J-S50013-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    IN RE: ESTATE OF GEORGE D.                 :   IN THE SUPERIOR COURT OF
    MCHENRY, DECEASED                          :        PENNSYLVANIA
                                               :
                                               :
    APPEAL OF: BOROUGH OF                      :
    WILKINSBURG                                :
                                               :
                                               :
                                               :   No. 112 WDA 2019

               Appeal from the Order Entered December 19, 2018
      In the Court of Common Pleas of Allegheny County Orphans' Court at
                           No(s): No. 02-12-00611


BEFORE:      LAZARUS, J., MURRAY, J., and COLINS, J.*

MEMORANDUM BY LAZARUS, J.:                         FILED SEPTEMBER 10, 2019

        The Borough of Wilkinsburg appeals from the order, entered in the Court

of Common Pleas of Allegheny County, Orphans’ Court Division, granting the

petition of Mildred O. Merlo, Administratrix of the Estate of George D.

McHenry, Deceased, to renounce her right to administer certain real property

belonging to the Decedent. Upon careful review, we vacate and remand with

instructions.

        Decedent died intestate on January 16, 2012, leaving Administratrix, his

sister, as his only heir.           Letters of Administration were granted to

Administratrix by the Register of Wills of Allegheny County on January 26,

2012. Among Decedent’s assets were two parcels of real property located at


____________________________________________


*   Retired Senior Judge assigned to the Superior Court.
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27 Hart Street and 32 Hart Street, Wilkinsburg, Pennsylvania (“Properties”).

Despite the efforts of Administratrix and her counsel, the Properties, which

are subject to significant tax debts,1 remained unsold.

       Accordingly, on November 19, 2018, Administratrix filed a petition

pursuant to section 3312 of the Probate, Estates, and Fiduciaries (“PEF”) Code,

seeking to “abandon said premises” and “transfer legal title thereto to the

Borough of Wilkinsburg[.]” Petition, 11/19/18, at 2. The court scheduled a

hearing for December 4, 2018, at which time counsel for Administratrix and

the Borough appeared.           Upon questioning from the court, counsel for

Administratrix stated that he had not provided notice of the petition to the

Decedent’s creditors. Accordingly, the court directed counsel to provide notice

to creditors and rescheduled the hearing for December 19, 2018. In addition,

counsel for the Borough noted the Borough’s opposition to the relief

requested, stating that “[t]he Borough is just not interested in obtaining

tenement of the [Properties], quite frankly.” N.T. Hearing, 12/4/18, at 6.

       Following the second listing, on December 19, 2018, the court issued an

order authorizing the Administratrix to renounce her right to administer the

Properties and to transfer title to the Borough. The Borough filed a timely

notice of appeal, followed by a court-ordered Pa.R.A.P. 1925(b) concise


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1According to Schedule I of the Pennsylvania Inheritance Tax Return filed by
Administratrix, Decedent owed taxes in the amount of $15,000 on 32 Hart
Street and $608 on 27 Hart Street. The properties were valued at $2,000 and
$400, respectively, on Schedule A of the inheritance tax return.

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statement of errors complained of on appeal. The Borough raises the following

question for our review:

      Did the trial court err as a matter of law in ordering that the title
      to a valueless asset renounced by the [A]dministratrix be
      transferred to the Borough of Wilkinsburg?

Brief of Appellant, at iii.

      Under the PEF Code, a personal representative does not have title to a

decedent’s real property. Rather, “[l]egal title to all real estate of a decedent

shall pass at his death to his heirs or devisees, subject, however, to all the

powers granted to the personal representative by [the PEF Code] and lawfully

by the will and to all orders of the court.” 20 Pa.C.S.A. § 301(b). It is the

right and duty of a personal representative to take possession of, maintain

and administer a decedent’s real estate until such time as it is sold or

distributed. See 20 Pa.C.S.A. § 3311.

      However, “a fiduciary is not required to exercise his right to administer

estate property when in his reasonable judgment it is inadvisable to do so.”

20 Pa.C.S.A. § 3312, comment.          Accordingly, section 3312 provides that

“[w]hen any property is of no value to the estate, the court may authorize the

personal representative to renounce his right to administer it.” 20 Pa.C.S.A.

§ 3312. “When the personal representative’s right to administer is renounced,

full legal and equitable title will be in those beneficially interested in the asset,

subject of course to their right to disclaim.” Id., comment.




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        Here, immediately upon Decedent’s death, legal title to the Properties

passed to Administratrix, in her individual capacity, as Decedent’s sole heir-

at-law. See 20 Pa.C.S.A. § 301(b). Administratrix’s renunciation of her right

to administer the Properties had no effect on their legal title.     Rather, the

renunciation merely relieved the Administratrix of her obligation to administer

the Properties in her fiduciary capacity.        Upon renunciation, legal title

remained in Administratrix, individually, as sole intestate heir.       See 20

Pa.C.S.A. § 3312, comment. While Administratrix, in her individual capacity,

may disclaim her interest in the Properties by filing a written disclaimer

pursuant to 20 Pa.C.S.A. § 6201, she has not done so. Therefore, legal title

remains vested in Adminstratrix, individually, and it was error for the court to

order that title be transferred to the Borough, which in any event did not want

the Properties.

        In light of the foregoing, we vacate the order of the Orphans’ Court, and

remand for the entry of a new order limited to authorizing the Administratrix

to renounce her right to administer the properties.

        Order   vacated;   case   remanded    with   instructions.   Jurisdiction

relinquished.

        Judge Colins joins the Memorandum.

        Judge Murray did not participate in the consideration or decision of this

case.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/10/2019




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