Estate Administration

Throughout the course of our discussion we will visit several different areas of the statutory framework defining the probate process. However, our focus will be primarily center around the time element of the statutory scheme of estate administration. Before we embark on the present discussion it would be prudent to quickly review the probate process as a whole. Normally the process is initiated by presenting the decedent's Will at the Register of Wills office in the county where the decedent was domiciled and filing a petition for the grant of Letters Testamentary. PEF Sec. 3151. After being granted Letters of Testamentary the executor or executrix can begin the process of collecting the decedent's assets and verifying the decedent's debts. Some of the personal representatives non-statutory duties that are included in this process that should be done as soon as possible are establishing the estate account, applying for the EIN number for the estate, contacting the insurance companies to verify the beneficiaries of any policy existing at the time of the decedent's death and requesting a Form 712, contacting banks and other financial institutions for date of death balances for accounts, inventorying safety deposit boxes, obtaining appraisals for valuable items of personal property and collecting deeds and other important documents that verify the decedent's interest in real or personal property. If the decedent was receiving Medicaid benefits to pay for things such as nursing home care the personal representative should immediately notify the Pennsylvania Department of Welfare.

Within the first three months after opening the estate the personal representative should notify the beneficiaries under the will, the intestate heirs and the other necessary parties under the rules that an estate has been opened. O.C. Rule 5.6. After notifying the beneficiaries the personal representative should file a certification of the notice with the Register of Wills. The personal representative should also advertise the estate in publications that comply with the rules outlined in the probate code. PEF Sec. 3162. The personal representative should also consider a prepayment of Pennsylvania Inheritance Tax to obtain the 5% discount granted by the state for early payment. The attorney should advise the personal representative whether or not to waive any commissions that he or she may be entitled to for their services. The attorney should determine the availability of the family exemption for any of the members of the decedents household. The surviving spouse if there is one should be counseled as to her right to elect an elective share. It may be necessary to advised the surviving spouse to obtain separate counsel should her decision to claim an elective share effect other beneficiaries adversely.

Within the first 6 months after the decedent's death the attorney should have valued the estate assets as of the decedent's date of death and discussed the possibility of disclaiming worthless assets with the executor and other beneficiaries of the estate. Also, the surviving spouse should have given notice to personal representative of her decision to claim her elective share or should have filed for an extension of time to do so with the courts. The value of qualified assets values should be reevaluated at their present value so that a decision can be made whether to value the assets as of the date of death or choose the value at six months as the alternate valuation date on the Federal Estate Tax return.

Within the first nine months the PA Inheritance Taxes should be filed and paid or the personal representative must have filed for an extension. Other taxes which are due or for-which a extension should have been obtained are the PA estate taxes and the federal estate taxes.

Within 12 months the fiduciary income tax return must be paid. Hopefully the personal representative has received copy of the estate tax closing letter. After the tax issues have been put to rest in an estate that can be settled by an informal settlement agreement the contract should be signed and filed with the Register of Wills.

If the estate cannot be settled informally the personal representative must prepare a formal account. A formal account cannot be filed any sooner than 4 months after the first completed advertising of the estate. A statement of distribution and the schedule of distribution should be completed and filed with the court. Timely notice of the call to audit needs to be sent to the parties that have an interest in the estate's final distribution.

Some miscellaneous dates are important in estate administration practice. On April 15th in the year following the decedent's death the personal income tax (state and federal if necessary) must be filed. Two years after the date of death if the estate is not settled a status report must be filed with the Register of Wills.

Life Insurance

A. Locate the policy or policies

1. Inventory safe deposit box

2. Locate and call life insurance agents

3. Contact the decedent’s employer regarding group life insurance or split dollar insurance

4. Identify any union affiliations

5. Identify any lodge or fraternal organizations

6. Determine if there are any Social Security benefits

7. Determine if there are any Veterans’ benefits

8. Review bank statements, credit card statements and any outstanding loan documents

B. Review all life insurance policies to determine:

1. The interests of the estate and;

2. Any additional benefits that may be payable due to accidental death

C. Request application from insurance company. Will need a death certificate and the original policy. Regardless of who files for benefits, the personal representative should always request an IRS Form 712 from each insurance company for the federal estate tax return.

Recording claims and contests:

Along with the duty to pay all the debts of the decedent and the expenses of the estate of the personal representative has the duty to identify the claims made against the estate. Caution must be used when making payments where the estate has the possibility of being insolvent. The Pennsylvania Statues establish a priority for the payment of debts where the estate is insolvent. PEF Sec. 3392. When paying debts all claims in one category are paid before moving to the next category. However, the priority of mortgages and security interests are not effected by this section of the code.

Notice of a claim must be given to the personal representative in writing. Filing a notice tolls the statue of limitation, entitles the claimant to notice of the final audit and protects the claimant against distributions made outside the audit. Written notice is required even if the personal representative has actual knowledge of the claim. In re Dixon 's Estate, 426 Pa. 561, 233 A. 2d 242 ( Pa. 1967). The death of a person does not stop the statue of limitations for more than one year respect of any claim made against the estate by that person. PEF Sec. 3376. Any statue of limitations that would bar a claim against the decedent within one year following the date of death of the decedent is extended for one year following the decedent's death. PEF Sec. 3383. Should a claimant die before the claim is settled the personal representative of the claimant's estate should be substituted as a party an interest in the action. PEF Sec. 3371 and 42 Pa. C.S A. Sec.8302.

The importance of early advertising in the estate administration cannot be overstated. The personal representative may distribute estate assets to a beneficiary without liability towards any claimant who has not given notice of their claim within one year from the first completed advertising of the estate. PEF Sec. 3532(a). The claimant loses his claim against personal property distributed by the personal representative unless the claim is known to the personal representative within a year after the first completed advertising but prior to the distribution of the asset. PEF Sec. 3532(b). The rule applies to real property except that the claimant must file written notice with the Orphan's Court to protect the claim. Any filed claim expires at the end of five years unless prior to that time the personal representative files an account or the claimant files a petition to complete the accounting. The claimant should notify the personal representative as soon as possible to protect the right to receive notice of the audit and to protect the right to proceed against the estate property and/or the personal representative who makes an at risk distribution.

