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HomeMy WebLinkAbout05-21-09r-? ,: .,y __ _ .. ~•~ ~_-- .1 Johnson, Duffie, Stewart 8~ Weidner ~~ ~_, ~ ~~' By: Elizabeth D. Snover ~ ~ T~' Attorney I.D. No. 200997 , ~ _ 301 Market Street - _' P. O. Box 109 - ~ _' Lemoyne, Pennsylvania 17043-0109 -, - ~' ~:, `- (717) 761-4540 ' ' tr°' eds@jdsw.com Attorneys for Petitioner IN RE: ESTATE OF JOSEPH SAMUEL LOTZ, Deceased IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-08-1000 PETITION FOR CITATION TO SHOW CAUSE WHY EXECUTRIX SHOULD NOT BE ORDERED TO FILE AN ACCOUNT AND INVENTORY PURSUANT TO 20 Pa. C.S.A. ~ 3501.1 AND ~ 3301 TO THE HONORABLE JUDGES OF THE ORPHANS' COURT DIVISION: Petitioner, Shirley Bennett Lotz, files this Petition for Citation to Show Cause Why the Executrix of her late husband's estate should not be ordered to file an accounting and inventory under the provisions of Section 3501.1 and 3301, 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 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. Yingsl (Executrix), residing 801 Pheasant Road, Harrisburg, 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, was extended by Order of Court, dated April 30, 2009. Therefore, Mrs. Lotz still has the ability to file an election against the Will. 6. Furthermore, Petitioner has filed a Claim for the Family Exemption as surviving spouse under Section 3121, Probate, Estate and Fiduciary Code. 7. Mrs. Lotz is a party in interest given both the claim for family exemption and the potential election against the Will. 8. More than six (6) months have elapsed since the first complete advertisement of the grant of letters to the Executrix, Dyan Yingst. 9. No account of the administration of the estate has been filed, the family exemption remains unpaid to Mrs. Lotz, and no inventory has been filed for the estate. 2 10. Petitioner also sent a written request to the Executrix to file an inventory of the estate pursuant to Section, 3301 Probate, Estate and Fiduciary Code on January 20, 2009. A true and correct copy of the correspondence dated January 20, 2009 is attached hereto as Exhibit B. 11. Pursuant to Section 3301 of the Probate, Estate, and Fiduciary Code, Ms. Yingst had 30 days from delivery of that request to file an inventory. 12. Ms. Yingst responded by letter dated February 20, 2009 indicating that an inventory would be filed promptly. A true and correct copy of the correspondence dated February 20, 2009 is attached hereto as Exhibit C. 13. No inventory has been filed at the time of filing this Petition. WHEREFORE, Petitioner respectfully requests that a citation be awarded, directed to Dyan Yingst, Executrix of the will of Joseph Samuel Lotz, deceased, to show cause why she should not be ordered to file an account of her administration of the estate and an inventory of the estate. Respectfully submitted, JOHNSON, DUFFIE, STEWART & WEIDNER ~ _ By: ~`L_ Jerry R. Duffie Attorney I.D. .09601 Elizabeth D. Snover Attorney I.D. No. 200997 301 Market Street P.O. Box 109 Lemoyne, PA 17043-0109 Telephone (717) 761-4540 ,~` Attorneys for Petitioner, Shirley Bennett Lotz, Dated: CJ ~ " Z ~ " ~ ~ Surviving Widow :366278 3 VERIFICATION I, Elizabeth D. Snover, attorney for Petitioner, verify that the statements made in this Petition 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. Elizabet . Sn r EXHIBIT A EXHIBIT A LAST WILL AND TESTAMENT, DATED FEBRUARY 27, 1995 LAST WILL AND TESTAMENT 1, JOSEPH S. LOTZ, of 2?~ 1~?ortn 4vth Street, Harrisburg, C;ourty Ci Dal;iphlIi, t'C171::=ylv'aT11a, Ci0 rlereriy IIiake, pu'i:~i15h, aiid declare this to be my LAST WILL 1~ND TESTAMENT, revoking any and all prior wills and codicils, in manner following, 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 DP.VID 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 b e divided equally between Iny 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 bond in this or in any other jurisdiction. IN WITNESS WHEREOF, I have hereunto set my hand and seal this 27th day of February, 1995. - ~'' ` '' 'i_:,` JOSE H S. LOTZ .