CHAPTER 10
 

MISCELLANEOUS PROCEEDINGS

 

 
 
 
 

E.

Conversion to Total Return Unitrust
     
If a party fails to comply with an order or decree of the Orphans’ Court, the order or decree may be enforced by: (i) attachment of the person, sequestration of real or personal property, execution on personal property; or (ii) execution on real estate. See PEF Code §§781-786.

The attachment process is cumbersome and should be undertaken only if more direct remedies fail or are unavailable. It will generally make more sense, for example, to petition the Court to remove a noncompliant fiduciary, See PEF Code §§3181-3184, 7121, or to appoint an auditor to state an account, See PEF Code §751, than pursue attachment. Nevertheless, the most frequent use of the attachment process involves forcing fiduciaries to file an account.

If all else fails a party may pursue attachment by filing the following four (4) petitions. The steps to compel an account are illustrated below while similar steps would be required for other relief.
 
   
1.

Petition for Citation to Show Cause Why an Account Should Not be Filed

     
   

If the respondent fails to answer the petition, the Court may enter a decree granting the prayer of the petition. See Phila.O.C. Rule 3.2.B.

If the respondent files an answer, or if the account is filed, there is no need to pursue the following steps. If an answer if filed which raises an issue of fact, a conference or hearing will be scheduled. See Phila.O.C. Rule 3.2.B.

     
2.   Petition for Order to Compel
     
    If the respondent does not comply with the Court’s decree, the citation may be enforced by filing a petition for order to compel the filing of an account.
     
3.   Petition for Citation for Writ of Attachment
     
    If the respondent does not file an account or answer, the next step is to file a petition for citation for writ of attachment.
     
4.   Petition for Writ of Attachment
     
    If the respondent does not answer, the last step is to file a petition for writ of attachment.
 
All four (4) petitions are filed with the Clerk of the Orphans’ Court pursuant to Phila.O.C. Rule 3.5.B. Service of the writ of attachment is made by the Sheriff. See PEPH, Green Book, 2.7. See also Chapter 2 for an in-depth discussion of the petition process.
 

 


 
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