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HomeMy WebLinkAbout06-01-09IN RE: ESTATE OF ANITA M. : IN THE COURT OF COMMON PLEAS KISSINGER, DECEASED :CUMBERLAND COUNTY, PENNSYLVANIA DOCKET N0.21-08-0926 <. , ,1 :ORPHANS' COURT DIVISION .`, ~ ~- ~ - - ~-' c V~ a JUANITA M. PANKO'S MOTION TO DISQUALIFY - _ ~ __.~_ - , PETITIONER'S COUNSEL - - AND NOW, comes Juanita M. Panko, by and through her counsel, Serratelli, Schiffman, Brown & Calhoon, P. C., and files her Motion to Disqualify Counsel, and in support thereof aver as follows: Parties 1. Juanita M. Panko (hereinafter "Movant"), is the daughter of Anita M. Kissinger, (Deceased) who resides at 2153 Bordeaux Court, Harrisburg, Dauphin County, Pennsylvania. 2. Lester G. Kissinger, Jr. (hereinafter "Respondent"), who resides at 11 Longwood Drive, Mechanicsburg, Cumberland County, Pennsylvania. Background 3. Anita Kissinger (hereinafter "Decedent") died on September 5, 2008 leaving a Will dated May 29, 1981 that was admitted to probate. A copy of the Will is attached hereto as Exhibit "A." 4. In accordance with the Decedent's Will, Respondent currently serves as the Executor of the Estate of Anita Kissinger. 5. On or about April 1, 2009, Respondent in his role as Executor of the Estate of Anita M. Kissinger, filed a "Petition for Turnover of Assets" (hereinafter "Petition") to the above captioned docket by and through his counsel, Richard Connell, Esquire of the law firm, Ball, Murren & Connell. Without admitting the truth of any of the averments set forth therein, a true and correct copy of the Petition is attached hereto as Exhibit "B." Plaintiff s Counsel's Conflict of Interest 6. Upon information and belief, Respondent's personal legal counsel is Richard E. Connell, Esquire (hereinafter "Connell") of the law firm of Ball, Murren and Connell. 7. On or about May 27, 2008, Respondent requested legal counsel from Connell on behalf of himself and his two siblings, Movant and Jacob T. Kissinger (hereinafter "JTK"), concerning their mother (the Decedent) who was still living at the time. 8. In a letter dated May 27, 2008, the Respondent wrote a letter to Connell on behalf of himself and his two siblings requesting that Connell provide them with legal advice concerning their mother. In his letter, Respondent specifically requested as follows: "If you can ig ve us any other advice on things we should be aware of, it would be appreciated." A true and correct copy of the Respondent's May 27, 2008 letter is attached hereto and is marked as Exhibit "C." (Emphasis added). 9. On or about June 10, 2008, Movant, Respondent, JTK (hereinafter collectively the "Kissinger siblings"), and the Decedent all met with Connell at the Decedent's home, 215 N. 30th Street, Camp Hill, PA. During the meeting, Connell acted as legal counsel for each of the Kissinger siblings and in so doing received information that was thought to be protected by the attorney-client privledge and further rendered legal advice to each of the Kissinger siblings concerning the disposition of the Decedent's assets. 10. Upon information and belief, Connell met a second time with Respondent and the Decedent to review the Decedent's Will. 11. Rule 1.9 of the Rules of Professional Conduct regarding duties to former clients prohibit Connell and Ball, Murren & Connell from representing the Respondent or the Estate in a matter in which Respondent's interests are materially adverse to the interests of Movant, the former client of Connell and the law firm, Ball, Murren & Connell. Specifically, Rule 1.9(a) provides as follows: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or substantially related matter in which that person's interests are materially adverse to the interests of the former client unless the former client gives informed consent. 12. A review of the Petition filed by Respondent through Connell and Ball, Murren & Connell against Movant reveals that Respondent's interests are materially adverse to the interests of Movant, the former client of Connell and Ball, Murren & Connell. 13. Neither Connell, nor any member of his firm obtained consent from Movant for their representation of Respondent in the prosecution of his claim against Movant. 14. Movant has not consented to either Connell or Ball, Murren & Connell representing Respondent in this matter. 15. As recently as January 26, 2009, Connell has represented to a member of the undersigned counsel's firm that he is prepared to testify concerning matters that were allegedly discussed between himself, the Parties and the Decedent concerning her Will and the disposition of her property. 16. Pursuant to Rule 3.7 of the Rules of Professional Conduct provides in relevant part that a lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness. 17. On January 26, 2009, Attorney Steven J. Schiffman sent a letter to Connell in which he, inter alia, brought to Connell's attention the inherent conflict of interest both Connell and his firm had in proceeding further with any litigation on behalf of Respondent against Movant. As the January 26, 20091etter from counsel included other references to settlement negotiations between the Parties, a copy of the January 26, 20091etter is not attached hereto as an Exhibit, but will be produced as an exhibit, if necessary, during the hearing on this Motion. 