~ {-_ a ~; 3 ~, -- _ WITNESS ~ ,_f c - -> - - ~ i_; WITNESS ACKNOWLEDGMENT COMMONWEALTH OF PENNSYLVANIA COUNTY OF DAUPHIN I, JOSEPH S. LOTZ, testator, whose name is signed to the attached or foregoing instrument, Navin according to law, do hereby acknowledge executed the instrument as my Last Will _,,.• ~ i~ ... _,a 5ig~icu i ~ wi.i liiiyly a]d ti:a,_ S1g_ic..,~ act for the purposes therein expressed. ~ been duly qualified that I have signed and and Testament; that I ~. as 1Liy fr eC ai.d JiJi:an tUry Sworn or affirmed to and acknowledged before me by JOSEPH S. LOTZ, the testator, this 27th day of February, 1995. r. c, --~- - _. JOSEPH ~. LOTZ ~y r ~~ , _ NOT Y ,P LIC ~ J ~ rfiC I -- ' t ,~ ~ u_'r ~ ~ ` y ( ~. L~t~T i1 TSTTT ONWEALTH OF PENNSYLVANIA C OI`'~ DAUPHIN Ty OF COUN LES E, PETRIE and TINA M. MONGIELLO, the witnesses WEB CHAR ose names are Signed to the attached or foregoing instrument, wh qualified according to law, do depose and say that we being duly and saw testator sign and execute the instrument as e present wer LAST WILL AND TESTAMENT; that JOSEPH S. LOTZ signed willingly his uted it as his free and voluntary act for the e exec h and that ex ressed; that each of us in the hearing and purposes therein for si ned the will as witnesses; and that to t of the testa g h sig best of our knowledge the testator was at that time 18 or the of agei of sound mind and under no constraint or undue ears more Y influence affirmed to and subscribed before me by CHARLES E. /WOrn or TRIE and TINA M• MONGIELLO, witnesses, this 27th day of PE ary~ 1995. Febru ~-- ~ , , J } r~ 7 [ti~ITNES5 .~ G WITNESS NO~ l~BLIC EXHIBIT B EXHIBIT B CORRESPONDENCE DATED JANUARY 20, 2009 JERRY R. DUFF]E Q G";~. ~ P/IEL7SSA PEEL GREEVY RICHARD V1~. STEI~'.ART ROBEFT M. ~UALkER C. ROT A'EIDNER. R. J ~ Vi/ADE D. MANLE~ EDivIUND G. MYERS IrLIZABETH D. SNOVER DAVID 5~~. DELUGE KELLY L. BONANNO OHN A. STATLER I L A 1V O F F I C E S ANDREA' P. DOLLMAN JEFFERSON J. SHIPMAN 1~ T I~ T ~ T JEFFREI' B. RETTIG ~ ~O J~\~ ~ I \ I KEVIN E. OSBORNE j l V OF COUNSEL RALPH H. ItiIRIGHT. JR. T T~~T~ HORACE A. JOHN50N MARP C. DUFFLE 1~J1 1 JOHN R. NINOSKl, F. LEE SHIP1dAN MICHAEL j. C.A55ID1' 11965-2006{ «F'1'i'E~lt",~l:F"I'. N~i.l i I~;-~ai~IL j u!-jc1,5Gr.cam January 20, 2009 Dyan L. Yingst 801 Pheasant Road Harrisburg, PA 17112 RE: Estate of Joseph Samuel Lotz, Deceased File No. 21-08-1000 Dear Ms. Yingst: This firm represents Shirley Bennett Lotz. It is our understanding that you are the Executrix of the Estate of Joseph Samuel Lotz, Deceased. As you may know, Shirley Bennett Lotz and your father, Joseph Samuel Lotz entered into aPost-Nuptial Agreement, dated August 2, 2006, whereby, among other things, you father is obligated to provide in his Will a specific bequest in the amount of Fifty Thousand ($50,000.00) Dollars payable to Shirley Bennett Lotz provided, that Shirley Bennett Lotz survived your father by thirty (30) days and, provided that Shirley Bennett Lotz and your father were married at the time of your father's death. Based on the Petition for Probate and Grand of Letters, dated as of October 7, 2008, you, as Executrix, probated the Last Will and Testament of your father, dated February 27, 1995. However, you did not probate the First Codicil to that Will, dated May 10, 2002. A copy of the First Codicil is attached. Accordingly, it is hereby requested that the First Codicil, dated May 10, 2002, be probated immediately. If the First Codicil is not probated it is our intent to file a petition to compel production of the First Codicil and to probate the First Codicil. In addition, it is our intention to file a claim with the Cumberland County Register of Will's Office for the $50,000.00 specific bequest based upon the Post-Nuptial Agreement, described above. In addition, there are other issues that need to be addressed. Specifically, those issues are as follows: Joint Federal Income Tax Return/2008. Historically, Mrs. Lotz and your father filed joint federal income tax returns. The tax preparer, who has prepared the prior federal income tax returns, has inquired