The Pennsylvania probate code protects the surviving spouse from disinheritance by allowing he or she to claim an elective share of the decedent spouse's estate. PEF Sec. 2203. The surviving spouse's right to an elective share is not absolute and among the ways it can be forfeited is a failure to timely exercise the election. Surviving spouse must file an election in writing with the Orphan's Court Division in the county where the decedent was domiciled. Notice must also be given to the personal representative of decedent's estate. The election must be done within six months of the decedent's death or the date of probate whichever is later. PEF Sec. 2210. The surviving spouse can apply within the six month time limit to have the time for election extended. Failure to timely file or apply for an extension will be construed as a waiver.

Timing is also crucial in contesting a will. The appropriate party can challenge a will for lack of testamentary capacity, undue influence, improper execution or fraud. The claim may take the form of a caveat before the Register of Wills, an appeal from probate or a declaratory judgment action for construction and/or reparation of a will. The filing of a caveat literally becomes a race to the Register of Wills between the proponent of a will and the contestant of a will. Within ten days after filing of a petition for probate or whichever is later the contestant must file a bond with the Register of Wills or the caveat is show of cause.

The appeal from probate must be filed within one year after the decree of probate has been set forth. PEF Sec. 908. However, any party in interest may appeal to have the time limit reduced to three months.

Filing the Pennsylvania Inheritance Tax Return

The Pennsylvania Tax return is technically due upon the death of the decedent. 72 Pa C S.A. Sec. 9142. However, it does not become delinquent for nine months so for all practical purposes the tax is to be filed and paid with nine months of the date of death of the decedent. A 5% discount is available for the tax paid within three months of the decedent's date of death. The personal representative must compare the value of the discount versus the possible return on any funds invested to see if it is prudent to obtain the discount. Within the nine months allotted to file the Pennsylvania Estate Tax Return the personal representative can apply for an extension of time to file and pay the tax due. It is essential for the personal representative to file a return as early as possible so that any disputed issues can be settled in time to prevent the payment of any interest penalty for late payment of taxes.

After the filing of the taxes and the review by the state the filing party will receive a Notice of Appraisement, Allowance or Disallowance of Deductions and Assessment of Tax. Any party in interest may protest the decision of the Department of Revenue. The protest must be filed in writing with the Department of Revenue and the filing party must also send a copy to the Office of the Attorney General. The filing party must notify the Register of Wills that they wish to have the correctness of the tax determined at the time of audit. Alternatively, the party filing the protest can make a direct appeal to the court to have the correctness determined at the audit or at a time affixed by the court. 72 P.S. Sec. 9186. The party who pursues a-protest and is not satisfied with the decision may appeal the decision to the court within sixty days. Where the department delays a decision more than thirty days after a protest is filed upon petition of any party the court can direct the department to transmit the entire record to the court and this will suspend the determination until the time of audit. Alternatively, the party filing the protest can make a direct appeal to the court to have the correctness determined at the audit or at a time affixed by the court. 72 P.S. Sec. 9186. The party who pursues a protest and is not satisfied with the decision may appeal the decision to the court within sixty days. Where the department delays a decision more than thirty days after a protest is filed upon petition of any party the court can direct the department to transmit the entire record to the court and this will suspend the determination until the time of audit.

Establishing the Value of Assets

Given the deadlines set by the federal and state tax codes it is important for the personal representative to establish the value of assets early on. There are also some non-tax requirements of estate administration that make early valuation of assets essential. The estate inventory must be filed with the Register of Wills on the date the account is filed or on the due date for the inheritance tax return. The PA code requires that all estate assets be reported at their fair market value at the decedent's date of death. PEF Sec, 3302. This value is also used on the final account as the fiduciary acquisition value. Later when the distribution schedule for the final account is filed the asset's current value as of that date is used. The date of death values are also generally used for tax reporting purposes. Valuable personal property may require the personal representative to obtain a written appraisal. Real property generally is valued at the selling price or the fair market value set by the county government. If the question arises as to the value of the property a valuation by a licensed real estate appraiser is necessary.

Bank accounts and other financial accounts are generally valued as of the date of death. This value can be obtained from the financial institutions where the accounts are held. If the accounts are interest bearing any accrued and unpaid interest as of the date of death must also be reported. Stocks and bonds are generally valued as of the market price as of the date of death. Valuation of closely held business interest or partnership interest using general estimation rules are dangerous. Expert evaluation is the safest way to proceed especially in light of the penalties established for under valuation of these interests. The federal regulations for establishing the value for life estate and remainder interests apply not only at the federal level but also for PA inheritance tax reporting purposes. 72 Pa. G.S.A. Sec. 9121(b). In PA where an annuity or life estate terminates within nine months of the decedent's date of death the determination under the federal regulation gives way to the actual facts. 72 Pa. G.S.A. Sec. 9121(d).

Retirement plan benefits are generally subject to federal estate tax and PA inheritance tax. PA imposes a tax upon payments under pensions, stock bonuses, retirement plans, profit sharing and IRA's where the decedent had the right to possess, enjoy, assign or anticipate the payments made. The federal Tax Reform Bill of 1983 repealed the estate tax exclusion except for certain decedent's dying after 1984. The IRC provision placing an additional 15% estate tax on excess accumulations was repealed by the Tax Reform Act of 1997.

Personal Representative Commission

The personal representative may also have to make a decision whether or not to waive any commissions for his services. The personal representative’s commission is taxable as income to the personal representative and should generally be waived where the personal representative is also a beneficiary of the estate and the income tax paid for the individual is higher than that of the estate tax rate. The waiver should be made within the first six months of the decedent’s death and should be delivered in writing to one or more of the beneficiaries of the estate.

Income Taxes and Estates

The personal representative has the duty to file the decedent's final income tax return and close out any outstanding years that may be subject to an audit The decedent's final return is done on a calendar year basis and is due the 15th of April in the year following the year of the decedent's death unless an extension has been granted. The personal representative may also have to file a fiduciary income tax return at the state level and at the federal level should certain income criteria be met. Income for the estate is reported under a separate tax ID number. After the date of the decedent's death the state picks up all income earned on any assets. Therefore, it is important when contacting financial institutions to request a break out of any interest earned from January 1st to the date of death in the year of the decedent's death and from the date of death to the close of the decedent's account so that the income interest can be allocated in a way that decreases the estate tax liability. When the personal representative is distributing tangible personal property he must consider the different income treatment afforded the specific bequests and a residual gift of personal property taken in kind.

