HomeMy WebLinkAbout04-06-09 (2)Johnson, Duffie, Stewart 8~ Weidner b
By: Elizabeth D. Snover ~ ~ -~ , _i'
Attorney I.D. No. 200997 rn ~ ~' `;
301 Market Street
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P. O. Box 109
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Lemoyne, Pennsylvania 17043-0109 0 ~ ..~ ~~~= f ?
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IN RE: IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
ESTATE OF JOSEPH SAMUEL LOTZ,
ORPHANS' COURT DIVISION
Deceased
No. o~ - D00
Number 21-08-1000
PETITION OF SURVIVING WIDOW TO EXTEND TIME
FOR ELECTION TO TAKE AGAINST WILL
PURSUANT TO 20 Pa. C.S.A. 6 2201(b)
TO THE HONORABLE JUDGES OF THE ORPHANS' COURT DIVISION:
Petitioner, Shirley Bennett Lotz, is petitioning to extend time for election to take
against her husband's Will under the provisions of Section 2210, Probate, Estate and
Fiduciary Code, and respectfully represents that:
1. Joseph Samuel Lotz (also known as Joseph S. Lotz) died on October 2,
2008, residing at 1001 Rupley Avenue, Apartment 101, Camp Hill (Wormleysburg
Borough), Cumberland County, Pennsylvania, leaving a Last Will and Testament, dated
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February 27, 1995, a copy of which is attached hereto, marked Exhibit A and made part
hereof.
2. The Last Will and Testament of Joseph S. Lotz was admitted to probate by
the Register of Wills of Cumberland County and letters testamentary thereon issued to
Dyan L. Yingst, decedent's daughter, as designated Executrix on October 7, 2008.
3. The Last Will and Testament of Decedent provides, inter alia, that the
residuary estate is to be divided equally among Decedent's children, Dyan L. Yingst
(Executrix), residing 801 Pheasant Road, Hanrisburg, Pennsylvania 17112, Linda A. Lotz,
residing at 1900 Frontage Road, Building 1, Suite 1808, Cherry Hill, New Jersey 08034,
and David W. Lotz, residing at 398 Sweetbriar Drive, Harrisburg, Pennsylvania 17111.
4. Petitioner, Shirley Bennett Lotz, is the surviving widow of Joseph Samuel
Lotz and resides at 1001 Rupley Avenue, Apartment 101, Camp Hill, Pennsylvania 17011.
5. Petitioner's right to elect against her husband's Will under Chapter 22,
Probate, Estate and Fiduciary Code, will expire on April 7, 2009, as provided in Section
2210(b).
6. Petitioner is unable to make a decision concerning possible election to take
against her husband's Will until the following information is available to her:
A. Information concerning the total probate assets and total taxable
assets of decedent's estate. To date, no such information has been made
available to Petitioner and Executrix has not filed the inventory.
B. Information concerning Decedent's debts and information
concerning administrative expenses, including the Executrix' commission. To date,
none of this information has yet been made available to Petitioner.
C. A determination as to whether the First Codicil of the Will of
Joseph S. Lotz, dated May 10, 2002, will be produced by Executrix and probated.
Petitioner has or will file in the Office of the Register of Wills of Cumberland
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County, Pennsylvania a Petition to Compel Production of Decedent's First Codicil.
A copy of the First Codicil of the Will of Joseph S. Lotz, dated May 10, 2002, is
attached hereto, marked Exhibit B and made part hereof.
D. If the First Codicil of the Will of Joseph S. Lotz is produced and
probated, Petitioner intends to assert rights pursuant to Paragraph 5, Post-Nuptial
Agreement, dated August 2, 2006, between Petitioner and Decedent, a copy of
which is attached hereto, marked Exhibit C and made part hereof.
E. If the Executrix produces but refuses to probate the First Codicil it is
anticipated that Petitioner will pursue her right to appeal the admission of the Will,
without the Codicil, to probate pursuant to 20 Pa. C.S.A. § 908.
WHEREFORE, Petitioner requests the following:
A. That each of the above heirs, including Dyan L. Yingst in her
capacity as Executrix, be served by Certified Mail, Return Receipt Requested, with
this Petition and after ten (10) days if no objection is made thereto, that the Court
enter a decree pursuant to Local Rule 12.3-2 extending the time limitation of
Petitioner's decision to elect or not to elect against her deceased husband's Will for
a period of not less than four (4) months after Petitioner receives all the information
requested pursuant to Paragraph 5-A and Paragraph 5-B of this Petition.