18. On or about April 1, 2009, Connell and the law firm of Ball, Murren & Connell filed a Complaint on behalf of Petitioner against Movant to the civil side of this Court in a matter captioned Lester G. Kissinger, Jr., Executor, Estate of Anita M. Kissinger, V. Juanita M. Panko, and Docketed at No. 2009-2034. In addition to filing Preliminary Objections to the Complaint, Movant filed a Motion to Disqualify Petitioner's Counsel, similar to the within Motion. 19. On or about May 1 1, 2009, Connell and the law firm of Ball, Murren & Connell withdrew their appearance on behalf of the Respondent in regard to the civil matter in response to the Motion to Disqualify filed by Movant. 20. Despite the fact that Connell and the law firm of Ball, Murren & Connell properly withdrew their appearance on behalf of the Petitioner in the civil matter, Connell and the law firm of Ball, Murren & Connell have apparently concluded that they do not have a conflict of interest in representing Respondent in regard to the above captioned proceeding, despite the fact that the same set of facts and circumstances surrounding the inherent conflict of interest still exists. 21. As is evidenced by the Petition, both Connell and the law firm of Ball, Murren & Connell failed to recognize their inherent conflict of interest they have in representing the Respondent in this matter. 22. Rule 1.10 of the Rules of Professional Conduct provides that "while lawyers are associated in a firm, none of them shall knowingly represent a client when any one of them practicing along would be prohibited from doing so by the Rules." 23. For the same reasons that Connell is disqualified from serving as Respondent's counsel in this case, so too is the law firm of Ball, Murren & Connell. 24. Movant has been and will continue to be prejudiced by virtue of the fact that confidential information which may have been gained by Connell is imputable to other members of his firm. 25. The above captioned action has not been previously assigned to or heard by any Judge of this Honorable Court. 26. The undersigned counsel has contacted Respondent's counsel, Richard E. Connell, Esquire, regarding the substance of the within Motion and as of this time he has not responded as to whether or not he will concur in the same. WHEREFORE, Movant, Juanita M. Panko, respectfully requests that this Honorable Court grant the relief requested in the within Motion, issue an Order disqualifying both Richard E. Connell, Esquire and the law firm of Ball, Murren & Connell from further representation of Respondent, or the Estate of Anita M. Kissinger, in this matter, and further award Movant all such other relief as is proper and just. Respectfully submitted, ,~'"~ Date: May 29, 2009 ~~ ~ ^ ~ ~~`~~ ~f % ~ ~~-f ~i ~~ ~ ~- v Paig Macdonald-Matthes, Esquire Pa. Attorney I.D. No. 66266 SERRATELLI, SCHIFFMAN, BROWN & CALHOON, P.C. 2080 Linglestown Road, Suite 201 Harrisburg, PA 17110 (717) 540-9170 Attorneys for Movant, Juanita Panko VERIFICATION I, Juanita M. Panko verify that the statements made in the foregoing Motion to Disqualify Counsel are true and correct. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. Section 4904, relating to unsworn falsification to authorities. Date: ~ ~U ~C,~" ita M. Panko CERTIFICATE OF SERVICE I, Paige Macdonald-Matthes, Esquire, do hereby certify that on this 29`h day of May, 2009, I served a copy of Movant's Motion to Disqualify via facsimile and United States Mail, First Class, postage pre-paid, to the following person(s): Richard E. Connell, Esquire BALL, MURREN & CONNELL 2303 Market Street Camp Hill, PA 17011 717-232-2142 facsimile Attorney for Respondent ~'~ i ~~ Paige acdonald-Matthes, Esquire ' LAST WILL AND TESTAMENT OF ANITA M. KISSINGER I, ANITA M. KISSINGER, a resident of the Commonwealth of Pennsylvania, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my LAST WILL AND TESTAMENT'. I hereby revoke any and all wills and codicils heretofore made. I IDENTIFICATIONS AND DEFINITIONS I am married to LESTER G. KISSINGER, hereinafter referred to as ~~ my Spouse. We have three children, LESTER G. KISSINGER, JR., JUANITA M. KISSINGER and JACOB T. KISSINGER. References in this Will to "my Children" include these three children and any other lawful children born to or adopted by me. The following definitions obtain in any use of the terms in this Will: 1. "Descendants" means the immediate and remote lawful, lineal descendants of the person referred to, and it means those descendants in being at the time they must be ascertained in order to give effect to the reference to them, whether they are born before or after my death or of any other person. The persons who take under this Will as Descendants shall take by right of representation, in accordance with the rule of per stirpes distribution and not in accordance with the rule of per capita distribution. Persons legally adopted when under the age of fourteen years shall not be differentiated from blood descendants for any purpose. 