Electing a fiscal year and the timing of the payment of expenses and bequests are important decisions for the personal representative. These decisions need to be made in a way that provides the greatest tax benefit for the estate. A personal representative can select a fiscal year ending in any month after the decedent's death as long as a year does not exceed 12 months. This means the initial tax year begins in the month of the date the decedent dies, however, this also means that the first and last year can be less than 12 months in duration. Under federal law if the taxable income of the estate exceeds $600 the personal representative must file a return on the 15th day of the 4th month following the end of the tax year. PA recognizes filing a return on the fiscal year basis, unfortunately, it taxes income from the first dollar made. Two decisions are crucial for the personal representatives. Where the state is subject to federal tax one must decide whether or not to take administrative expenses, attorney fees and other allowable deductions of federal estate tax return or the fiduciary income tax return. Second, where no federal estate tax is filed and whenever it is advisable to claim the deductions on the fiduciary income tax return care must be used in the timing of payment of expenses to make sure it matches any income earned by the estate. With the exception of the final income tax year taxpayers are not able to carry the deductions into the next year so deductions claimed in excess of income earned are wasted in any year except the final tax year. When the estate is closed if there are deductions other than charitable or personal exemptions these deductions are allowed to be passed as deductions to the beneficiaries in the year of termination. IRC Sec. 642(h). Any excess deduction is deductible by the beneficiary as a miscellaneous itemized deduction subject to a 2% adjusted gross income. However, the PA Tax Form 41 does not have a comparable provision for state tax purposes. IRC Sec. 67(b).

Another concern when selecting a tax year is the equalization of income. If a flow of income is expected in the early months of the administration of the estate it is advisable to elect a short initial tax year. This usually occurs in situations where there is income in respect to the decedent. Income in respect to the decedent is income that is earned by the decedent during their lifetime but is not received until after the person has died. This type of income is not recognized under PA Fiduciary Income Tax Laws. The Internal Revenue Code requires that any income not properly reported on the decedent^'s final return be reported by the person or entity receiving the income, normally this is the estate. IRC Sec. 691(a). The beneficiary who receives any income in respect to the decedent is allowed a deduction for the estate tax paid by the estate. IRC Sec. 691(c). Frequently, income in respect to the decedent comes as a one time lump sum payment. Income liability for the estate can be limited by a short tax year and an early payment of administrative expenses.

Shifting assets among the states trust and individuals – What to consider:

The estate as an entity reaches a higher tax bracket for income tax much quicker than an individual. An estate reaches the highest income tax bracket of 39.6% at an income of $8,450. Individuals who are unmarried, individuals who file joint returns, surviving spouses and individuals who file as head of households do not reach the 39.6% bracket until they reach an income of $283,150.00. Married individuals filing separately do not reach this highest bracket until they reach an income of $141,575.00. However, an estate only pays income on undistributed income.

The concept of distributable net income allows the fiduciary tax return to be a vehicle for reporting gross income and taking a deduction for amounts paid to income beneficiaries. Distributable net income is compiled by modifying taxable income in the following manner: no deduction for distribution to a beneficiary; no deduction for the $600 exemption; capital losses are not included; capital gains are only included in the final years tax returns (unless the will states otherwise); tax exempt interest is included; and certain adjustments are made for charitable beneficiaries. IRC Sec. 643(a).

The ability shift income between the estate and beneficiaries is now an option for a revocable trust after the death of a settler. A revocable living trust owned by the decedent may be included in the estate for federal income tax purposes by an irrevocable election by the trustee and the executor. IRC Sec. 646(b)(1). This election must be made no later than the filing date of the estate income tax return for the estates first taxable year and it is effective from the date of death until two years after if no federal estate tax return is required or if a federal estate tax return is necessary until six months after the final determination of the estate tax liability. Distributions must be timed to permit income to pass through the estate to the beneficiaries and will be taxed at a lower rate. The Tax Reform Act of 1997 made the 65 day distribution rule available to the estates. Previously this rule was only applicable to trusts. Under this rule distributions of the first 65 days of the tax year can be treated as if they were made on the last day of the previous year. IRC Sec. 663(b). This offers the personal representative the advantage of being able to have actual year end numbers in front of him when he is making decisions about distributions.

Care must be taken with distributions of principle. Even in kind distributions of principle may be treated as income for fiduciary income purposes and carries out distributable net income unless it is paid in no more than three installments and is paid in satisfaction of a bequest of a sum of money or specific item of property. This can leave beneficiaries short on cash to satisfy any tax liability.

Income passing through the estate also creates a tax deferral opportunity. This is accomplished by postponing the closing the states first fiscal year to the latest date possible. The IRS does not require beneficiaries to report income received from the estate until the calendar year in which the estates fiscal year ends. For example, if the decedent died in April 1998 and the estate chose a fiscal date ending in March 1999 the income would not be reported by the beneficiary until the 1999 tax year. The beneficiary would not have to file a return until the April 15th of the year 2000 thereby creating the possibility of not paying the taxes until that time.

The use of disclaimers by beneficiaries:

PEF Code section 6201 creates the right to a disclaim an interest. Interests that are subject to disclaimers are located in PEF section 6203. The statute also outlines rules for exercising disclaimers by fiduciaries and agents of the beneficiaries. Rules for filing, delivering and recording of disclaimers are contained in PEF section 6204. The statutory framework outlining the effect of disclaimers and rules delineating situations where disclaimers are barred are located in sections 6205 and 6206.

A disclaimer may be made at any time prior to acceptance. Acceptance has been defined as taking possession or accepting delivery of an asset; executing a written waiver of the right to disclaim; an assigning or conveying, pledging or other transfer of the interest or contracting to do so; representing to another who relies on such representation to their detriment that an interest will be accepted or an interest that is subject to judicial sale. A lapse of time in itself does not constitute an acceptance of an interest. There is a distinction made n the statute between a partial acceptance that is made before and one made after six months following the creation of the interest. Any acceptance results in a forfeit of the right to disclaim.

Disclaimers are used for a variety of reasons. They are often used to avoid taking title to assets of little value. They are used to avoid attachment by a beneficiaries creditors however, they cannot be used to defeat a claim of the United States against a beneficiary.

Disclaimers can also be a useful tax planning tool. They are use by beneficiaries other than the surviving spouse to increase the marital deduction of the surviving spouse. Disclaimers can be used by personal representatives of a beneficiary who dies shortly after a decedent where both decedent and beneficiary have common heirs. They can also be used to remove assets from the taxable estate of the surviving spouse and have an asset pass directly to the children of the decedent.