Respectfully submitted,
JOHNSON, DUFFIE, STEWART & WEIDNER
Elizabeth . Snover
Attorney I.D. No. 200997
301 Market Street
P.O. Box 109
Lemoyne, PA 17043-0109
Telephone (717) 761-4540
Dated: ~ rh ~'
360727
Attorney for Petitioner, Shirley Bennett Lotz,
Surviving Widow
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VERIFICATION
I, Shirley Bennett Lotz, Petitioner, verify that the statements made in this Petition of
Surviving Widow to Extend Time for Election to Take Against Will are true and correct to the
best of my personal knowledge, or information and belief. I understand that false statements
herein are made subject to the penalties of 18 Pa. C.S. §4904 relating to unsworn falsification to
authorities; I verify that all the statements made in the foregoing are true and correct and that
false statements may subject me to the penalties of 18 Pa. C.S. §4804.
Shirley Bennett Lotz
EXHIBIT A
EXHIBIT A
LAST WILL AND TESTAMENT,
DATED FEBRUARY 27, 1995
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LAST WILL AND TESTAMENT
I, JOSEPH S. LOTZ, of 2?? N~~rth 40th Street, Harrisburg,
County O-~ Dal:ipillli, ~Ni7Tl~ylv'clilla, do rlereby Taaiie, pu%~115h, ~a.iid
declare this to be my LAST WILL 1~ND TESTAMENT, revoking any and
all prior_ wills and codicils, in manner followinc~, that is to
say,
FIRST, that I direct that my Personal Representative shall
pay all of my just debts and funeral expenses as soon as this
shall be practicable.
SECOND, that upon my death I give, devise, and bequeath all
of my property, real, personal, and mixed, to be divided equally
among my children: DYAN M. YINGST, LINDA A. LOTZ, and DAVID W.
LOTZ, per capita; that is, if any of my children have predeceased
me, then I direct that the share of my predeceased child shall be
divided equally between my surviving children.
THIRD, that I hereby appcint my daughter DYAN M. YINGST as
the Executrix of my Estate. I direct that. my Personal
Representative shall not be required to post bor.~d in this or in
any other jurisdiction.
IN WITNESS WHEREOF, I have hereunto set my hand and seal
this 27th day of February, 1995.
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EXHIBIT B
FIRST CODICIL OF THE WILL OF
JOSEPH S. LOTZ,
DATED MAY 10, 2002
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FIRST CODICIL TO THE Te1ILL OF JOSEPH S. LOTZ
' DATED 27TH DAY OF FEBRIIARY, 1995
I, Joseph S. Lotz, a resident of Dauphin County,
Pennsylvania, declare this to be the first codicil to
my will dated the 27th day of February, 1995.
FIRST: I wish to revoke the section sequence
stated as First and reidentify as First Sectio.^.,
Part "A."
SECOND: I wish to insert a new item to be known
as First Section, Part B, and will take precedence over
the existing Second Section and all succeeding sections.
Upon my death I bequeath the sum of $50,000 (Fifty
Thousand Dollars) to my beloved wife, Shirley Bennett
Lotz, in accordance with the terms of our Pre-Marital
Agreement dated ~ ~ day of ~ o~.,~ ~c~o
These monies are to be rendered in full as soon as
possible after the First Section, Part A, is accomplished.
On the date written below, Joseph S. Lotz declared to
uj, the undersigned, that this instrument, consisting of
two pages, including this page and signed by us as
witnesses, was the first codicil to his will and re-
quest~d us to act as witnesses to it. He thereupon
signed this codicil in our presence, all of us being
present at the same time. We now, at his request, in
his presence, and in the presence of each other, sub-
scribe our names as witnesses, and declare we understand
this to be his will, and that to the best of our
knowledge the testator is competent to make a will, and
under no constraint or undue influence.
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We declare under penalty of perjury that the fore-
going is true and correct.
Witness's Signature
Witness's Signature
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NOTA AL SEAL Public
LOUIS J. LOBS. Notary
Camp FiU~ Boro, Cumberland Co ~~ 3
My Commission Expires Apr~~ t4.
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EXHIBIT C
EXHIBIT C
POST-NUPTIAL AGREEMENT,
DATED AUGUST 2, 2006
POST-NUPTIAL AGREEMENT
~~
This Post-Nuptial Agreement is made this ~ day of ~u G u ~•~
2006,by and between SHIRLEY BENNETT LOTZ of 1001 Rupley Road, Apt. 101, Camp Hill,
PA 17011, and JOSEPH SAMUEL LOTZ of the same address.
