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HomeMy WebLinkAbout10-10-08 IN RE: THE ESTATE OF EDNA E. STARNER PENNSYLVANIA IN THE COURT OF COMMON PLEAS „~, CUMBERLAND COUNTY, ~-~ ` =~ n ;:-~ . ` ~~~ :•~ ORPHANS' COURT DIVISION - ~ -'. ~~ No. 21-06-0195 '.:~, _.~ --, -.:~ -_ ~~,~ ~~ .. PETITION TO APPOINT SUCCESSOR TRUSTEE s''' c:~ 1. Petitioner, Ross E. Starner, is an adult individual residing at 815 Torway Road, Gardners, Pennsylvania. 2. Petitioner, Dorale J. Frykman, formerly known as Dorale J. Richards, is an adult individual residing at 903 Goodyear Road, Gardners, Pennsylvania. 3. Petitioner, Lester F. Starner, is an adult individual residing at 75 Frost Road, Gardners, Pennsylvania. 4. On February 15, 2006, Edna E. Starner died, leaving a last will and testament that was duly admitted to probate and proved and allowed by the orphans' court of Cumberland County, Pennsylvania on March 3, 2006 to file number 21-06-0195. 5. Edna E. Starner, by said last will and testament, gave certain property in trust for the use and benefit of Lester F. Starner, Ross E. Starner and Dorale J. Frykman. 6. M&T Bank was appointed Trustee pursuant to paragraph 7 of decedent's last will and testament. M&T Bank accepted the appointment of Trustee and has been serving as Trustee since 2006. J -,~_~ __7 ~,, ~ _. , .~ rt 7. At the request of Petitioners, M&T Bank has agreed to resign as Trustee. 8. Both parties hereby agree that M&T Bank will receive a fee of $3,000 to cover the cost of time and expense involved in this negotiation since the death of Edna Starner. 9. Petitioners are in favor of appointing Marcus A. McKnight, III as Substitute Trustee of the Starner Family Trust. 10. Marcus A. McKnight, III is willing and able to act as Successor Trustee and to give bond according to law for the faithful discharge of his duties as such Successor Trustee. 11. The names and addresses of all other persons, known to Petitioners who are interested in the trust and in this petition are as follows: (a) M&T Investment Group, One West High Street, Carlisle, PA 17013; (b) Marcus A. McKnight, III, Irwin & McKnight, 60 West Pomfret Street, Carlisle, PA 17013; (c) Ross E. Starner, 815 Torway Road, Gardners, PA 17324; (d) Dorale J. Frykman, 903 Goodyear Road, Gardners, PA 17324; and (e) Lester F. Starner, 75 Frost Road, Gardners, PA 17324. Wherefore, petitioners request that Marcus A. McKnight, III be appointed Successor Trustee of the Starner Family Trust created by the last will and testament of Edna E. Starner, in place of, and with all the powers and duties of M&T Bank. Respectfully submitted, IRWIN & McKNIG:HT By: ~~\ Marcu A c fight, III, E Supre Court I.D. #: 25476 60 est Pomfret Street Carlis , (717)249-2353 Attorney for the Plaintiff Date: VERIFICATION The foregoing document is based upon information which has been gathered by our " counsel and ourselves in the preparation of this action. We have read the statements made in this document and they are true and correct to the best of our knowledge, information and belief. We understand that false statements herein made are subject to the penalties of 18 Pa.C.S.A. Section 4904, relating to unsworn falsification to authorities. E. STARNER DORALE .FRY A ~ ~a LESTER F. STARNER Date: %+~-' I D ~5 LAST WILL AND TESTAMENT I, EDNA E. STARNER, of 75 Frost Road, Gardners, South Middleton Township, Cumberland County, Pennsylvania, being of sound mind, disposing memory and full legal age, do hereby make, publish and declare this instrument to be my Last Will and Testament, hereby expressly revoking all Wills and Codicils heretofore made by me. ONE: I direct my Executor, as the case may be, to pay all of my debts, funeral and administrative expenses as soon as may be done conveniently after my decease. Furthermore, I direct that all state, inheritance, succession and other death taxes imposed or payable by reason of my death and all interest and penalties thereon with respect to all property composing of my gross estate for death tax purposes, whether or not such property passes under this Will, shall be paid by the Executor of my estate. TWO: My Executor, as the case may be, may, at his or its discretion, compromise claims, borrow money, retain property for such length of time as he or she may deem proper; lease and sell property for such prices, on such terms, at public or private sales, as he or she may deem proper; and invest estate property and income without restriction to legal investments unless otherwise provided hereunder. I authorize and empower my Executor or Executrix to sell any realty and/or personalty owned by me at my death and not specifically devised or bequeathed herein, at public or private sale or sales and to give good and sufficient deeds and/or bills of sale therefor, in fee simple, as I could do if living. My Executor or Executrix is authorized and empowered to engage in any business in which I may be engaged at my death, for such period of time after my death as seems expedient to said Executor or Executrix. THREE. I hereby give, devise and bequeath all of my estate of every nature and wherever situate to be distributed IN TRUST, for my spouse, LESTER F. STARNER, subject to the following provisions: A. The estate shall be divided by the Trustee into two separate trusts, hereinafter referred to as Trust A (the Marital Trust), and Trust B (the Family Trust). B. Trust