To be valid under the federal estate tax rules the disclaimer must be in writing. It must be delivered to the transferor (or their legal representative) or the holder of the legal title of the asset no later than nine months after either the date in which the transfer creating the interest occurred or the date the disclaimant reached the age of 21 years. IRC Sec. 2518. The disclaimant must not have accepted the interest. Accepting consideration for disclaiming an interest will constitute acceptance of the interest. As a result of this disclaimer the interest must pass to the spouse of the decedent or another person without any direction of the party executing the disclaimer.

Pennsylvania Inheritance Tax Valuation

Generally, assets must be valued at their fair market value on the date of the decedent’s death for Pennsylvania inheritance tax purposes. 72 Pa. Cons. Stat. Ann. §1721(a). This rule applies not only to transfers by will or intestacy but also to lifetime transfers that are subject to Pennsylvania inheritance tax. Id; see also, 72 Pa. Cons. Stat. Ann. §1707(c) (covering lifetime transfers subject to Pennsylvania inheritance tax).

Selection of Fiscal Year

Electing Alternate Valuation Dates

1. Pennsylvania Inheritance Tax

a. 72 P.S. Sec. 9121(a) mandates that the valuation date shall be the date of the decedent’s death.

(i) Alternate valuation date not available.

2. Federal Estate Tax

a. I.R.C. 2031(a) property included in a decedent’s gross estate is valued on the date of the decedent’s death.

b. Treas. Reg. 20.2031-1(b) property is generally valued as its fair market value (i.e., “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts”).

(i) Extensive regulations issued under Sec. 2031 determine how various types of property are to be valued, such as, annuities, life estates, terms for years and remainders (see Treas. Reg. 20.2031- 10).

(ii) Valuations are made utilizing actuarial tables issued pursuant to I.R.C. 7520.

c. I.R.C. 2032 provides the fiduciary with the option of valuing property in the gross estate as of one of the alternate valuations dates provided therein.

(i) If assets distributed, sold, exchanged, or otherwise disposed of, within the six months after the decedent’s death, that property must be included in the gross estate at its date of disposition value. I.R.C. 2032(a)(1).

(ii) Assets that are not distributed, sold, or exchanged within six months following death must be valued as of the date six months following the decedent’s death.

(iii) Fair market value still determined in accordance with Treas. Reg. 20.2031-1(b).

(iv) The six months is measured in months not days.

d. How to Elect Alternate Valuation.

(i) Check “yes” on line 1 of part 3 on page 2 of a timely filed Form 706, including extensions, provided it is filed within one year of date it is due. Treas. Reg. 20.2032-1(b) (1) & (2).

(ii) Election is irrevocable.

(iii) Election applies to all property included in the gross estate.

(iv) Alternate valuation is available only if the election decreases both the gross estate and the federal estate tax and/or generation-skipping transfer tax.

(v) Election can not be used simply to increase the income tax basis in estates that pay no estate tax because of the marital deduction or size of the estate.

(vi) There is no corresponding election for Pennsylvania inheritance tax purposes.

(vii) If the value of an asset such as a patent, trademark or life estate is affected by mere lapse of time, such asset must be valued as of the decedent’s death; with a possible adjustment for any difference in value not attributable to a mere lapse of time.

e. Effect on Special Use Valuation.

(i) Electing alternate valuation does not preclude election of special use valuation under I.R.C. 2032A (see Rev. Rul. 88-89, 1988-42 C.B. 4.).

f. Effect on Other Elections.

(i) The alternate valuation election will affect the ability to make elections under I.R.C. 303, I.R.C. 2032A, I.R.C. 2057, and I.R.C. 6166.

(ii) To take advantage of I.R.C. 303, the value of the corporate stock in question must exceed 35% of the excess of the gross estate over the deductions allowable under I.R.C. 2053 and I.R.C. 2054.

(iii) Whether or not electing alternate valuation will make qualifying possible, depends on the change of value of the applicable stock and the gross estate in total.

g. Planning Considerations.

(i) Opting not to make the election and keeping higher gross estate values will result in a higher basis for income tax purposes.

(ii) A higher basis in assets can reduce potential gains and increase depreciation deductions.

(iii) Where the value of the gross estate has decreased during the six-month period following the decedent's death, but the alternate valuation election is not available because the use of the marital deduction eliminates the federal estate tax, a qualified disclaimer by the surviving spouse to generate a small estate tax may be beneficial.

EXAMPLE: The decedent's estate plan provides for a pecuniary marital deduction formula and for the residue to pass to a credit shelter trust. The value of the gross estate at date of death is $ 10 million and as of the alternate valuation date is $ 9 million. Without the alternate valuation election, the marital trust will receive the entire $9 million and the credit shelter trust will receive nothing. If the surviving spouse disclaims 0.1% of her interest, this disclaimer results in the estate owing a small estate tax liability and the alternate valuation election becomes available to the fiduciary because it will reduce the gross estate and the estate tax liability. Also, the credit shelter trust can now be funded with its appropriate share of the estate.

(iv) If alternate valuation election is made, no gain or loss will be recognized from the sale of most assets within six months because the asset will have a basis determined by the sale. This is not true with respect to IRD items; such items do not get a new basis. I.R.C. 1014(c).

IDENTIFYING AND SOLVING SELECTED PROBLEMS

IN PROBATE ADMINISTRATION

A. Examining the Process of Appointing Administrators.

1. The Legislature has established an order of preference and this order is not to be departed from except for good cause. 20 Pa. C.S.A. Section 3155. Pursuant to this statute, the sequence is as follows:

(a) "Those entitled to the residuary estate under the will.

(b) The surviving spouse.

(c) Those entitled under the intestate law, as the register, in his discretion, shall judge will best administer the estate, giving preference, however, according to the size of the shares of those in this class.

(d) The principal creditors of the decedent.

(e) If any of the above renounce his right to letters of administration, the register, in his discretion, may appoint a nominee of the person so renouncing in preference to the persons set forth in any succeeding clause.

2. Persons deemed not qualified. 20 Pa. C.S.A. Section 3156."

(a) "Under 18 years of age.

(b) A corporation not authorized to act as a fiduciary in the Commonwealth

(d) A nominee of any beneficiary, legatee or person having any interest in the estate when such person is a citizen of another country and it is doubtful that this person will enjoy the actual benefit, use or enjoyment of the property he is to receive.”

3. The register shall have discretion to refuse letters of administration to any individual not a resident of the Commonwealth. 20 Pa. C.S.A. Section 3157.