WITNESSETH
WHEREAS, SHIRLEY BENNETT LOTZ and JOSEPH SAMUEL LOTZ were
married on June 21, 2002, by The Reverend Richard Gordon at the Camp Hill Presbyterian Church;
and
WHEREAS, both SHIRLEY BENNETT LOTZ and JOSEPH SAMUEL LOTZ have
sufficient economic resources to care for their own material needs, and either are now, or have
previously, engaged in estate planning and have established estate plans that will provide for their
respective families and loved ones; and
WHEREAS, neither SHIRLEY BENNETT LOTZ nor JOSEPH SAMUEL LOTZ,
after fully considering all of the alternatives and options and with full knowledge of the effect and
import of their decisions, wish to change their existing estate plans; and
WHEREAS, their decision to join in marriage was based upon mutual love and
respect for the other person and was not motivated by, nor predicated upon, the anticipated financial
support of the other, but from a desire for a loving relationship, companionship and emotional
support; and
WHEREAS, the parties, having married, are entering into this Post-Nuptial
Agreement in order to evidence and give effect to their intent that neither shall, by virtue of the
marriage, acquire any interest in or rights to the property of the other and to relinquish certain rights
and to waive obligations for future support in the event that, after the marriage, the parties may
separate or divorce;
NOW, THEREFORE, in consideration of the premises and the mutual covenants,
agreements and releases herein contained and intending to be legally bound, the parties hereto do
hereby mutually covenant and agree as follows:
1. Waiver of Rights. Subject to the provisions of Paragraph 6 hereof, each of the parties
hereby waives, renounces and releases any and all right, claims of right, title, interest, election and
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demand whatsoever which he or she may, or but for this Agreement might acquire by reason of the
marriage, including but not limited to:
(a) Will. Any and all right, title, interest, election, claim and demand
whatsoever that he or she may hereafter have to take against any Will of the other and any
conveyance of assets by the other treated as a testamentary disposition for purposes of such spouse's
election and any claim under 20 Pa. C.S.A. §2507(3) and as the same may be amended in the future.
(b) Intestacy. Any and all right, title, interest, claim and demand
whatsoever that he or she may hereafter have to share or have any interest, distributive or otherwise,
in the property, whether real, personal, mixed or of any description whatsoever and wheresoever
situate, or estate of the other under the laws of intestacy or succession or inheritance or their
equivalent.
(c) Personal Representative. Any and all right, title, interest, claim and
demand whatsoever that he or she may hereafter have to administer the estate or effects of the other
or to claim appointment or to qualify as a personal representative of the other or any preference or
right to claim thereto.
(d) Community; Dower; Curtest'. Any and all. right, title, interest, claim
and demand whatsoever that he or she may hereafter have in property owned at the time of the
marriage or which he or she may acquire in the future using income, proceeds or accumulations from
property owned by him or her at the time of the marriage, whether real, personal, mixed or of any
description whatsoever and wheresoever situate, or estate of the other by way of community, or in
the nature thereof; dower, or in the nature thereof; curtest', or in the nature thereof.
(e) Eauitable Distribution. Any and all right, title, interest, claim and
demand whatsoever that he or she may hereafter have to equitable distribution of all or any part of
the property of the other whether real, personal, mixed or of any description whatsoever and
wheresoever situate which he or she now owns, or which he or she may own at the time of the
marriage, or which he or she may thereafter acquire in the future using income, proceeds or
accumulations from property owned by him or her at the time of the marriage, including any and all
income earned thereon and any and all appreciation therein.
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(f) Payments. Any and all right, title, interest, claim and demand
whatsoever which he or she may, or but for this Post-Nuptial Agreement might, acquire by reason
of the marriage, to alimony, alimony pendente lite, spousal support and counsel fees incurred in
connection with any divorce, separation proceeding, properly settlement or matter related thereto.
2. Separate Property. Each party shall keep and retain the sole ownership,
control and enjoyment of all property, whether real, personal, mixed or of any description
whatsoever and wheresoever situate which he or she now owns, or which he or she owned at the time
of the marriage, or which he or she may hereafter acquire including any and all income earned
thereon and any and all appreciation therein, and each shall have the exclusive right to dispose of
such property and to reinvest the proceeds thereof, which proceeds shall remain his or her separate
property without interference or restraint by the other as if the marriage had not taken place.
