SUPREME COURT OF PENNSYLVANIA
              ORPHANS’ COURT PROCEDURAL RULES COMMITTEE

                                 ADOPTION REPORT

                           Amendment of Pa.R.O.C.P. 5.50

       On May 2, 2024, the Supreme Court of Pennsylvania amended Pennsylvania
Orphans’ Court Rule of Procedure 5.50 governing small estate petitions. The Orphans’
Court Procedural Rules Committee has prepared this Adoption Report describing the
rulemaking process. An Adoption Report should not be confused with Comments to the
rules. See Pa.R.J.A. 103, cmt. The statements contained herein are those of the
Committee, not the Court.

Background

       Effective October 1, 2020, Pa.R.O.C.P. 5.50 established procedures for the filing
of small estate petitions.1 Subsequently, the Committee received correspondence
expressing two concerns about certain provisions in the rule. The first issue related to
the requirement that the petitioner attach the Department of Revenue Notice of
Appraisement and Assessment of Tax (“Notice”) to the petition as an exhibit.2
Commenters reported issuing delays of the Notice by the Department of Revenue.3 It
was conveyed that, in some cases, the delay could outweigh the benefits of filing a small
estate petition. Thus, the Committee reconsidered the need to require the Notice as an
exhibit and contemplated other means that would demonstrate payment or waiver of tax.


1     A small estate is one with a gross value not exceeding $50,000 “exclusive of real
estate and property payable under 20 Pa.C.S. § 3101 (relating to payments to family and
funeral directors) but including property claimed as the family exemption.” 20 Pa.C.S. §
3102.

2       The Department of Revenue issues the Notice after an inheritance tax return is
filed. The Notice sets forth the Department’s valuation of the estate’s assets, allowable
deductions, and tax due. See Pennsylvania Department of Revenue, Inheritance Tax
General       Information,       Form        REV-720(SU)02-23,          available      at
https://www.revenue.pa.gov/FormsandPublications/FormsforIndividuals/InheritanceTax/
Documents/rev-720.pdf (last visited April 26, 2024).

3       The Department of Revenue advises that it can take three to six months to
complete processing from the date an inheritance tax return is filed with the Register of
Wills, depending on the complexity of the return. See supra note 2.
        Another issue related to service on interested persons in compliance with Chapter
III, concerning petition practice and pleadings. The service rule provided that “[t]he
petitioner shall serve written notice on interested parties in compliance with Chapter III.”
See Pa.R.O.C.P. 5.50(d). Commenters expressed concern that failure to designate the
precise service procedure, i.e., citation or notice, forced practitioners to elect the issuance
of a preliminary decree and citation for all parties. While the Committee initially thought
it preferable to leave the service determination to practitioners, it was sensitive to the cost
burden reported by the commenters.

         Finally, while reviewing the two issues raised by correspondents, the Committee
identified a need to refine provisions relating to attachment of an original or a photocopy
of the decedent’s will, if the original will cannot be produced, as an exhibit to the petition.
See Pa.R.O.C.P. 5.50(c)(2). The Committee observed that attaching a photocopy of a
will to the petition could lead to an incorrect distribution if the decedent revoked the will.
In the absence of the original will, the validity of the photocopy and the potential for
revocation of an original will must be contemplated and determined. Thus, the Committee
considered whether a petitioner not in possession of the original will should petition the
Register of Wills to obtain a decree validating the photocopy.

       Concurrently, the Committee reconsidered whether an original will should be filed
with the petition. See Pa.R.O.C.P. 5.50(c)(2). The Register of Wills is the office for the
lodging and probating of wills and maintains filing and cataloging systems for such
responsibilities. In contrast, an original will filed as an exhibit to a petition may be difficult
to locate in the future. Therefore, the Committee proposed that the original will be lodged
or probated with the Register of Wills before the filing of the small estate petition. Rather
than attaching the original will to the small estate petition, the petitioner would attach a
photocopy demonstrating proof of lodging the will with the Register or a decree of the
Register accepting a photocopy of the original.

       The Committee approached these two new concepts with the goal of ensuring the
intent of the will is carried out by adding procedures to ensure that the distribution is
correct and the original will has not been revoked. The Committee published proposed
amendments to Pa.R.O.C.P. 5.50 at 52 Pa.B. 3057 (May 28, 2022). All public comments
received were reviewed and discussed by the Committee.

Rule Changes

         Notice of Appraisement and Assessment of Tax. The original intent of requiring
the Notice as an exhibit to the petition was to ensure that taxes were satisfied prior to
distribution. However, the Committee subsequently concluded there may be flaws with
this approach, e.g., there may be circumstances when the petitioner has not yet made a
tax filing or cannot discern the exact value of decedent’s assets if records are unavailable.
Consideration was also given to the limited exposure of an underpayment, given the

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parameters for small estate eligibility and the ability to petition for revocation of the decree
of distribution in the event of an improper distribution. 20 Pa.C.S. § 3102.

         Subdivision (b)(5) was amended to require the reason a tax return has not been
filed, if any. Subdivision (c)(3) was amended to replace the requirement to attach the
Notice as an exhibit to the petition with the “documentation supporting the statement
required by subdivision (b)(5), if any.”

