Loading...
HomeMy WebLinkAbout11-01-07 c ,.-".... , ..,i --J I.} 1 , ; ) c..J ECKERT SEAMANS CHERIN & MELLOTT, LLC Thomas P. Gacki, Esquire 1.0. No. 44864 213 Market Street, Eighth Floor P. O. Box 1248 Harrisburg, PA 17101-1248 717.237.6093 tgacki@eckertseamans.com IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In Re: Alessandra Victoria Zimmerman Irrevocable Trust Under Agreement Dated January 31, 2007 No. JJ~61-oq00 PETITION FOR APPOINTMENT OF CORPORATE CO-TRUSTEE IN ACCORDANCE WITH 20 PA. CONS. STAT. SECTION 7740.1 AND 20 PA. CONS. STAT. SECTION 7740.2 TO THE HONORABLE, THE JUDGES OF SAID COURT: The Petition of Mark J. Zimmerman, by his counsel in this matter, Eckert Seamans Cherin & Mellott, LLC, respectfully represents: 1. Settlor, LeRoy S. Zimmerman, Esquire, a resident of Dauphin County, Commonwealth of Pennsylvania, established the Alessandra Victoria Zimmerman {L0338026.1 } Crg Irrevocable Trust ("Trust") by Agreement dated January 31,2007 ("Trust Agreement"). A copy of the Trust Agreement is attached hereto and made a part hereof as Exhibit "A". 2. At the time the Trust was established, Petitioner, Mark J. Zimmerman, was named as sole Trustee of the Trust under the Trust Agreement. 3. Petitioner, Mark J. Zimmerman, is a resident of Cumberland County, Commonwealth of Pennsylvania. The beneficiary of the Trust is Alessandra Victoria Zimmerman ("Beneficiary"), a resident of Cumberland County, Commonwealth of Pennsylvania. This Court has jurisdiction over this matter pursuant to 20 Pa.C.S. Section 7708(a)(1) & (3) of the Pennsylvania Decedents, Estates, and Fiduciaries Code, since both Petitioner and Beneficiary are residents of Cumberland County. 4. Petitioner, Mark J. Zimmerman, desires to appoint Hershey Trust Company ("HTC") as Corporate Co-Trustee of the Trust. Petitioner desires to add HTC to allow the Trust to invest in HTC's common trust funds and other proprietary investments. HTC's Consent to serve as Corporate Co-Trustee is attached hereto and made a part hereof as Exhibit "B". -2- 5. Beneficiary is a minor and Petitioner is her parent and natural guardian. Under the circumstances, no notice needs to be provided to the minor Beneficiary since any such notice would be served on Petitioner in any event. 6. Petitioner believes it is in the best interest of the Beneficiary to allow Petitioner to remove and replace any corporate co-trustee without the necessity of seeking court approval in the future. Petitioner believes that this flexibility will allow him to work with a corporate co-trustee with full fiduciary duties to the Beneficiary, while allowing Petitioner to either remove or replace the corporate co-trustee in the event Petitioner is not satisfied with the performance of the corporate co-trustee. This will allow Petitioner to retain all of the control of a sole trustee while employing the professional services of a corporate co-trustee of his choosing. 7. Settlor has consented to this petition and his Consent is attached hereto and made a part hereof as Exhibit "e". WHEREFORE, Petitioner, Mark J. Zimmerman, prays this Honorable Court to enter a Final Decree in the form attached appointing HTC as Corporate Co-Trustee of the Trust. ReTI: su Thomas P. acki, Esquire ECKERT SEAMANS CHERIN & MELLOTT, LLC I.D. No. 44864 213 Market Street, Eighth Floor P. O. Box 1248 Harrisburg, PA 17108-1248 -3- 717.237.6093 Date: IO/~l , ,2007 Counsel for Petitioner Mark J. Zimmerman -4- VERIFICA liON I, Mark J. Zimmerman, do hereby verify that the facts set forth in the foregoing Petition To Appoint HTC as Corporate Co-Trustee in Accordance with 20 Pa. Cons. Stat. 97740.1 and 20 Pa. Cons. Stat. 97740.2 are true and correct to the best of my knowledge, information and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S.A. 9 4904, relating to unsworn falsification to authorities. Date: I D I? 0 101 /fJ Mark J. Zimmerman THE ALESSANDRA VICTORIA ZIMMERMAN TRUST NOW, the 3J!f day of January, 2007, LEROY S. ZIMMERMAN, of Susquehanna Township, Dauphin County, Pennsylvania, as Grantor, by this Agreement and desiring to establish a Trust, hereby assigns to MARK. J. ZIMMERMAN, an adult individual residing in Dauphin County, Pennsylvania, as Trustee (hereinafter referred to in the singular neuter gender as the "Trustee"), the property described in Schedule A to be held, together with such additional property as may be transferred, devised or bequeathed hereto by Grantor or any other person, upon the following terms of trust: FIRST: DISPOSITIVE PROVISIONS DURING BENEFICIARY'S LIFETIME. 