3 . Retirement Plans. Each party hereby waives any and all rights accruing to him
or her under the Retirement Equity Act of 1984 as the same maybe amended, and agrees to execute
any document necessary to effectuate such waiver. In addition, each party may invest any portion
of his or her future income in any employer-created deferred compensation plan, profit sharing plan
or pension plan (including but not limited to any plan under Section 401(k) of the Internal Revenue
Code of 1986 as amended or reenacted) and/or Keogh Plan and/or Individual Retirement Account.
Each party waives any and all rights he or she may have in such plans or accounts of the other and
agrees to execute any document necessary to effectuate such waiver.
4. Life Insurance. Each party may maintain existing life insurance policies,
including without limitation, policies provided by or through an employer, and may obtain term life
insurance in any amount and may designate beneficiaries of any life insurance policy at each party's
discretion. Each party waives any and all rights in such life insurance policies owned or maintained
by or for the benefit of the other, except such rights which he or she may have as a named beneficiary
under such policies.
5. Gifts and Inheritances. Each party waives any and all rights that he or she may
have or which may otherwise accrue to him or her in any property, and any and all income earned
thereon and any and all appreciation therein, that the other may acquire from a third parry by way
of gift or inheritance, including testamentary or intestate transfer. Each party covenants with the
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other that he or she will provide in his or her Will that the other parry will receive a specific bequest
of Fifty Thousand Dollars ($50,000.00), provided he or she survives the other party by 30 days, and
further provided that the parties are married to each other at the time of the death of the first to die.
6. No Waiver of Gifts Bequests or Appointments. Nothing herein contained
shall prevent either party from acting as personal representative under any Will in which he or she
shall have been designated as such or under nomination by others having the right of nomination,
or from accepting any property or interest in property which the other party may devise or bequeath
to him or her or may give or convey to him or her by deed or in any other lawful manner.
7. Disclosure. Each of the parties hereto has been given full opportunity to
acquire and have full knowledge of the property and estate of the other. The parties have disclosed
to each other the nature, extent and value of their respective assets, and each party acknowledges that
all questions with regard to the nature, extent and value of their respective assets have been answered
to their satisfaction. The assets of SHIRLEY BENNETT LOTZ are set forth in Schedule A attached
hereto and made a part hereof; the assets of JOSEPH SAMUEL LOTZ are set forth in Schedule B
attached hereto and made a part hereof.
8. Acknowledgment of SHIRLEY BENNETT LOTZ.
SHIRLEY BENNETT LOTZ acknowledges that:
(a) She is fully acquainted with the nature, extent and value of the assets
of JOSEPH SAMUEL LOTZ.
(b) JOSEPH SAMUEL LOTZ has answered all questions she has asked
about his income and assets.
(c) She understands that by entering into this Agreement she is irrevocably
barring property rights which are or may become of a substantial value, and which would otherwise
have accrued to her by virtue of their marriage.
(d) She has at all times received the advice of counsel of her own
choosing.
(e) She intends to be legally bound hereby notwithstanding the present
or future extent or size of JOSEPH SAMUEL LOTZ's estate.
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(f) She is entering into this Agreement freely, voluntarily and with full
knowledge.
9. Acknowledgment of JOSEPH SAMUEL LOTZ.
JOSEPH SAMUEL LOTZ acknowledges that:
(a) He is fully acquainted with the nature, extent and value of the assets
of SHIRLEY BENNETT LOTZ.
(b) SHIRLEY BENNETT LOTZ has answered all questions he has asked
about her income and assets.
(c) He understands that by entering into this Post-Nuptial Agreement he
is irrevocably barring property rights which are or may become of a substantial value, and which
would otherwise accrue to him by virtue of their marriage.
(d) He has at all times received the advice of counsel of his own choosing.
(e) He intends to be legally bound hereby notwithstanding the present or
future extent or size of SHIRLEY BENNETT LOTZ's estate.
(f) He is entering into this Agreement freely, voluntarily and with full
knowledge.
10. Effective Upon Marriage. This Agreement became effective when the
marriage between the parties was solemnized.
11. Further Assurances. Each party hereto upon the request of the other party
shall promptly take all steps, and execute, acknowledge and deliver to the other party or as directed
by the other party all deeds and instruments, necessary or desirable to carry out the purposes and
provisions of this Agreement including any instrument required under Paragraph 3 hereof. Each
party hereby irrevocably appoints the other party as his or her attorney-in-fact with full power and
authority to execute and deliver in his or her name any and all such deeds and instruments in the
event that the other party shall fail to fulfill promptly his or her obligations under this paragraph.
12. Merger Clause. This Agreement contains the entire understanding of the
parties. There are no representations, warranties, promises, covenants or undertakings, oral or
otherwise, other than those expressly set forth herein.
