Certificate of Adoption

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Following successful adoption, the court shall issue a Certificate of Adoption pursuant to 23 Pa. C.S. Section 2907. This certificate is signed by the Judge and verifies the court has granted the adoption. The certificate can be used as evidence for any subsequent legal proceedings. The name(s) of the natural parents are not to be disclosed on the Certificate of Adoption. The Certificate of Adoption includes a raised seal. Additional certified copies of the Certificate can be requested from the court post-adoption. Nominal cost may be assessed for each additional certified copy.

In addition to the Certificate of Adoption, adoptive parents can also request a new birth certificate for the adoptee. The Department of Vital Records handles requests for new birth certificates. There is a form to complete as well as a fee for new birth certificate. You should be sure the Department of Vital Records has received confirmation of the adoption from the court prior to ordering a new birth certificate. The new birth certificate can reflect new name of adoptee, if applicable, and the names of the adoptive parent(s) would replace the names of the natural parent(s).

 

 

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Bond for Estate

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You may be required to post bond if the last will and testament does not waive the requirement, if you as the executor or administrator reside out-of-state, or if beneficiaries of the estate are minors. The purpose of posting bond is to ensure the administration of the estate is carried out properly. Specifically, to protect any beneficiaries or creditors from harm based on any negligence on the part of the executor or administrator. The required amount of the bond is based on the total estimated value of the estate and the executor or administrator usually only needs to post a percentage of the total bond.

Many insurance companies are able to assist in obtaining bond. The insurance company would then pay out the value of the estate if the administration is faulty based on the acts, or omissions, of the executor or administrator.The court may have a list of local agents that routinely do estate or probate bonds. A credit check may be required in applying for bond. The application often includes inquiries into the overall financial status of the executor or administrator and their personal assets. The executor or administrator can be released from bond upon proper completion of the administration of the estate. The court may need to formally grant release from bond which would require a petition for release to be filed. The principal posted for the bond can be returned if the executor or administrator had not done anything that resulted in loss to the estate.

 

 

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Self-Proving Will

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A last will and testament is a legal document that directs how your affairs should be handled after you pass away. The document allows you to specify who you will leave your assets to and in what amounts or shares. You can also designate an individual to be responsible for carrying out the terms of your last will and testament. This person called an executor, or if female, an executrix. Make sure your loved ones know where you will is stored to be able to access it at the appropriate time. Your original will is to be provided to your county’s Register of Wills or Surrogate Office to begin administration of the estate.

A self-proving will is one that has been witnessed and signed in the presence of a notary and includes an affidavit regarding the circumstances at the time of execution. Pennsylvania and New Jersey require at least two (2) witnesses. Prospective witnesses should be disinterested, meaning they are not beneficiaries of the will and have no individual interest. The affidavit acknowledges the presence of the witnesses at the time the will was signed, that the will was executed voluntarily and that to the best of their knowledge, the individual executing the will was of sound mind. Having a self-proved will can reduce the likelihood of will contests during estate administration and streamline the process in terms of not needing to further verify the will.  By April M. Townsend

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Right to Child Support

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Child support is paid between parents for the benefit of their children. It is up to the parents to timely file for support to get a support award established. They are also responsible for seeking any necessary modifications. Change in income of either party or a change in the custody schedule for the child can impact the amount of support owed. If you have requested support through the court, the court will assist in monitoring compliance with the order as well as petitions for contempt and enforcement for lack of compliance. If you have a private agreement for child support, you will need to keep track of payments and file for relief with the court if there is an issue.

While support is for the benefit of a child, the child cannot legally make any demands regarding support or seek to recoup payments. This issue has been previously addressed by the courts in Pennsylvania. In Chen v. Chen, 893 A.2d 87 (2006), parents had entered into a Propery Settlement Agreement with provisions for child support. Father had an obligation to notify of income changes that may warrant an increase in support but he never did. The parties’ daughter, once 18, filed to intervene in a pending petition for contempt and enforcement of the agreement which was initially filed by Mother. Daughter argued that as the intended beneficiary of the support, she had standing to pursue enforcement. The lower courts agreed and calculated unpaid support of over $59,000 due to Father’s failure to update the support award over the years despite increased income. The Supreme Court of Pennsylvania reversed the prior decisions finding that while children may be incidental beneficiaries of a support award, they do not have a direct interest in receiving cash payments. Instead, the intent is for support of the child generally through the parent with custody.

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Refusing an Inheritance

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Being named as a beneficiary or being an heir at law does not mean that you have to accept what is designated to go to you. It is possible to decline to receive your inheritance. A disclaimer is the form that would be executed to refuse receipt of what was left to you. The result of a disclaimer is that you are treated as if you predeceased the decedent. A will or the laws of intestacy would dictate how your share would be distributed among other beneficiaries.

There are a number of requirements for a valid disclaimer. The disclaimer must be in writing. It must adequately identify the decedent and the asset or amount being disclaimed. It is possible to do a full disclaimer or a partial disclaimer where you only refuse certain assets or a certain amount. The disclaimer has to be served on the person handling the estate, such as the executor or administrator, and/or filed with the court. You may elect to refuse an inheritance to avoid tax consequences or to attempt to carry out the intentions of the decedent if they hadn’t drafted a will or you knew of other intentions. A disclaimer is irrevocable so be sure of your decision prior to executing the document.

