of wedlock).
(9) Lapsed and void devises and legacies; substitution of issue. A
devise or bequest to a child or other issue of the testator or to his
brother or sister or to a child of his brother or sister whether
designated by name or as one of a class shall not lapse if the
beneficiary shall fail to survive the testator and shall leave issue
surviving the testator but shall pass to such surviving issue who shall
take per stirpes the share which their deceased ancestor would have taken
had he survived the testator: Provided, That such a devise or bequest to
a brother or sister or to the child of a brother or sister shall lapse to
the extent to which it will pass to the testator's spouse or issue as a
part of the residuary estate or under the intestate laws.
(10) Lapsed and void devises and legacies; shares not in residue. A
devise or bequest not being part of the residuary estate which shall fail
or be void because the beneficiary fails to survive the testator or
because it is contrary to law or otherwise incapable of taking effect or
which has been revoked by the testator or is undisposed of or is released
or disclaimed by the beneficiary, if it shall not pass to the issue of
the beneficiary under the provisions of clause (9) hereof, and if the
disposition thereof shall not be otherwise expressly provided for by
law, shall be included in the residuary devise or bequest, if any,
contained in the will.
(11) Lapsed and void devises and legacies; shares in residue. When a
devise or bequest as described in clause (10) hereof shall be included in
a residuary clause of the will and shall not be available to the issue of
the devisee or legatee under the provisions of clause (9) hereof, and if
the disposition shall not be otherwise expressly provided for by law, it
shall pass to the other residuary devisees or legatees, if any there be,
in proportion to their respective shares or interests in the residue.
(12) Repealed. 1976, July 9, P.L. 551, No. 135, § 10, imd.
effective.
(12.1) Property subject to a security interest. — A specific
devise or bequest of real or personal property passes that property
subject to any security interest therein existing at the date of the
testator's death, without any right of exoneration out of any other
estate of the testator regardless whether the security interest was
created by the testator or by a previous owner and any general directive
in the will to pay debts.
(13) Power of appointment. A general devise of the real estate of the
testator, or of the real estate of the testator in any place, or in the
occupation of any person mentioned in his will, or otherwise described in
a general manner, shall be construed to include any real estate, or any
real estate to which such description shall extend, as the case may be,
which he shall have power to appoint in any manner he shall think
proper, and shall operate as an execution of such power. In like manner, a
bequest of the personal estate of the testator, or any bequest of
personal property described in a general manner, shall be construed to
include any personal estate, or any personal estate to which such
description shall extend, as the case may be, which he shall have power
to appoint in any manner he shall think proper, and shall operate as an
execution of such power. In like manner, a general pecuniary legacy, when
the assets of the individual estate of the testator are not sufficient
for its payment, shall, to the extent necessary to make possible the
payment of the legacy, be construed to include any estate which the
testator shall have power to appoint in any manner he shall think
proper, and shall to such extent operate as an execution of such power.
(14) Cemetery lot. If in a will no express disposition or other mention
is made of a cemetery lot owned by the testator at his decease and
wherein he or any member of his family is buried, the ownership of the
lot shall not pass from his lawful heirs by a residuary or other general
clause of the will but shall descend to his heirs as if he had died
intestate.
(15) Inheritance tax. The inheritance tax imposed by the Inheritance
and Estate Tax Act of 1961 upon the transfer of real or personal property
which passes by will absolutely and in fee, and which is not part of the
residuary estate, shall be paid out of the residuary estate and charged
in the same manner as a general administration expense. Such inheritance
tax imposed upon the transfer of any estate, income or interest for a
term of years, for life or for other limited period, shall be paid out of
the principal of the property by which the estate income or interest is
supported.
(16) Deleted by amendment. 1976, July 9, P.L. 551, No. 135, § 13,
imd. effective.
(16.1) Nonademption; incapacity. — If property of an adjudicated
incapacitated person specifically devised or bequeathed is sold or
exchanged or if a condemnation award or insurance proceeds are paid to
the estate of an incapacitated person as a result of condemnation, fire
or casualty, the specific legatee or devisee has the right to the net
sale price, the property received in exchange, the condemnation award or
the insurance proceeds. This paragraph does not apply if subsequent to
the sale, exchange, condemnation, or casualty, the testator has been
adjudicated not to be an incapacitated person and survives the
adjudication by one year.
(16.2) Nonademption; agent. — If an agent under a power of
attorney, during the time that his principal is an incapacitated person
within the meaning of section 5501 (relating to meaning of incapacitated
person), sells or exchanges property of the principal which is
specifically devised or bequeathed, the specific legatee or devisee has
the right to the net sale price or the property received in exchange. For
the purposes of this paragraph, a sale or exchange of property made by an
agent shall be deemed to have been made during the time that the
principal is an incapacitated person, unless shown to the contrary. This
paragraph does not apply if it is shown that for a period of at least one
year subsequent to the sale or exchange the principal was not an
incapacitated person within the meaning of section 5501.
(17) Change in securities. — If the testator intended a specific
bequest of securities owned by him at the time of the execution of his
will, rather than the equivalent value thereof, the legatee is entitled
only to:
(i) as much of those securities as formed a part of the testator's
estate at the time of his death;
(ii) any additional or other securities issued by the same entity
thereon and owned by the testator by reason of a stock dividend, stock
split or other action by the entity, excluding any acquired by exercise of
purchase options for more than a fractional share; and
(iii) securities of another entity received thereon or in exchange
therefor and owned by the testator as a result of a merger, consolidation
or reorganization of the entity or other similar change.
(18) Nonademption; balance. — A devisee or legatee of property
specifically devised or bequeathed has the right to any of that property
which the testator still owned at his death and;
(i) any balance of the purchase price or balance of property to be
received in exchange, together with any security interest, owing from a
purchaser to the testator at his death by reason of a sale or exchange of
the property by the testator;
(ii) any amount due for the condemnation of the property and unpaid at
the testator's death;
(iii) any proceeds unpaid at the testator's death on fire or casualty
insurance on the property; and
(iv) property owned by the testator at his death as a result of
foreclosure, or obtained in lieu of foreclosure, of the security for a
specifically bequeathed obligation.
(19) Employee benefits. — Benefits received by a trust under a
Federally qualified profit sharing, pension or stock bonus plan shall not
be available for the payment of obligations of the decedent or of his
estate.
(20) Corporate fiduciaries. — Provisions authorizing or
restricting investment in the securities or common trust funds of a
corporate fiduciary or the exercise of voting rights in its securities
shall also apply to the securities or common trust funds of any
corporation which is an affiliate of the corporate fiduciary within the
meaning of section 1504 of the Internal Revenue Code of 1986
(Public Law 99-514, 26 U.S.C. § 1504).