1. The Trustee shall pay to or apply for the benefit of Grantor's grandchild, Alessandra Victoria Zimmerman, born November 1,2006 (Social Security Number ) hereinafter referred to as "Beneficiary," at such times as the Trustee determines as much of the net income and, if income shall be insufficient therefor, as much of the principal, as the Trustee, in its sole discretion both as to income and principal, shall deem necessary for the Beneficiary's health, maintenance, support and education (including vocational, secondary, undergraduate and graduate studies and professional training); provided, however, that before making any such payments of principal to the Beneficiary, the Trustee shall take into account other property and income available to the Beneficiary, and in so doing the decision of the Trustee as to the amount of principal so used and the extent to which other resources are considered shall be conclusive as to all parties in interest. Any income not expended may be accumulated and added to principal. Exhibit nAn SECOND: DISPOSITIVE PROVISIONS UPON BENEFICIARY'S DEATH In the event the Beneficiary dies before the entire principal ofthe Trust has been with- drawn or distributed, the then-remaining principal, together with any accumulated or undistribu- ted income of the Trust (as the case may be), shall be distributed to or for the benefit of such person or persons or entity or entities (including the Beneficiary's estate, the Beneficiary's creditors or the creditors of the Beneficiary's estate) in such amounts or proportions and in such lawful interests or estates, whether absolute or in trust, as the Beneficiary may direct by the Beneficiary's Last Will, provided such Last Will contains a specific reference to this general power of appointment, or in default of such appointment, or to the extent it is not effectively exercised, then, to the Beneficiary's executor or administrator. THIRD: TERMINATION OF TRUST Notwithstanding any other provisions hereof, the Trustee may, in its sole discretion, at any time terminate the trust created herein if the amount thereof would make the continuation of any such trust impractical. Upon such termination, the Trustee shall pay the principal and any accumulated or undistributed income to the Beneficiary. FOURTH: MINORITY AND DISABILITY PROVISIONS Unless otherwise provided for herein, any income or principal payable to any beneficiary who may be then a minor (for all purposes of this Trust, a minor shall be deemed to be a person who has not attained twenty-one (21) years) or, who may then be, in the opinion of the Trustee, mentally or physically disabled, shall be held in a separate trust by the Trustee during such minority or disability unless the trust share is sooner terminated as otherwise provided herein; said net income and/or principal may be accumulated or expended for the health, maintenance, {L0264903.l } 2 support and education (including vocational, secondary, undergraduate and graduate studies and professional training) of such beneficiary, as the Trustee, in its sole discretion, may determine. In distributing income and/or principal for such purposes, the Trustee may, in its discretion, apply the same directly without intervention of a guardian, or pay the same to any person having care or control of the beneficiary, or with whom the beneficiary resides. A receipt for such payment shall constitute a full and complete release of the Trustee for such distributions. FIFTH: PROTECTIVE PROVISION All principal and income shall, until actual distribution to a beneficiary, be free of the debts, contracts, alienations, torts and anticipations of any beneficiary, and the same shall not be liable to any levy, attachment, execution or sequestration while in the possession ofthe Trustee. SIXTH: INSURANCE POLICIES 1. The Trustee shall not be under any obligation to pay premiums on insurance policies held hereunder, if any, and shall have no responsibility to see that such policies are kept in force. 2. No life insurance company shall be responsible to see to the execution or performance of any trust created herein or to the application of any insurance proceeds paid to any such trust. 