4. Letters of Administration C.T.A. 20 Pa. C.S.A. Section 3158.

(a) Where there is a will, but no executor nominated qualifies.

5. Letters of administration D.B.N. or D.B.N.C.T.A. 2 Pa. C.S.A. Section

3158.

(a) When an entire vacancy occurs in the office of personal representative before administration is complete. 20 Pa. C.S.A. Section 3159.

6. Letters of administration durante minoritate, durante absentia and pendente lite.

(a) Letters that are granted when the need arises. 20 Pa. C.S.A. Section 3160.

7. Factors to be considered.

(a) Special family needs.

(b) Stability, impartiality and expertise.

(d) Possible length of time needed to administer estate.

(e) Compensation of the fiduciary.

B. Determining the Continuation of Decedent's Business.

1. Determine Authority to Continue Business.

(a) If the governing instrument does not authorize fiduciary to continue to run the business, a petition must be filed under 20 Pa. C.S.A. Section 3314; which provides that the Orphans' Court may authorize a personal representative to continue a business of the estate for the benefit of the estate.

(i) For cause shown, the personal representative may disregard the provisions of the governing instrument.

(b) The order may also provide:

(i) "for the conduct of business by the personal representative, alone or jointly with others, or unless restricted by the terms of the governing instrument, as a corporation to be formed;

(ii) the extent of the liability of the estate or any part thereof. or of the personal representative , for obligations incurred in the continuation of the business;

(iii) whether liabilities incurred in the conduct of the business are to be chargeable solely to the part of the estate set aside for use in the business or to the estate as a whole;

(iv) the period of time the business may be conducted; and

(v) such other regulations, including accountings, as the court deems necessary."

2. Are there valid agreements which provide for the transfer of ownership or
management to others which impact upon ability of personal representative to run or control the business.

(a) Stockholders Agreements

(b) Partnership Agreements

3. Collect Basic Documents.

(a) Examples:

(i) Organizational documents and minutes;

(ii) State and Federal income tax returns for the preceding 5 years.

(iii) Pension and profit sharing agreements.

(iv) Shareholders agreements.

(v) Insurance.

4. Financial Advisability of Continuing Business.

(a) Cash requirements of the business; will the business require capital from the estate.

(b) Cash requirements of the estate for tax and expenses;

(d) Is the best interests of the heirs to sell, liquidate or discontinue the business.

5. Managerial Capacity to Continue Business.

(a) What is the adequacy of the day-to-day management.

(b) What is the ability of the personal representative to oversee the business.

6. Financial Outlook of the Business.

(a) Is it possible to continue to operate the business profitably.

(b) Availability of working capital.

7. Is Distribution of the Business Possible.

(a) Do the heirs want an in-kind distribution.

(b) Can the heirs afford to receive an in-kind distribution of the business.

(d) Do the heirs have the ability to operate the business.

8. Possible Conflicts.

(a) attorney/accountant who may also represent clients who are adversely affected by the decision to operate the business.

9. Incorporation under 20 Pa. C.S.A. Section 3315

(a) "Court, after notice to all parties in interest, unless restricted by the terms of the governing instrument, may authorize the personal representative to organize a corporation to carry on the business of the estate, whether the business was owned alone or with others"..

(b) also, the court has authority to order that "all or part of the property of the estate which was originally invested in the business be contributed for stock of the corporation."

10. Responsibilities of continuing a business.

(a) If the personal representative operates the business without authorization, he does so at his own peril.

(b) He may be surcharged for any losses.

C. Simultaneous Death.

1. Pennsylvania has adopted the Uniform Simultaneous Death act which provides that where the title to property or the devolution thereof depends upon the priority of death and there is no sufficient evidence that the persons died otherwise than simultaneously, the property of each person will be disposed of as if each person had survived. 20 Pa. C.S.A. Section 8501.

2. Where two or more beneficiaries are designated to take successively by reason of survivorship under another person's disposition of property and there is no sufficient evidence that these persons died other than simultaneously, the property to be disposed of shall be divided into as many equal portions as there are successive beneficiaries and these portions shall be distributed respectively to those who would have taken in the event that each designated beneficiary had survived. 20 Pa. C.S.A. Section 8502.

3. Where there are joint tenants or tenants by the entirety, and there is no sufficient evidence that the two joint tenants or tenants by the entirety died otherwise than simultaneously, the property so owned, shall be distributed, one-half as if one had survived, and one-half as if the other had survived. 20 Pa. C.S.A. Section 8503.

4. Where the insured and the beneficiary in a policy of life or accident insurance have died and there is no sufficient evidence that they died otherwise than simultaneously, the proceeds shall be distributed as if the insured had survived the beneficiary. 20 Pa. C.S.A. Section 8504.

5. The rules for disposition of property as contained above do not apply in the case of a will, trust, deeds, or contracts of insurance wherein different provisions have been made for the distribution of property. 20 Pa. C.S.A. Section 8505.

6. The standard of proof with regard to all survivorship cases is preponderance of the evidence. Standard Pennsylvania Practice 2d Section 144:7

a. The fact of survivorship does not require any higher degree of proof than any other fact in a civil action.

7. The burden of proof as to survivorship falls on the party whose claim is dependent upon survivorship. Saligman Estate (1957)13 D&C 432.

D. Filing for Partition of Undivided Interests in Property.

1. A partition action allows joint owners of property, who no longer desire to own that particular property to divest themselves of ownership of that particular property for what such person believes is fair consideration. That is, it allows each owner to possess and control his or hers interest in a piece of property exclusive from the other.

(a) It is to prevent, in many cases, property from becoming entirely useless.

(b) It is an action to obtain possession; not title to property.

(c) The right of action is dependent upon title. A plaintiff in a partition action must first establish that he or she has title to the property in question.

i. An equitable title or estate is sufficient to support an action in partition. Hanna v. Clark (1899) 189 Pa. 321, 41 A. 981.

ii Persons who have become tenants in common either through inheritance or under the intestate statutes may file an action for partition, at any time after the death of the decedent. Hauger v. Hauger (1954) 376 Pa. 216, 101 A2d. 632.

(d) An action in partition cannot be the means by which title to disputed property is resolved.

2. Real property.

(a) A primary purpose to partition real estate is to enable each owner to possess and control his own share exclusively. Done to prevent strife and disagreement.

i. Action is commenced by a petition being filed.