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13. Governing Law. This Agreement shall be construed in accordance with the
laws of the Commonwealth of Pennsylvania at the time of execution and the parties anticipate that,
regazdless of the jurisdiction of their domicile at death or divorce, its terms will be governed in
accordance with the law set down by the Pennsylvania Supreme Court in the case of Simeone v.
Simeone, 525 Pa.392, 581 A.2d 162 (1990).
14. Bindin Ng afore. This Agreement shall be binding upon the parties hereto,
their respective heirs, executors, administrators and assigns, and all persons or institutions claiming
for or through them.
15. Severability. If for any reason whatsoever any part of this Agreement shall
be declared void or invalid by operation of law or otherwise, only such part shall be void and this
Agreement shall remain in all other respects valid and enforceable.
IN WITNESS WHEREOF, the parties, with the intention of being legally bound, have
hereunto set their hands and seals the day and year first above written.
Witnesses:
G~ /~, ~ --
~ ~~~~~
SHIRLEY B ETT LOTZ `°
o~-~-~-~
JOSE H S EL LOTZ
6
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS
On the ~' ~~day of ~'L1 ~ ~ ~~- , 2006,before me, a Notary Public, personally
appeared SHIRLEY BENNETT LOTZ and in due form of law acknowledged the above Post-Nuptial
Agreement to be her act and deed and desired that the same might be recorded as such.
WITNESS my hand and notarial seal.
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pE1RA 7. LOC~IE, NotMY P~t~t Notary Public
Carp M91 Sao, Oun-d
lAlt tbnwnlssion E~ires px. 5~
COMMONWEALTH OF PENNSYLVANIA
COUNTY OF CUMBERLAND
SS
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On the`2'~" day of ,~ ct ~ wr r , 2006, before me, a Notary
Public, personally appeared JOSEPH SAMUEL LOTZ and in due form of law acknowledged the
above Post-Nuptial Agreement to be his act and deed and desired that the same might be recorded
as such.
WITNESS my hand and notarial seal.
~d
~ No~t'ery ~~ Notary Public
Hg136~ro, Curt~iand Crounh-
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7
SHIRLEY BENNETT LOTZ
ASSETS
Ameriprise Financial $182,411.95 May 31,2006
PNC Investments $ 17,599.18 March 31, 2006
IRA $165,296.73 end of 2005
Checking Account $ 5,374.81 as of 6-24-06
TOTAL $370,682.67
MONTHLY
The Hartford (Pension) $ 411.20 Gross
Social Security $ 932.50 Gross
Miscellaneous Income from
Investments $ 100.00
IRA $ 660.00
TOTAL $ 2103.70
5~,~-~ A
Sunday, June Z5, 2006 CompuServe: LOTS OF MOUSES Page: 1
ASSETS
Vanguard Stmt 3/31/06 IRA $ 80,880.72
Other Assets 18,867.17
PNC Stmt 3/31/06 Mutual Fund 13,602.72
Bank of America 5/31/06 Stocks 108,539.03
PNC 6/19/06 Checking Acct 3,550.75
231 N. 40th ST Property
Apt # 103 Estimated Value 47.500.00
Harrisburg, Pa April, 2006
Plountz @ 227
Total $ 272.940.39
INCOME MONTHLY
Social Securty 6/03/06 $ 954.00
Pension Comm. of Pa 5/31/06 246.92
Vanguard Annual/shown monthly 880.00
Condo Rent Average Mont hly 330.00
Total $ 2080.92
Additional income expected from previous and current assets
Additional monies are expected from some or all of various stocks
owned presently and in the past resulting from bankruptcies and
stockholders provisions.
The companies include but are not limited to: Hills Dept Stores,
Ames Dept stores, K Mart, Ahold, Boyd Bears, Delta Airlines, Enron,
etc.
~~,~ ~
Wednesday, June 28, 2008 CompuServe: lOT3 OF MOUSES Psge: ~
CERTIFICATE OF SERVICE
I hereby certify that a copy of the foregoing Petition of Surviving Widow to Extend
Time for Election to Take Against Will pursuant to Local Rules 12.3-1 and 12.3-2 has
been duly served upon the Executrix of the Estate of Joseph Samuel Lotz, by depositing
the same in the United States Mail, postage prepaid, by certified mail, restricted
delivery, return receipt requested, in Lemoyne, Pennsylvania, on:
Dyan L. Yingst
801 Pheasant Road
Harrisburg, PA 17112
JOHNSON, DUFFIE, STEWART & WEIDNER, P.C.
By ~~~ -
Elizabet . Snover