3. The Trustee may, without incurring liability, compromise and settle any questions relating to any insurance policy upon such terms as it deems wise. The Trustee need not institute litigation to collect the proceeds of any policy unless it is reasonably indemnified for costs, counsel fees and other expenses of such litigation. {L0264903.l } 3 SEVENTH: POWERS OF TRUSTEE In addition to the powers hereinbefore provided and those given by law, the Trustee, and any additional or successor Trustee, without any order of court and in its sole discretion, may: 1. Hold and retain the property now or hereafter comprising a part of this Trust, for such length of time as in its sole discretion it may deem wise, or sell any part thereof, without liability of any kind by reason of such retention or sale and invest and reinvest, alter, vary and change investments from time to time, in such manner and in such property, real, personal or otherwise, including any common or diversified trust funds maintained by, or stock of, any bank or trust company or any holding company or affiliate thereof, as the Trustee may deem prudent, without being confined to what are known as legal investments under the laws of any state or jurisdiction and without regard to whether such property does or does not represent an overconcentration in one investment; 2. Repair, alter, improve or lease, for any period of time (even for more than five (5) years) any property and give options for leases; 3. Make distribution hereunder either in cash or in kind or partly in each, and cause any share to be composed of property different in kind from any other shares, without regard to the basis of such property; 4. Purchase investments at a premium; 5. Vote in person, or by proxy, all stocks or other securities held; 6. Exercise any rights or warrants to subscribe for stocks or bonds or other allotments received by reason of securities held, or sell them for such prices as it may deem best; 7. Deposit, surrender or exchange stocks or pay any assessments in connection with {L0264903.1 } 4 any reorganization or merger or similar proceedings as it may deem best; 8. Exercise any option, right or privilege granted in any insurance policy; 9. Sell any real or personal property at public or private sale to any person or entity, or give options therefor for cash or credit, without liability on the part of the purchaser to see to the application of the purchase money; provided, however, that no sale hereunder shall be made at a price less than that which the Trustee acting in good faith shall consider to represent adequate and full consideration; 10. Borrow money from any source, including any Trustee, mortgage or pledge any property; 11. To merge any trust created hereunder with any other trust or trusts created by the Grantor or by other person(s) under Will or Trust Agreement, if the terms of such trusts are then substantially similar and held for the primary benefit of the same person(s); 12. Compromise claims; 13. Register securities in the name of a nominee in such manner that title shall pass by delivery; 14. Employ attorneys, investment counsel, accountants and agents in connection with the discharge of its duties, and determine and pay to them reasonable compensation; 15. To disclaim any interest, in whole or in part, of which my Trustee, may be the beneficiary, devisee, or legatee, by executing an appropriate instrument (in accordance with section 2518 of the Internal Revenue Code of 1986, as amended and supplemented, or such similar section as may then be in effect); 16. Add to the principal of any trust created hereunder any property received from any {L0264903.l } 5 person by Deed, Will or in any other manner; 17. In the exercise of its discretion with respect to the use of principal for any beneficiary, the Trustee may take into account other property and income available to such beneficiary; in so doing, the Trustee may conclusively rely on written representations made to it by such beneficiary, and the judgment of the Trustee as to the amount of principal so used and the extent to which other resources are considered shall be conclusive as to all parties in interest; 18. Anything herein to the contrary not withstanding, no individual Trustee hereunder shall make or participate in any decision required for the discretionary termination of any trust