3. Personal Property.

(a) An action to partition personal property is commenced by a petition filed in the Court of Common Pleas of the county where such property is located.

i. The petition must contain averments that: (1) property is jointly owned; (2) the value of the property; and (3) the inability of the joint owners to agree as to an amicable disposition of the property.

(b) Cannot be partners or cannot be husband and wife.

(c) Typically, the court appoints a trustee who takes possession of the property. Trustee will file a bond equal to double the value of the property.

4. Objection of lien creditors.

(a) Rights of tenants in common to make partition are paramount to the rights of a lien creditor. The only right a creditor has is to object on the basis of fairness or fraud which affects his interest (i.e. diminution of value)

a mortgagee or an attaching creditor is not entitled to partition and may not be made a party to a partition action. Pa. Standard Practice 2d Section 122:54

5. The provisions in a will or trust restricting partition will be given effect.

(a) A provision in a will which prohibits or postpones a partition of the estate is valid. No partition will be granted where the will expressly or by necessary implication directs that the property be kept intact. Ewalt v. Davenport (1917) 257 Pa 385, 101 A 756.

i. A testamentary direction to sell property and distribute the proceeds will bar petition. Breeden v. Cooper (1955) 383 Pa 109, 118A 2d 151.

ii. Effect will be given to a testamentary provision that property is not to be divided until one or more of the divisees obtains a given age.

iii. Where a will prescribes a mode of division, such direction typically excludes an action in partition.

(b) Partition of a decedent's property takes place in the Orphan's Court Division of a Court of Common Pleas.

i. Partition action is governed by the Probate, Estates and Fiduciaries Code.

ii. 20 Pa. C.S.A. Section 3534 provides that “the court for cause shown, may order that the estate to be distributed in kind to the parties in interest, including fiduciaries. In such case, when there are two or more distributees, distribution may be made of undivided interests in real or personal property or the personal representative or a distributee may request the court to divide, partition and allot the property, or to direct the sale of the property, If such a request is made, the court after such notice as it shall direct, shall fairly divide, partition and allot the property among the distributees in proportion to their respective interests, or the court may direct the personal representative to sell at a sale confined to the distributees, or at a private or public sale any property which cannot be so divided, partitioned pr allotted.

iii. Typically, the Court of Common Pleas will not interfere with the parties' respective interests where the estate of a decedent is under current administration. Standard Pennsylvania Practice 2d Section 122:42.

iv. Where the Orphans' Court Division and the Court of Common Pleas may have concurrent jurisdiction in partition, the court which acquires jurisdiction first retains it to the exclusion of the other. In re Doyle's Estate (1927) 291 Pa. 263, 139 A 829.

v. Where a spouse conveys away the spouse's property without the other spouse's joinder, and then dies, the surviving spouse's interest in the property may be set aside to the surviving spouse by an action in partition. Balkiewicz v. Asenavage (1962) 406 Pa. 501, 178 A2d. 591.

vi. A beneficiary of a trust cannot maintain a partition action with regard to the corpus of the trust. Breeden V. Cooper (1955) 383 Pa. 109, 118 A2d 151.

E. Declaratory Judgements.

1. Are expressly authorized by the Declaratory Judgements Act. 42 Pa. CSA Sections 7531-7541.

2. Purpose.

(a) Afford relief from uncertainty with regard to rights, status, and other legal relations.

(b) Speedily determine issues.

3. The action for a declaratory judgment is particularly well suited to orphan's court where the court has supervisory powers over the administration of decedent's estates.

4. Under the Act, any person interested under a will may have determined any question of construction or validity arising under the instrument, and obtain a declaration of rights, status, or other legal relations under it. 42 Pa CSA Section 7533.

5. Under the Act, "any person interested, as or through an executor, administrator, trustee, guardian, or other fiduciary, creditor, devisee, legatee, heir, next of kin, in the administration of a trust, or of the estate of a decedent, may have a declaration of rights or legal relations in respect thereto:

(a) to ascertain any class of creditors, devisees, legatees, heirs, next of

kin or others;

(b) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity; or

(c) to determine any question arising in the administration of the estate or trust; including questions of construction of wills and other writings.” 42 Pa. C.S.A. Section 7535.

6. The right to construe wills and otherwise assist in the administration of: estates by declaratory judgments has been repeatedly exercised by the courts. Standard Pennsylvania Practice 2d Section

(a) Examples:

(i) To what extent charitable gifts in a will are valid;

(ii) Does a defendant's conviction of voluntary manslaughter of the decedent disqualify him from receiving benefits from the decedent's estate and as serving as executor;

(iii) Is an interest created under a will vested or contingent;

(iv) Are the rights of parties to real estate valid;

(v) Is title to real estate vested in a divisee;

(vi) Did the testator make a gift or did he merely create a right of first refusal.

7. Powers of Fiduciaries.

(a) The declaratory judgment procedure may not be used by an executor to obtain advice as to how to proceed in the discharge of his duties.

(b) No right to use the procedure merely to obtain advice as to whether certain action, if taken, would be properly within the powers of a fiduciary.

(i) Determination that there is no money to be distributed;

(ii) An action in partition would have resulted in a destruction of the property;

(iii) Impossibility or possibility of performance by a fiduciary under a will or trust instrument.

F. What Needs to be Done When the Estate Involves a "Missing Person".

1. Proof of Death

(a) "When a person domiciled in the Commonwealth disappears and is absent from his place of residence without being heard of after diligent inquiry. The court of the county where he last resided, upon the petition of any party of interest , may make a finding and decree that the absentee is dead and of the date of his death provided the notice required by Section 5704 has been given to the absentee 20 PEF Code Section 5701(a).

(b) "When the death of the person or the date thereof is in issue, his unexplained absence from his last known place of residence and the fact that he has been unheard of for 7 years may be a sufficient ground for finding that he died 7 years after he was last heard of.." 20 PEF Code 5701(b).

(c) "The fact that an absentee was exposed to specific peril of death may be sufficient ground for finding that he died less than 7 years after he was last heard of." 20 PEF Code 5701(c).

(d) "All persons shall be competent to testify concerning the death or disappearance of an absentee regardless of relationship by marriage to him or of interest in his estate." 20 PEF Code 5701(d).