        Service. The Committee also examined the service provision of Pa.R.O.C.P.
5.50(d), which required the petitioner to “serve written notice on interested parties in
compliance with Chapter III.” Pa.R.O.C.P. 3.5 provides two service methods – citation
and notice. Pa.R.O.C.P. 3.5(a), pertaining to citation practice, is used to obtain personal
jurisdiction when it has not previously been obtained or conferred by statute. When an
orphans’ court issues a citation, it is served on an interested party together with the
petition in the same manner as original process in the Pennsylvania Rules of Civil
Procedure. In contrast, when personal jurisdiction is not required, has been previously
obtained, or conferred by statute, a petitioner proceeds by notice practice, i.e., attaching
a notice to plead to the petition and providing the documents to interested parties.
Pa.R.O.C.P. 3.5(b).

        The Committee extensively discussed service of the small estate petition prior to
making Orphans’ Recommendation 4 of 2019. While some commenters at the time
suggested designating Pa.R.O.C.P. 3.5(b), permitting service by notice, as the sole
method of service, the Committee at the time found it preferable to let practitioners decide
what method of service was needed, consistent with practice in the other specific petitions
set forth in Chapter V.

        However, correspondence received after the adoption of Pa.R.O.C.P. 5.50 relayed
that requiring service by citation creates a financial burden on an estate of limited means.
The Committee discussed designating Pa.R.O.C.P. 3.5(b), notice practice, as the method
of service for small estate petitions. The statute governing small estates gives discretion
in the provision of notice regarding the petition filing and proposed distribution. “[U]pon
petition of any party in interest … and with such notice as the court shall direct…”. See
20 Pa.C.S. § 3102. The Committee further contemplated that the in rem nature of small
estate proceedings was more compatible with notice practice. Therefore, Pa.R.O.C.P.
5.50(d) was amended to direct service in compliance with Pa.R.O.C.P. 3.5(b).

        Photocopies of Will. In addition to the Notice and service issues, the Committee
reviewed the advisability of accepting a photocopy of the will as an exhibit to the petition.
Attaching a photocopy of the will to the petition could result in an incorrect distribution if
the decedent had revoked the will, unknown to the petitioner. The Committee considered
whether a petitioner not in possession of the original will should petition the Register of
Wills to obtain a decree as to the validity of the photocopied will.

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        Having the Register of Wills decree accept a photocopy of a will establishes proof
of its validity and will enable the court to order distribution in accordance with the will. A
petition to accept the photocopy does not necessarily initiate probate, although a decree
could be used to do so or to file a small estate petition. The Committee acknowledges
that adding this practice to Pa.R.O.C.P. 5.50 could disincentivize petitioners who do not
have an original will from electing a small estate petition over probate when a photocopy
is of questionable validity. However, it seemed a necessary change to ensure the integrity
and validity of the document in question.

       Lodging and Probate. As part of the discussion relating to original and
photocopied wills, the Committee considered whether an original will should be attached
to a small estate petition as an exhibit. Specifically, the Committee was concerned that
an original will filed as an exhibit to a petition may be difficult to locate in the future and
not easily discoverable. Moreover, the Register of Wills is the office for the lodging and
probating of wills and maintains filing and cataloging systems for such responsibilities.
The Committee also considered that a petitioner could probate the will but subsequently
elect to file a small estate petition once the assets of the estate are fully known. This
change makes clearer that filing a small estate petitioner is still an option even if probate
has been initiated.

        The Committee also discussed electronic filing in the context of small estate
petition filings. When electronic filing is authorized by local rule, a party may require the
filing party to file an original of a legal paper or exhibit with the clerk. Pa.R.O.C.P.
4.7(b)(2). However, absent such a demand, the filing party is required to “maintain the
original of all documents, …, together with any exhibits filed, for [five] years after the
disposition of the case.” See Pa.R.O.C.P. 4.7(c)(3). Because the original will is not
necessarily filed in a small estate case, ensuring the location of the will becomes more
important. The proposal was intended to ensure that all parties know the will exists and
where it is located.

        Therefore, the Committee proposed that a petitioner lodge or probate the original
will with the Register of Wills before filing of the small estate petition. Rather than attach
the original will as an exhibit, the petitioner would attach a photocopy demonstrating proof
of lodging with the Register of Wills or the decree of the Register accepting a photocopy
of the original.

       The Committee believed there is a known distinction between lodging and
probating a will with the Register. A person can be compelled to deposit a will with the
Register of Wills. See 20 Pa.C.S. § 3137. The practice of lodging of a will with the
Register of Wills is referenced in an unpublished Superior Court memorandum involving
a premature estate dispute between siblings prior to the death of their mother, an
incapacitated person. “[T]he guardian of the estate could lodge the will with the Register

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of Wills [to prevent sister from wrongfully gaining access to estate assets upon mother’s
death].” See Matter of Bush, 

, *2 (Pa. Super. filed March 19, 2019)
(citing Matter of Bush, Court of Common Pleas of Chester County, Orphans’ Court, No.
1509-1720). The Register of Wills of Philadelphia County Manual includes a chapter on
lodging and compelling production of a will. It provides “[a] person holding the original
last Will of a decedent may lodge (i.e., deposit) the Will with the Register for safekeeping
pending further proceedings.” See Register of Wills of Philadelphia County Manual,
Chapter 9, 1977465.pdf (last visited April 26, 2024). Finally, a treatise instructs, without
further citation, that “a will may be deposited with the Register for safe keeping without
the will being probated.” Cleaver Daniel C., West’s Pennsylvania Practice, Pennsylvania
Probate and Estate Administration, § 1.3 (5th ed. 2017). The Committee does not suggest
a probate requirement with this provision, but merely a decree establishing the validity of
a photocopy. The Committee acknowledges that this requirement will add a step to the
small estate procedure, but balanced the inconvenience of an additional step with
ensuring the validity of the document and, therefore, the accurate distribution of the
estate.

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       The amendments become effective July 1, 2024.




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