hereunder or to authorize the discretionary payment of income or principal in cases where such terminated trust or such principal or income (as the case may be) would be distributable to or for the benefit of himself or herself; 19. Exercise all power, authority and discretion given by this Trust after termination of any trust created herein until the same is fully distributed; 20. Accept property or not, in the Trustee's sole discretion, by bequest or lifetime transfer from any person, estate or trust, subject to the payment of, or liability for, state and/or federal gift, estate, transfer, succession, inheritance or other death taxes, including any interest or penalties thereon, and sign any required consent or acknowledgment of liability for such taxes and/or lien against such property; 21. Anything hereinbefore to the contrary notwithstanding, the Trustee shall not exercise any power, authority or discretion if the exercise of such power, authority or discretion would cause the assets of this trust to be included in the "gross estate" of Grantor and/or Trustee, as such term is defined in the Code. {L0264903.l } 6 EIGHTH: APPOINTMENT OF SUCCESSOR TRUSTEES 1. If, during the term of this Trust, the Trustee shall be unable or unwilling to serve, then, and in that event, ALLISON LYNN ZIMMERMAN currently of Dauphin County, Pennsylvania, shall serve as Trustee. 2. Any Trustee acting hereunder may resign in writing at any time without court approval. NINTH: BENEFICIARY'S RIGHT TO WITHDRAW 1. Anything to the contrary in this Agreement notwithstanding, Beneficiary, during the Beneficiary's lifetime, shall have the absolute right (anything to the contrary appearing in Item THIRD hereof notwithstanding), exercisable in Beneficiary's sole discretion, to withdraw during each calendar year in which an addition or additions are made to this Trust, an aggregate amount equal to the lesser ofthe amount of the annual additions to this Trust up to the date of such withdrawal or the amount of the annual gift tax exclusion available under the federal gift tax law on the first day of the calendar year during which such addition or additions are made to the Trust multiplied by the number of donors making addition(s) to this Trust during such calendar year, and such right of withdrawal shall be non-cumulative from year to year. On the date this Trust is created, the annual gift tax exclusion is Twelve Thousand Dollars ($12,000) per donee, but the Grantor intends that any subsequent increases or decreases in this amount shall be reflected in the limit on the Beneficiary's annual withdrawals under this paragraph. 2. The Trustee shall notify the Beneficiary of any transfer or other contribution to the Trust, and of the donor(s) thereof, as soon as is practical after the contribution or transfer has been made but not later than December 31 of the year in which the contribution or transfer has (L0264903.1) 7 been made. 3. If Beneficiary shall be unable to exercise this withdrawal power because of a legal disability, including minority, her legally authorized personal representative, including (but not limited to) a guardian, committee, or conservator, may make the demand for withdrawal on Beneficiary's behalf, and if there be no such legally authorized personal representative, the Trustee shall designate an appropriate adult individual who may make the demand on Beneficiary's behalf. However, in no event may the Grantor make the demand for Beneficiary, regardless of his relationship to Beneficiary. 4 All withdrawals shall be made by written demand signed by the Beneficiary and delivered to the Trustee not more than thirty (30) days after the date of the Trustee's notification to the Beneficiary of any transfer or other contribution to the Trust. Withdrawals shall be paid by the Trustee not more than sixty (60) days after the date of such written demand. For purposes of this special right of withdrawal, assets originally transferred to this Trust shall be deemed to be an addition in the year in which the transfer occurs. 5. Such rights of withdrawal shall constitute a first charge against the principal of this Trust and during the continuance of this Trust shall take precedence over all other dis- tributions and all other beneficial interests hereunder. 