A, the Marital Trust, shall consist of all of my assets other than those allocated to Trust B, the Family Trust. C. Trust B, the Family Trust, shall consist of assets equal in value to the maximum amount, if any, that are necessary to permit my estate to use in full any federal estate tax unified credit which has not been claimed for distribution during my lifetime after considering any adjusted taxable gifts and bequests by Will which do not qualify for the marital deduction and all charges to principal of the estate which are not deducted in computation of the federal estate tax of my estate; provided ,however, that the allocation of the Family Trust shall be satisfied with assets as of the date of allocation or distribution; and provided further that any assets which do not qualify for the federal estate marital deduction shall be used first to satisfy the allocation to this Family Trust. D. From the Marital Trust, the Trustee shall pay all of the net income to my spouse, LESTER F. STARNER, in monthly payments. My spause also- has the right to receive from the Trustee all or a portion of the principal from the Marital Trust and to change the beneficiaries of this Marital Trust in my spouse's discretion. At the death of my spouse, the 2 Trustee shall distribute the remaining principal and accumulated income of the Marital Trust in equal shares, per stirpes, to ROSS E. STARKER and DORALE J. RICHARDS, if living. If one of the above dies with living issue, the share of said deceased individual shall be distributed in equal shares to the living issue of the individual named above who has predeceased me. E. From the Family Trust, the Trustee shall pay all of the net income to my spouse, LESTER F. STARKER, in monthly payments. The Trustee may distribute to my spouse such amounts from the principal of the Family Trust as provided hereunder, up to the whole thereof, as the Trustee, in his or her discretion, shall deem necessary or advisable to provide for the care, maintenance and support of my spouse, so as to support my spouse in my spouse's accustomed manner of living, provided, however, the Trustee shall consider any other sources of income available to my spouse when making payment hereunder. The Trustee shall, when requested by my spouse, pay five (5%) percent of the principal or $5,000.00, whichever amount is greater, annually to my spouse during my spouse's lifetime, but in no way shall the Trustee distribute more of the principal of this Family Trust to my spouse than in the above amounts. This limited right to make withdrawals from the principal of the trust estate is noncumulative, so that an amount which might have been withdrawn during a particular year may not be withdrawn in any subsequent year. Upon the death of my spouse, the remaining accumulated income and principal of the Family Trust shall be distributed in equal shares to ROSS E. STARKER and DORALE J. RICHARDS, per stirpes. If one of the above dies with living issue, the share of said deceased individual shall be distributed in equal shares to the living issue of the individual named above who has predeceased me. 3 Upon the creation of this Trust, the Trustee shall divide this trust principal into individual shares in the name of each heir or beneficiary in the amount equal to the amount that said heir or beneficiary inherited hereunder. The Trustee, as well as my representative, is hereby authorized to retain, unconverted, any property, real or personal, that I may own at my death and shall be under no duty to convert it into legal investments. The Trustee shall have the power and authority to sell, transfer, convey, invest and reinvest and to pay over the net income of the trust property, to or for the use of said heir or beneficiary, or to accumulate it in the sole discretion of the Trustee. The Trustee is also authorized and empowered to pay over to, or for the use and benefit of my heirs or beneficiaries such portion of or all of the principal of the trust estate as in the Trustee's sole discretion seems proper for their support, maintenance, education, or medical care. My primary object is to insure the support, maintenance, education and medical care of my heirs and beneficiaries. However, notwithstanding the above, the Trustee shall have the sole discretion throughout the duration of this trust in which to distribute any of the trust principal or income for the benefit of any of my heirs or beneficiaries for any such purpose as the Trustee deems reasonable under the circumstances such as but not limited to the purchase of real property, tuition for further education or any other purpose which would in the Trustee's sole discretion advance the best interest of said heir or beneficiary. G. In the event that my spouse predeceases me, dies simultaneously or I choose for whatever reason during my lifetime to withdraw all of the assets from the Marital Trust set forth in my spouse's Last Will and Testament or if I have accumulated any other assets which are not being held in trust hereunder or under any written trust document executed by me during my 4 lifetime, then in that event, I hereby give, devise and bequeath all the rest, remainder and residue of my estate under this Paragraph Three to be distributed in equal shares to ROSS E. STARNER and DORALE J. RICHARDS. If one of the above dies without living issue, the share of said deceased child