2. Trustee for Absentee.

(a) "When a person domiciled or having property in the Commonwealth disappears and is absent from his last known place of residence for a period of one year without being heard of after diligent inquiry, the court of the county where the absentee last resided or, if a nonresident, the court of the county where any of his property is located, upon petition of any person who would be a party in interest were the absentee deceased or of any insurer or creditor of the absentee, after notice as provided in Section 5704, upon good cause being shown, may find that the absentee's property requires protection and that he was last heard of as of a certain date and may appoint a trustee to take charge of his estate."20 PEF Code Section 57.02.(a).

(b) "The trustee appointed will be required to post such bond and will be held to the standard as would a guardian of the estate of a minor". 20 PEF Code Section 5702(b).

3. Distribution of property of absentee.

(a) "Upon the entry of a decree establishing the death of a person domiciled in the Commonwealth, the real and personal property of the absentee shall be administered by his personal representative as in the case of other decedent." 20 PEF Code Section 5703.

(i) No distribution is made unless pursuant to an order of court.

(ii) Courts will typically require that a "refunding bond" be filed by the distributee in the event the absentee is alive and might make demand for return of his property.

4. Notice to absentee.

a. "The court, if satisfied concerning the interest of the petitioner, shall cause to be advertised in a newspaper of general circulation in the county of the absentee's last known residence and in the legal journal, if any, designated by rule of court for publication of legal notices, once a week for four successive weeks or for such shorter period as the court may deem appropriate and to be advertised as the court according to the circumstances of the case shall deem advisable, the fact of such application, together with notice that on a specified day, which shall be at least 2 weeks after the last appearance of any such advertisement, the court, or a master appointed by the court for that purpose, will hear evidence concerning the alleged absence, including the circumstances and duration thereof." 20 PEF Code Section 5704.

5. Search for Absentee.

a. "The court on its own motion or upon the application of any party in interest, may direct [the interested party] to search for the absentee in any manner which the court shall deem appropriate. The expenses of such a search shall be paid out of the property of the absentee". 20 PEF Code Section 5705.

G. Replacing a Representative During the Administrative Process.

1. Letters of Administration: "The Register of Wills may revoke a grant of Letters of Administration granted whenever it appears that the person or persons whom they were earlier granted are not entitled thereto." 20 Pa. C.S A Section .3181 (a). This may be done in instances where the letters were originally granted without notice to others having a superior or equal right thereto.

a. The action of the Register in revoking letters will not be set aside e of discretion. Nerhoof Estate., 6 Fid. Rep. 209 (1956); Beull Estate, 2 Fid. Rep. 10 (1951). The most frequent occasion for revoking Letters of Administration is the later discovery of a Will.

b. The procedure for securing revocation of letters is by petition for citation filed with the Register, to which an answer may be filed. Thereafter the issue will be decided by the Register.

c. Third persons can rely on the authority of the administrator to act for the estate until his or her letters are revoked since good faith acts by the personal representative are not affected by subsequent revocation. 20 Pa. C.S.A Section 3329. Moreover, 20 Pa. C.S.A. Section 3357(b) provides that sales, mortgages and conveyances made by a personal representative shall not be prejudiced by the terms of a Will thereafter probated or by revocation letters.

2. Letters Testamentary: "The Register can amend or revoke Letters Testamentary at any time when they are not in conformity with the provisions of a Will admitted to probate." 20 Pa. C.S.A. Section3181(b). The procedure for securing revocation of the grant of Letters Testamentary and the effect of such revocation on acts earlier performed by the executor are the same as outlined with regard to administrator.

3. “The power of a personal representative or administrator to whom letters have been granted shall not be affected by an appeal from the decree of the Register granting such letters." 20 Pa. C.S.A. Section 908(c).

4. Removal, Death or Discharge. The Orphans^' Court has exclusive jurisdiction over the removal, discharge and replacement of a fiduciary. 20 Pa. C.S.A Section 711(12).

1. Grounds for removal: 20 Pa. C.S.A. Section 3182 provides for removal of a personal representative if he:

(a) is wasting or mismanaging the estate, is or is likely to become insolvent, or has failed to perform any duty imposed by law; or

(b) has been adjudged a lunatic, a habitual drunkard, or a weak-minded person; or

(c) has become incapacitated to discharge the duties of his office because of sickness or physical or mental incapacity and his incapacity is likely to continue to the injury of the estate; or

(d) has removed from the Commonwealth or has ceased to have a known place of residence therein, without furnishing such security or additional security as the Court shall direct; or

(e) when, for any other reason, the interests of the estate are likely to be jeopardized by his continuance in office."

2. Procedure for and effect of Removal: 20 Pa. C.SA Section 3183 provides the procedure for removal. The Court has the authority by virtue of its own motion or by virtue of the petition of any party interested in the administration of the estate which properly alleges adequate and sufficient grounds for removal shall, cause the personal representative to appear and show cause why he or she should not be removed. When necessary to protect the rights of creditors and parties in interest, the Court may without notice remove the personal representative.

3. Letters Testamentary or of Administration.: Upon removal, the Court may direct the Register of Wills to grant new Letters Testamentary or of Administration to whomever is entitled thereto. When an entire vacancy occurs in the office of personal representative before administration is completed, the Register is required to grant Letters D.B.N. or Letters D.B.N.C.T.A. to the person or persons entitled thereto. 20 Pa. C.S.A Section 3159. Such an administrator has the power to recover from his or her predecessor or from the personal representative of such predecessor and stands in the predecessor's stead for all purposes. 20 Pa. C.S.A Section 3326.

4. Death or Incompetency of Fiduciary ^"The personal representative of the estate of a deceased fiduciary or the guardian of an adjudged incapacitated fiduciary by reason of his position shall not succeed to the administration of, or have the right to possess, any asset of an estate which was being administered by the deceased or incapacitated fiduciary, except to protect it pending its delivery to the person entitled to it. The account of the deceased or incapacitated fiduciary may be filed by his or her personal representative or guardian, and it must be filed if the court so directs.. The court may order the personal representative or guardian of the deceased or incapacitated fiduciary to make the distribution and to make the transfers and assignments necessary to carry into effect a decree of distribution”. 20 Pa. C.S.A. Section 3324.

H. Foreign Fiduciaries.

1. "Generally, a foreign fiduciary may institute proceedings in the Commonwealth and may exercise all the other powers of a similar local fiduciary; except that a foreign fiduciary shall have no such power when there is an administration in the Commonwealth.^"20 Pa. C.S.A. Section 4101.