6. In creating this power of withdrawal, it is the intention of the Grantor to create an annual non-cumulative power of invasion which will qualify any transfer of property hereto as a transfer of a present interest under Section 2503(b) of the Internal Revenue Code of 1986, as amended and supplemented (the "Code"), and which will not be treated as a release of such a power as that term is defined in Section 25l4( e) of the Code. {L0264903.1 } 8 7. In creating this Trust, it is the intention of the Grantor to create a trust meeting the requirements of Section 2642(c) of the Code and exempt from federal generation-skipping transfer tax. TENTH: WAIVER OF BOND Grantor directs that the Trustee and any alternates or successors thereto shall not be required to file a bond to secure the faithful performance of the duties of their office in any juris- diction. ELEVENTH: IRREVOCABILITY This Trust shall be irrevocable, and the Grantor hereby expressly waives all rights and powers to alter, amend, revoke or terminate the Trust or any of its terms in whole or in part. Grantor hereby renounces any interest, either vested or contingent, including any reversionary interest or possibility of reverter, in the income or principal of this Trust. TWELFTH: MISCELLANEOUS 1. Wherever the words "child," "children," or "issue" are used in this instrument, they shall include those both naturally born and legally adopted. 2. Throughout this Agreement of Trust, nouns, pronouns and verbs shall be construed as masculine, feminine, neuter, singular or plural, whichever shall be applicable. 3. The Trustee, and any successors, shall receive reasonable compensation for services rendered in such capacity and shall be reimbursed for reasonable and necessary expenses incurred in fulfilling her duties as Trustee. {L0264903.1 } 9 o IN WITNESS WHEREOF, the parties hereto have executed this Agreement the day and year first above written. WITNESS: ;J;~IP:ba JVf~P- &/f~~EAL) LEROY . 1M , Grantor Trustee acknowledges receipt of the property transferred to her as described on Schedule A to this Agreement, and covenants that she will faithfully discharge her duties as Trustee under this Agreement. f!7~,f;t:4 !I~ ~~ ~ - (SEAL) MARK J. ZI ERM , Trustee {L0264903.l } 10 COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF DAUPHIN On the ~ I ~;. day of January, 2007, before me, the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared the above-named LEROY S. ZIMMERMAN, and in due form of law acknowledged the foregoing Agreement of Trust to be his voluntary act and deed for the purposes expressed therein. WITNESS my hand and notarial seal the day and year aforesaid. ~~ l1) . No Pu. ~Q.~~J COMMONWEALTH OF PENNSYLVANIA Notarial Seal Judy M. Cadenhead, Notary Public City Of Harrisburg, Dauphin County My Commission Expires June 18, 2009 Member, Pennsylvania Association 01 Notaries {L0264903.1 } II COMMONWEALTH OF PENNSYLVANIA SS. COUNTY OF DAUPHIN ~t On the 'b \ day of January, 2007, before me, the subscriber, a notary public in and for the Commonwealth of Pennsylvania, personally appeared the above-named MARK J. ZIMMERMAN, and in due form of law acknowledged the foregoing Agreement of Trust to be her voluntary act and deed for the purposes expressed therein. WITNESS my hand and notarial seal the day and year aforesaid. ~ \f\ . ~C\.~ No P COMMONWEALTH OF PENNSYLVANIA Notarial Seal Judy M. Cadenhead, Notary Public City Of Harrisburg, Dauphin County My Cormlission Expires June 18, 2009 Member. Pennsylvania Association of Notaries {L0264903.1} 12 SCHEDULE A Item 1. Description Cash Gift Value {L0264903.l } 13 IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA In Re: Alessandra Victoria Zimmerman No. Irrevocable Trust Under Agreement Dated January 31 , 2007 ACCEPTANCE OF CORPORATE CO-TRUSTEE I, MICHAEL D. LUTZ, Vice President of Hershey Trust Company, do hereby consent on behalf of the Hershey Trust Company to the appointment of Hershey Trust Company as Corporate Co-Trustee of the above-captioned Trust. ~C\o~il. ~ /.00'1 .. Date ~h~ Micha I D. Lutz, Vi~resident Exhibit "B" IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA InRe: Alessandra Victoria Zimmerman No. Irrevocable Trust Under Agreement Dated January 31, 2007 CONSENT AND JOINDER I, LEROY S. ZIMMERMAN, Esquire, as Settlor, have read the within Petition and hereby consent and join in the prayer thereof. tP~4>t~7 Date t/J~ 'V) LeRoy S. . merman, Esquire Exhibit "C"