shall be distributed in equal shares to the issue livmg at that time of my decease. FOUR. I make the following provisions pertaining to generation-skipping transfers: A. My Executor or Executrix, as the case may be, may allocate any part of my eneration-skipping tax exemption which I have not irrevocably utilized during my lifetime in g such manner as my Executor or Executrix shall determine. B. For purposes of fully utilizing my generation-skipping tax exemption if my s ouse survives me, my Executor may make the election provided for in Section 2652(a)(3) of p the Internal Revenue Code of 1986, as amended (the "Internal Revenue Code") to the extent my Executor or Executrix has elected to treat all or part of the property passing under this will or under any deed of trust of which I am the settlor as "qualified terminable interest property" under Section 2U56(b)(7) of the Internal Revenue Code. C. My Executor may elect not to have the deemed allocation provisions of Section 2632(b) of the Internal Revenue Code apply to transfers made by me during my lifetime. D. To the extent that the allocation of any generation-skipping tax exemption would not result in a particular trust being completely exempt from the generation-skipping tax, the Trustee shall separate such trust into two trusts, one of which is exempt from and one of 5 which is fully subject tot the generation-skipping tax. In the case of a trust which has not received assets at the time the exemption is allocated, the separation shall occur prior to any funding of the trust. A trust which is completely exempt from the generation-skipping tax shall be referred to as an "exempt trust" and a trust which is subject in any part to the generation- skipping tax shall be referred to as a "non-exempt trust". E. If the Trustee separates a trust into an exempt trust and anon-exempt trust under the immediately preceding paragraph: (1) Any person who has a power of appointment with respect to that trust may exercise such power differently as between the exempt trust and the non-exempt trust. (2) The percentage or fraction of principal that a beneficiary may withdraw shall be calculated with respect to the total principal held in both the exempt and non- exempt trusts. However, so long as there is any principal held in the non-exempt trust, to the maximum extent possible any withdrawal shall be paid from the non-exempt trust. (3) If the Trustee has the discretionary power to distribute income of a trust among "skip persons" and "non-skip persons" as defined in Section 2613(b) of the Internal Revenue Code, the Trustee may exercise such power differently as between the exempt trust and the non-exempt trust. F. ~ m~~g any distributions hereunder for the various beneficiaries my fiduciaries may allocate among such distributions assets which are exempt from generation- skipping tax equally or pro rata or on such other basis as they shall. in their sole and absolute discretion determine, taking into account possible needs of beneficiaries for distributions of principal, possible appreciation in the value of trust assets during the lifetimes of the beneficiaries or such other factors as the fiduciaries consider significant. 6 G. The Trustee may combine into a single trust two exempt trusts for the benefit of the same beneficiary; similarly, the Trustee may combine non-exempt trusts for the same beneficiary. H. No power to expend principal of an exempt trust for a beneficiary who is a "non-skip person" as defined in Section 2613(b) of the Internal Revenue Code may be exercised by the Trustee so long as there is any principal held in anon-exempt trust and in which the trustee has a similar power to expend principal for such beneficiary. I. In addition to all other powers set forth in my Will, if at the death of a beneficiary other than my spouse, including a person who becomes a beneficiary pursuant to the exercise of a power of appointment under my will, there is principal held in anon-exempt trust for that beneficiary and if in the absence of this power of appointment there would be a taxable termination with respect to such trust as defined in Section 2612 of the Internal Revenue Code, such beneficiary shall have the power by will containing a specific reference to this power of appointment to appoint any part or all of such principal outright to any one or more of his or her creditors and the creditors of his or her estate. Upon the beneficiary's death, to the extent he or she fails to exercise effectively such power of appointment, the Trustee shall pay to the beneficiary's estate or to the tax authorities an amount equal to any increase in estate, inheritance and other death taxes, and interest and penalties thereon, payable because of the inclusion of the unappointed principal in the beneficiary's estate for tax purposes. The remaining unappointed principal shall be distributed in accordance with the terms of the trust. 