as to whether the federal tax return for the calendar ~O1 R~IAP~I:ET STREET P.0. BOr. 109 LEMOYNE. PEN_'~SI'U~ANI,4 17043-0I09 t~-1~~1~~.jDS~t-'.COTdI 717.761.4540 FAa:717.761.3015 J11AIL@JD~1h%.C0117 JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. Dyan L. Yingst January 20, 2009 Page 2 year 2008 will be filed jointly by your father and Mrs. Lotz. There have been tax savings based on joint returns by your father and Mrs. Lotz. Accordingly, I would like you to inform me as to whether you, in your capacity as Executrix, are willing to file a joint federal income tax return for calendar year 2008. If you are agreeable to file the joint federal income tax return then the relevant information pertaining to your father's income must be provided to the tax preparer. The tax preparer will then prepare a joint federal income tax return and will submit it to you and Mrs. Lotz for approval. Family Exemption. It appears, based on the information available to us, that Mrs. Lotz is the only individual that can claim the family exemption. We are willing to discuss the filing of a family exemption which could be beneficial to the Estate. Inventory. We also respectfully request that you forward an Inventory to me, as Mrs. Lotz's attorney, as soon as possible. Mrs. Lotz is anxious to resolve this matter on an amicable basis. However, if this matter cannot be resolved on an amicable basis, then .Mrs. Lotz will pursue appropriate proceedings in the Orphan's Court Division of the Court of Common Pleas of Cumberland County in order to protect her rights under the Post-Nuptial Agreement (as well as the Pre-Nuptial Agreement, dated May 10, 2002). Finally, in the event that the First Codicil is not probated Mrs. Lotz intends to file an election against the Will of your father to assert her elective rights. Because of the issues described above, you are advised not to distribute any assets of your father's Estate. I would appreciate it if you would contact me directly or through your attorney so that we can discuss amicable resolutions of the issues. Very truly yours, JOHNSON, DUFFIE, STEWART & WEIDNER Jerry R. Duffie gjm:356005 Enclosures cc: Shirley Bennett Lotz EXHIBIT C EXHIBIT C CORRESPONDENCE DATED FEBRUARY 20, 2009 Dyan L. Yingst 801 Pheasant Road Harrisburg PA 17112 RE: Estate of Joseph Samuel Lotz File 21-08-1000 February 20, 2009 Mr. Jerry R. Duffie, Esquire Johnson, Duffie, Stewart and Weidner 301 Market Street Box 109 Lemoyne, PA 17043 Dear Mr. Duffie: _ ~ J _= ___._~ a ~P<,;; .u°.~ Thank you for your letter of January 20, 2009, laying out several matters related to the Estate of Joseph S. Lotz, and his widow, Shirley Bennett Lotz. As an attorney, you know that it takes some time to resolve the many aspects of an estate. Several items have already been addressed. For example, I recently closed a sale for his vehicle. However, there are still some key areas that need to be resolved. For example, we are seeking expert advice regarding the handling of assets which have been substantially diminished as a result of the current economic environment. You will receive a complete inventory as soon as all information becomes available. Early in January I was in contact with Richard Simpson, the CPA who prepared their most recent tax returns and promised to provide him with information for the 2008 tax year filing as soon as I receive everything. The IRS did not require this information to be mailed until mid-February this year. In closing, I wish to reassure Shirley -and you as her legal counselor -that my brother, David W. Lotz, my sister, Linda A. Lotz, and I also hope that these financial matters can be resolved in a prompt and amicable manner. Sincerely, ,~. ,~- an L. Yings /~~ Executrix Cc: Shirley Bennett Lotz Linda A. Lotz David W. Lotz CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Petition 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 first class mail in Lemoyne, Pennsylvania, on: Dyan L. Yingst 801 Pheasant Road Harrisburg, PA 17112 JOHNSON, DUFFIE, STEWART & WEIDNER, P.C. ,~ ' By ~ZU~~`j Eliza eth . Snover