2. Section 4101 provides that except in the case of powers with respect to bank accounts and securities, the maintenance of a proceeding by a foreign fiduciary is subject to the following additional conditions and limitations:

a. "The foreign fiduciary must file with the register of the county where the power is to be exercised an exemplified copy of his appointment or other qualification in the foreign jurisdiction, together with a copy of the exemplified copy of the will or other instrument, if any, in pursuance of which he has been appointed or qualified. If exercising a power over real estate the will must be admitted to probate."

b. "The foreign fiduciary shall execute and file an affidavit with the register where the power is to be exercised stating that after diligent search and inquiry, the estate of which he is fiduciary is not, to his knowledge or so far as he has been able to discover, indebted to any person in the Commonwealth, and that he will not exercise any power which would not be permitted to exercise in the jurisdiction of his appointment. The affidavit is attached to the copy of his appointment.

c. "When the foreign fiduciary is a personal representative or a trustee under the will of a nonresident decedent, he shall not exercise any of his powers within the Commonwealth for one month after the decedent's death."

d. "When the foreign fiduciary exercises a power to sell or mortgage real estate, all taxes due thereon to the Commonwealth or any_. subdivision thereof must be paid or provided for".

3. 20 Pa. C.S.A. Section 4102 provides with respect to securities an bank accounts as follows:

a. Securities. "When there is no administration in the Commonwealth, a foreign fiduciary, upon submission of a certificate of his appointment, shall have all of the powers of a similar local fiduciary with respect to stocks, bonds and other securities of a Pennsylvania corporation or of a federal corporation located in Pennsylvania and shall not be required to comply with the conditions of Section 4101 of the PEF Code.^"

b. Bank Accounts. ^"When there is no administration in this commonwealth, a foreign fiduciary shall have all of the powers of a similar local fiduciary with respect to money deposited or invested in a financial institution located in this Commonwealth and shall not be required to comply with the conditions of Section 4101 of the PEF Code if he has submitted to the financial institution a certificate of his appointment and an affidavit stating that after diligent search and inquiry the estate of which he is a fiduciary is not, to his knowledge or so far as he has been able to discover, indebted to any person in this Commonwealth and that any taxes owing by such estate to the Commonwealth or any subdivision thereof have been paid or provided for.^"

4. Upon commencing any proceeding in any court of the Commonwealth, the foreign fiduciary, in addition to the requirements required under Section 4101 of the PEF Code shall file with the court an exemplified copy of his official bond if any. If the court believes that additional security is necessary, it may, order the action stayed until sufficient security is provided. 20 Pa. C.S.A. Section 4101.

I. Undue Influence and Capacity Issues.

1. Generally, a person who has a sound mind and who has attained the age set by the statute (i.e. 18 years of age) may make a will. Pa. C.S.A. Section 2501 (a).

a. An adjudication of incapacity is not conclusive of testamentary capacity. In re Lanning's Estate, 1964, 200 A2d 392, 414 Pa. 313.

b. Evidence of a general condition of testamentary incapacity does not negate the possibility of a lucid interval.

2. Testamentary capacity relates to soundness of mind. At law, a testator is deemed to have a sound mind when he:

a. has a full and complete understanding about the act in which he is engaged;

b. has an intelligent knowledge of those who are the natural objects of his bounty;

c. has a knowledge of what his estate consists; and

d. knows what he wants done with his estate. In re Greenfield's Estate, 1974, 321 A2d 922, 457 Pa.114.

3. A testator's capacity to make a will is tested at the time the will was executed; however, evidence of capacity/incapacity near or approximate the date of the will is admissible to show the existence or lack of capacity when the will was executed. Masciantonio's Estate, 1958, 141 A2d. 362, 392 Pa. 362.

a. No great deal of reason need be possessed by a testator to validate his will where there is no fraud or imposition.

b. Less capacity is needed to make a valid will then to transact business, convey real estate, to make a contract or to make a gift. Lawrence's Estate, 1926, 132 A 786, 286 Pa. 58.

c. The bottom line, the capacity necessary to execute a valid will is less than that necessary to transact business in the normal course.

4. Mere loss of memory is not indicative of testamentary capacity. It must extend to the testator's knowledge of his property or who the natural objects of his bounty are ; or how he wishes to dispose of his property. Kline's Estate, 1955, 115 A2d. 364, 382 Pa. 395.

5. Insanity, delusions, mental illness and the like do not in and of themselves do not vitiate a person's testamentary capacity unless they impact upon that person's knowledge of the magnitude of his estate, the objects of his bounty what he wants done with his estate or the understanding about the act he is engaged. Trich's will, 1895,30 A. 1053, 165 Pa. 586.

6. A particular belief or opinion or eccentricity do not in and of themselves establish a lack of testamentary capacity. Must go to the factors which will negate testamentary capacity.

7. Testamentary capacity is presumed to exist unless it is disproven. Palmer's Estate, 1908, 68 A. 710,219 Pa. 303.

a. Typically, the burden of proof is on the contestants. when a lack of testamentary capacity is predicated on fraud, undue influence, a confidential relationship or forgery.

b. In the case of a large gift to a stranger, circumstances surrounding the testator's mental condition, participation of a stranger in drafting a will, may cause the burden of proof to shift in showing that no undue influence was exercised. In re Miller's Estate, 1919, 108 A. 616, 265 Pa. 315.

c. The standard by testamentary capacity is disproven is by clear and convincing evidence. In re Brantlinger's Estate, 1965, 210 A2d. 246,418 Pa. 236.

8. Undue Influence.

a. Depends on the individual circumstances of each case.

b. The general rule is that to set aside a will on the ground of undue influence, there must be an impairment to such an extent hat the testator's free will is destroyed . Franz's Estate, 1951, 84 A2d. 292, 368 Pa. 618.

c. It has been held that it takes less undue influence to destroy the free will of a person with less than full mental capacity than one with full capacity. Consequently, it is appropriate to inquire into the strength and condition of the mind when investigating an allegation of undue influence. Robinson v. Robinson, 1902, 53 A.253, 203 Pa. 400.

d. In context of drafting a will, it connotes control of the Testator's mind at the time and in the very act of drafting the will. Persuasion overcomes the testator's judgment.

e. The existence of a confidential relationship between a testator and a beneficiary, standing alone, does not equate to undue influence. It will exist in such context where it can be established that the parties did not deal with each other on equal terms. That is, the beneficiary took advantage of a weakness of the testator to cause or compel him to do or not to do something.

f. The effect of undue influence is to render all or a part of a testamentary instrument null or ineffectual. That is, portions of the will not affected by the undue will be given affect.