7 FIVE. The Trustee, as well as my Executor, shall have the following powers, in addition to those vested in it by law, for my property held for the benefit of my beneficiaries, whether income or principal, exercisable without court approval and effective until the distribution of all property under the terms of the trusts set forth in Paragraph Three or Paragraph Four above: The Trustee, at its discretion, may compromise claims, borrow money or retain property for such length of time as it may deem proper, sell lease, pledge, mortgage, transfer, exchange, convert or otherwise dispose of or grant option of all or any portion of trust property for such prices and on such terms in public or private transactions as it may deem proper; and invest trust property and income without restrictions to legal investments. The determination of the Trustee with respect to the advisability of making payments out of the income or principal to any heir or beneficiary inheriting hereunder shall be conclusive and binding on all persons howsoever interested in the respective trust. Further, the Trustee shall be authorized to receive additions to the respective trust of any kind or any property whatsoever from sources other than my estate and at any time in the sole discretion of the Trustee. SIX. I hereby nominate and appoint MARCUS A. McKNIGHT, III, to serve as Executor of this my Last Will and Testament. SEVEN. I hereby nominate and appoint M&T BANK, N.A., or the successors of it, to serve as to serve as Trustee of any trust(s) created herein. EIGHT. No Executor, or Trustee acting hereunder shall be required to post bond or enter security in this or any other jurisdiction. 8 NINE. No person or persons shall benefit hereunder unless such beneficiary shall survive me for a period of at least sixty (60) days. TEN. No beneficiary may assign or anticipate his or her interest in any income or principal held or distributable hereunder; and no beneficiary's creditors may attach or otherwise reach any such interest. ELEVEN. If any person or institution entitled to share in any distribution under the terms of this my Last Will and Testament becomes an adverse party in any proceeding to contest the probate of this Last Will and Testament, such person or institution shall forfeit his, her or its entire interest inherited hereunder and all provisions in favor of such person or institution shall be declared void and of no effect. The share of such person or institution so forfeited shall be distributed as part of the residue pursuant to Paragraph Three G. hereof except that if such person or institution is entitled to share in the said residue, that interest shall be distributed proportionately to the other residuary distributees. TWELVE. The validity and administration of any trust established hereunder and any question or disputes relating to the construction or interpretation of any said trusts shall be governed and construed in accordance with the laws of the Commonwealth of Pennsylvania. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 10th day of February 2003. ~~ p~.(SEAL) ~. EDNA E. STARKER 9 Signed, sealed, published and declared by the above-named person as and for a Last Will and Testament, in our presence, who at said person's request, in said person's presence and in the presence of each other have hereunto set our names as subscribing witnesses. 1 ~~~ ~~~~ 10 ACKNOWLEDGMENT AND AFFIDAVIT WE, EDNA E. STARKER, KAMELA S. CORNMAN and SHARON L. SCHWALM, the testatrix and witnesses respectively, whose names are signed to the foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the testatrix signed and executed the instrument as her last will and that she had signed willingly, and that she executed it as her free and voluntary act for the purpose herein expressed, and that each of the witnesses, in the presence and hearing of the testatrix, signed the will as a witness and that to the best of their knowledge the testatrix was, at that time, eighteen years of age or older, of sound mind and under no constraint or undue influence. r` ~ ~i. ~ ;: - - . _ EDNA E. STARKER - ~ ~~; ._ -- ~~ - _- . ` ` ` , - - LA S. CORNMAN -- - ~ '_ -, ; '~ ~ - - -- - ~~ R ~ ,~~ nth- ~;.~~~ ' ti~,s~;~~ SHARON L. SCHWALM COMMONWEALTH OF PENNSYLVANIA ; SS: COUNTY OF CUMBERLAND Subscribed, sworn to and acknowledged before me by EDNA S ' CORNMAN and testatrix herein, and subscribed and sworn to ; p~fore me by KAME SHARON L. SCHWALM, witnesses, this ~_ day of February 2 3 ~ / ! n ~ Notariai Seal r Martha L. Noei, Notary Pubtic Carlisle Boro, Cumberland County My Commission Expires Sept. 18, 2003 '~Jlenb°r °snrsvlvaNa Association of Notaries I~1 M&T Investment Group April 30, 2008 Marcus A. McKnight, III, Esquire Irwin & McKnight 60 West Pomfret Street Carlisle, PA 17013 RE: Estate of Edna E. Starner Dear Marcus: Private Client Services P.O. BOX 220 ONE WEST HIGH STREET CARLISLE, PA 17013 717-240-4504 Toll Free 1-800-822-21 SS As per our prior communications, the trust established under Mrs. Starner's Will does not provide for a change of trustee. Also, the Will does not provide for the trustee to delegate fiduciary or investment powers to a third party. However, based on the family's strong desire to have Don DeMuth continue to manage the assets, M&T Bank is willing to renounce as testamentary trustee. Please prepare a Petition requesting that a new trustee be appointed. M&T Bank will consent to that Petition. Our fee to cover the cost of time and expense involved in this negotiation since Mrs. Starner's date of death will be $3,000. This is substantially less than our termination fee that is 2% of the market value of the trust. If you have any questions, please feel free to contact me. Very truly yours, ~,~,.c,- J e F. Burke Vice President Manufacturers and Traders Trust Company Private Client Services