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Refunding Bond and Release

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New Jersey requires that a refunding bond and release be executed by a beneficiary to receive what was lef to them in the estate. This document serves two key functions. First, the beneficiary acknowledges their responsibility to return what was received if additional debts of the estate are uncovered and there are no other means to pay the debts. Second, the beneficiary releases the executor/administrator from their estate administration role. The form should not be executed before nine (9) months from date of death.

To complete the form you will need the beneficiary’s name and address as well as total value of cash and property received by the beneficiary from the estate. The executor or administrator of the estate must also be identified on the form. The form should be signed before a witness and a notary public.  A guardian appointed by the court can sign on behalf of a minor or incapacitated person. The trustee can sign for any assets passing to a trust. The executor or administrator should file the original signed, witnessed and notarized Refunding Bond and Release to the Surrogate’s Court with required filing fees.  Include a self-addressed, stamped envelope if you would like to receive a filed coy of the Refunding Bond and Release for your records.

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Notice of Estate Administration

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If you are the executor or administrator of an estate, one of the first things you will need to do is provide notice that the estate has been opened to all individuals who stand to inherit from the decedent. This list may include individuals listed in the will as well as individuals who would inherit if the decedent died without a will. Pennsylvania Orphans Court Rule 10.5 requires that a certification be filed with the court confirming the required notice was given.  The certification requires you to list the names and addresses for all persons receiving notice of the estate.

New Jersey requires similar notice. Rule 4:80-6 requires the executor or administrator of an estate to mail Notice of Probate to all beneficiaries and the next-of-kin of the decedent within 60 days of the probate of the will. Proof of mailing must then be filed with the Surrogates office. If you do not have an address, notice of probate can be published. Sanctions can be imposed for failure to timely provide the required notice. Consult with an experienced estate attorney to make sure you complete the necessary notice requirements when serving as executor or administrator.

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PA Inheritance Tax Return

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Pennsylvania does apply a tax on assets passed through probate or intestacy. The amount of tax depends on the net value of the estate as well as the relationship of the beneficiaries to the decedent. The first step is to add up all the assets of the estate. The next step is to subtract permissible deductions including costs of administration of the estate and debts of the decedent. There is no tax imposed for assets passing to a surviving spouse or to a child under 21 years old. There is a 4.5% tax for assets passing to children over 21, parents or grandparents. There is a 12% tax for assets passing to siblings. There is a 15% tax for all other transfers including to aunts, uncles, nieces, nephews, cousins or persons of no relation. There are some institutions exempt from the inheritance tax including certain government entities and charitable organizations.

Inheritance taxes are to be paid within nine months from the date of death of the decedent to avoid any penalty. A 5% discount on the tax is extended for returns filed within three months from date of death. Penalties and interest can begin to accrue for taxes that are not paid within nine (9) months of the decedent’s death. It is possible to request an extension in certain circumstances. Assets passing outside of the will or the rules of intestacy are generally not subject to the inheritance tax. Examples of assets that pass outside of the will are life insurance policies, retirement plans and other assets with a designated beneficiary. Additionally, assets jointly owned with rights of survivorship will automatically pass to the surviving owner as a matter of law.

 

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Real Estate Ownership

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A deed is the document that reflects ownership in real property. A deed should be recorded with the appropriate county office that maintains records for all real property. You may need to change your deed for a variety of reasons. Any changes to a deed require that a new deed is created and recorded to replace the prior deed.  If a home was purchased prior to marriage in only one name, you may want to add your spouse’s name to the deed. If property was owned jointly during the marriage and only one party is retaining the property in a divorce, you will need a new deed recorded. Please note a deed is separate from a mortgage and additional steps may be needed to address financial liability for a property pursuant to a mortgage.

You may consider adding a child to your deed as part of your estate plan. You may also find yourself in a position where a new deed is needed during the probate of an estate to pass the property from the decedent to designated heir. Each county assesses a fee for recording a new deed. There may also be a realty transfer tax depending on the relationship between the grantor(s) and grantee(s) and the circumstances warranting the transfer. Transfers between spouses are exempt as are transfers to children. Transfers pursuant to a will are also exempt from a realty transfer tax however are subject to inheritance tax depending on the relationship of the decedent to the beneficiary or heir.

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Custody Exchanges during Emergency

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Life is unpredictable and from time to time circumstances may arise that disrupt your normal routine. If you share a child with a former partner, part of your normal routine likely involves a custody schedule. The question then becomes what happens to my custody schedule in an emergency situation. Presently, our country is battling the spread of a new virus and with that, new directives for individuals to remain home as much as possible to lessen the rate of infection. What should you do about your custody order?

We are stressing the following steps to guide parents during this time:

Be prepared to discuss and model good behavior for your children in both homes including hand washing, wiping down surfaces, and social distancing.

Be compliant with the Order to the extent possible; if exact compliance is not reasonable or more stringent shelter at home directives are put in place, be creative in finding other ways to sustain the relationship (i.e. facetime, skype, etc.)

Be transparent and provide honest information with respect to any suspected or confirmed exposure to the virus and try to agree on what steps you will take to protect your children from exposure.

These are a starting point. We certainly encourage productive communication beyond these listed issues. Remember to act within reason for circumstances beyond what has been described, show empathy and keep in mind how you would feel if the shoe was on the other foot.

Stay well!

 

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