Alternatives to Estate Administration

In certain circumstances where the decedent did not have a will, surviving relatives may be able to handle their affairs without going through the probate process. If the decedent is survived by a spouse and the value of their estate is less than $50,000, the spouse can file an affidavit with the court. In addition to information regarding the assets of the estate, the spouse must also have a death certificate. A Child Support Verification is required in every case. This form puts parties on notice that any outstanding arrears are to be satisfied prior to disbursement of funds to any beneficiary that owes child support.  The affidavit only permits the spouse to handle the assets listed. If more assets are subsequently discovered and pushes the value of the estate over $50,000, formal probate will be required.

If the decedent was not married, their next of kin can submit an affidavit where the value of the estate of the decedent does not exceed $20,000.  Consents must be obtained from other next of kin of equal degree, if applicable, to enable the affidavit to be submitted. All surviving heirs should be supplied in the affidavit information sheet including degree of kinship, addresses and ages. Any deceased next-of-kin and their issue must also be named. Otherwise, the same rules apply as discussed above with respect to child support verification and what happens if additional assets are discovered over $20,000 limit.  By April M. Townsend

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Audit and Adjudication

An audit is scheduled when beneficiaries do not agree on how an estate should be distributed or there are questions regarding the estate. An accounting is filed with the court to obtain an audit hearing. The accounting should detail all the assets and debts of the estate to the penny. This is to ensure the executor or administrator properly handled the estate. A copy of the will, if applicable, should be attached along with proof of publication of notice of letters granted. Also, confirmation that notice of the audit was sent to all interested parties prior to the audit date is required.

At the time of the audit, if there are still objections or concerns, the matter will be scheduled for further proceedings to resolve the outstanding issues. If there are small issues or discrepancies, they can potentially be addressed that day so the estate can be resolved. If there are no objections or questions at the time of the audit, the executor or administrator should present a petition for adjudication to the court. The petition will include the proposed distribution of the estate and whether any reserve is being held for future expenses.  By April M. Townsend

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Attendance at Adoption Hearing

Several individuals are required to attend a scheduled adoption hearing. Pursuant to 23 Pa. C.S. Section 2723, the adopting parents and adoptee must appear at adoption hearing and testify under oath where required. In addition to these individuals, the court may direct that all persons whose consents were required, or any agency or intermediary involved, appear as well if their testimony would be necessary or helpful to the court. Consents are required of spouse of adopting parent (if not joined in petition), parents of adoptee under the age of 18 years (if their rights have not previously been terminated), and guardian of incapacitated or underage adoptee.

 

Testimony at an adoption hearing is for the purpose of verifying statements in the adoption petition and providing information to the court regarding the desirability of the proposed adoption. The court may inquire regarding the relationship that has been established between the prospective parents and the adoptee. The court may also question the prospective parents as to their understanding of the permanency of adoption and legal benefits conferred by establishing parent-child relationship. If satisfied that needs and welfare of adoptee will be served by the adoption, the court shall enter a decree grating the adoption.

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Alternate Service in Adoption

It is always necessary to give all interested parties proper notice of pending adoption proceedings. A copy of the adoption petition should be served on all interested parties, e.g. persons with parental rights to the minor child(ren) involved. If you do not have a good address for an interested party, there are other alternatives to provide notice. First, you will need to demonstrate a need for an alternate method of service and petition the court to get permission. The usual method of alternate service in a situation where the current whereabouts of a party are unknown is publication in the newspaper where the party was last known to reside.

The court’s order permitting publication would dictate for how many weeks the notice must be published in the newspaper. You should be careful to include all necessary information in the publication so that the court can accept the publication as acceptable method of alternate service. The newspaper subsequently provides an affidavit confirming the publication. This affidavit should be submitted to the court as proof that the required publication was completed. Using publication as an alternate method of service does increase the costs of the adoption matter as it can cost several hundred dollars to publish in the newspaper.  By April M. Townsend

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Alimony

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Alimony is support paid to an ex-spouse following divorce. The amount of alimony is usually based on the incomes of the parties. It is not uncommon for the amount of alimony to be considered in the context of the equitable distribution of marital assets, if any. Unless otherwise stated by agreement, the amount of alimony may be modified due the changed circumstances of either party. These changes must be substantial and of a continuing nature. Parties reaching their own agreement for alimony may contract for non-modifiable alimony.

The duration of alimony is based on the length of the marriage. For example, a party may expect approximately 1 year of alimony for every 3 years married. For marriages of over 25 years, an indefinite term of alimony may be appropriate. If the parties include alimony as a part of their own settlement agreement, they are free to set the amount and length of the alimony as they so agree. Previously, alimony was a tax deduction for the party paying the support while the party receiving the support had to claim it as income. Pursuant to the Tax Cuts and Jobs Act, alimony is no longer a taxable event. This change in the tax treatment of alimony became effective January 1, 2019. If your Order for alimony was entered prior to that date, the prior rules will continue to apply.  By April M. Townsend

 

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Advertising for Estate

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Probate is the process of handling an individual’s estate after they pass away. If the individual had a will, it should name an executor. An executor is the person designated to be responsible for the administration of a person’s estate. If the individual did not have a will, their next of kin can apply to be appointed as administrator of that individual’s estate. Part of the probate process is advertisement of the estate. The purpose of advertisement is to put any interested parties on notice of the death of the decedent.

Two types of advertisement are needed. First, notice should be published in the local law reporter for the county where probate is initiated. Second, notice should be published in a newspaper of general circulation within the county. Proper advertisement protects the executor or administrator in terms of their fiduciary responsibility to properly carry out the estate. After one year from date of advertisement, creditors can no longer make a claim against the estate and the executor or administrator can feel confident in making any distributions of the estate after that point.  By April M. Townsend

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Adult Adoption

In Pennsylvania any individual may be adopted regardless of their age or residence. This means even an adult can be adopted. An adult adoptee must consent to their adoption by prospective parents. They do not need to have the rights of their natural parents terminated first. Additionally, the prospective parents do not have to include background checks along with their petition. If looking to change your name as an adult pursuant to an adoption, you must also follow the steps for a civil name change.

First, adult adoptees will need to submit a copy of your fingerprints with the adoption petition. Fingerprints can be obtained from your local police department. Adult adoptees also need to supply record checks from the Prothonotary, Clerk of Court, and Recorder of Deeds for each county of residence for five (5) years prior to your filing. Finally, notice of the adoption hearing date must be published in a newspaper of general circulation within the county as well as the local Law Reporter regarding the proposed name change. Proof of the record checks and publication should be offered as evidence at the adoption hearing. Name changes are not permitted for adults in the event of certain criminal convictions.  By April M. Townsend

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Can I Adopt with a Criminal Background?

The short answer is possibly. Background checks are required for all prospective parents in an adoption matter. In Pennsylvania, there are three background checks that are required: Pennsylvania Child Abuse History Clearance through the Department of Human Services, Pennsylvania Criminal Record Checks through the State Police, Federal Bureau of Investigations (FBI) Criminal Background Check through the Department of Welfare. New Jersey requires state, federal and local criminal history checks. These background checks must also be completed for all other adult household members where the adoptee will reside.

If a prospective parent has lived outside of the current state in the five (5) years immediately preceding the adoption petition, similar background checks must be acquired from each state where he or she previously resided. Background checks must be less than one year old at the time of the adoption hearing. The mere existence of a record does not automatically disqualify you from successfully adopting a child. It is up to the court to look at the nature of the record and whether it poses risk to a child. If there is no substantial risk, the adoption may still proceed. Additionally, if an adult is being adopted, prior criminal background is not an issue since the adult adoptee is consenting to the adoption.   By April M. Townsend

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Adopting Multiple Children

If you are adopting a minor child, a name change can be accomplished as part of the adoption. Specifically, the final adoption decree can include the desired new name for the child. The first, middle and last name is subject to change where desired. The certified adoption decree along with vital records request form can be used to change the child’s name on their birth certificate as well as social security records. Vital records does assess a cost for a new birth certificate.

You may also accomplish a name change through adoption where the adoptee is an adult. In this case, you will also need to meet the requirements required for a civil name change. The adoptee must be fingerprinted and submit the fingerprint card to the court with the adoption petition. The adoptee will also need to supply record checks from the Prothonotary, Clerk of Court, and Recorder of Deeds for each county of residence for five (5) years prior to your filing at the time of the adoption hearing. Finally, notice of the adoption hearing date must be published in a newspaper of general circulation within the county as well as the local Law Reporter regarding the proposed name change. Proof publication should be provided to the court at the time of the adoption hearing.  By April Townsend

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Adoptee’s Name

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If you are adopting a minor child, a name change can be accomplished as part of the adoption. Specifically, the final adoption decree can include the desired new name for the child. The first, middle and last name is subject to change where desired. The certified adoption decree along with vital records request form can be used to change the child’s name on their birth certificate as well as social security records. Vital records does assess a cost for a new birth certificate.

You may also accomplish a name change through adoption where the adoptee is an adult. In this case, you will also need to meet the requirements required for a civil name change. The adoptee must be fingerprinted and submit the fingerprint card to the court with the adoption petition. The adoptee will also need to supply record checks from the Prothonotary, Clerk of Court, and Recorder of Deeds for each county of residence for five (5) years prior to your filing at the time of the adoption hearing. Finally, notice of the adoption hearing date must be published in a newspaper of general circulation within the county as well as the local Law Reporter regarding the proposed name change. Proof publication should be provided to the court at the time of the adoption hearing. By April Townsend

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