2. "Survive me" is to be construed to mean that the person referred to must survive me by thirty days. If the person referred to dies within thirty days of my death, the reference to him shall be construed as if he had failed to survive me. 3, As used in this Will, the words "Executor," "he," "him," "his," and the like shall be taken as generic and applicable to a natural person of either sex or a corporate person or other legal entity. _ _. II PAYMENT OF DEBTS-AND TAXES I direct my Executor to pay the following as soon after my death as may be practicable: 1. All bf my just debts and the expenses of my last illness, funeral and of the administration of my estate; but my Executor need not accelerate and pay those unmatured obligations which, in his opinion, it might be proper and more advantageous to retain or renew and pay as they become due and payable. _ 2. All inheritance, transfer, estate and similar taxes (including interest and penalties) assessed or payable by reason of my death, on any property or interest in my estate for the purpose of computing taxes. My executor shall not require any beneficiary under this will to reimburse my estate for taxes paid on property passing under the terms of this Will. III RESiDUARY ESTATE A. I define "my Residuary Estate" as all of my property after the payment of debts and taxes under Article II above, including real and personal property, whenever acquired by me, property as to which effective disposition is not otherwise made in this Will or by operation of law, and property as to which I have an option to purchase or a reversic;.ary interest, but excluding property as to which I have no interest other than a power of appointment_ B. I give my Residuary Estate to my Spouse if he survives me. C. If my Spouse does not survive me, I direct my Executor to divide my Residuary Estate into equal shares and to distribute'those shares as follows: 1. one share to each of my Children who survive me. 2. one share to be divided equally among the then living descendants of each of my Children who do not survive me. IV APPOINTMETFI' OF EXECU'IC~R I nominate and appoint my Spouse, LESTER G. KISSINGER, as .Executor of-this my LAST WILL AND TESTAMENT. If LESTER G. KISSINGER zs-.unable or:unw.lling to: serve in_ths capacty,_I appoint my son, LESTER G ~ KISSINGEF2,~.:.: JR ; . to serve ~ instead I request that my "Executor be perin~.t~ed to serve without bond or surety thereon. I .~ut~ ,~.~r tp ~o ariy a all ;tz~-rrsg$ which zd_ h1s opinion ~ ~~~~~ c:€~~~e- t a~str~t~~n a~*d settlement, ,~f ~- ._.. ., _ .•r _ -. -._. ~ _ -.-. _~ ~ .., .,... ___ __ ___ L LZI l~L C .~~,,,~ ,a^ gdSL, 'psi iLJ- ~L :w1 tSl..~11 .,: L2-.~y r~.-.r . - .~- ~~~,t ~.~~~33 Rj ~- i~ d3 ~~~ dl: LiY£3riLy, ~ of any court aa~a upon such terms arm under such conditions. as my Executor shall deem best for the proper settlement of my estate; to bargain, sell at public or private sale, convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate; to compromise, settle, adjust, release and discharge any and all obligations or claims in favor of or against my estate; and to borrow money for the payment of inheritance and estate taxes or for any other purpose. Without in any way limiting the scope of the powers enumerated herein of my Executor, I hereby specifically give to him full power to retain any and all securities or property owned by me at the time of my decease whenever, in his absolute and uncontrolled discretion, such a course shall seem to him to be best, without liability for depreciation or loss, and free from investment restrictions incident to executorship, whether imposed by common law or statute.:: In the execution of his duties and powers as Executor Fie shall have the power to comply with all legal requirements as to the execution and delivery of deeds and all other writings, documents or formalities without the order of any court; and he shall furnish a statement of receipts and disbursements at least annually to each person then entitled to receive income or property from my estate. ;} ,~ ~. ~~ IN WITNESS Wf~REOF, I have at Carlisle Barracks, Pennsylvania, this .~ ~.. day of .....~-•••••••~ 1981, set my hand and seal to this my LAST WILL AND TESTAMENT consisting of three (3) typewritten pages. ~ ~ cJ(.~ ; »t ~L -(ELI,) ....... ... . ... ANITA M. KISSINGER, Tes for Signed, sealed, published and declared by the Testator, ANITA M. KISSINGER, as and for her Last Wi11 and Testament, in the presence of us, who, at her request, in her presence and in the presence bf each other, have hereunto subscribed our names as witnesses. NAME ~ .. ~.~ .. j~^t'~- . ~ . .. . ADDRESS . .. ... •r COMMONWEALTH OF PENNSYLVANIA)ss: COUNTY OF CUMBERLAND ) I, ANITA M. KISSINGER, Testator, whose name is signed to the attached or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and acknowledged before me, by ANITA M. KISSINGER, the Testator, this .~:`~,. day of ~u~..........., 1981. • -77~ ....::h~ 1~ :'. ..... .. . ANITA M. KISSINGER, Testator csF.AT,) ,,,~Ca.~~~.G'. ...s.... ~...... Notary Public•• .~ ' ~~ f~oria A. C~abner, Notary Pu6fic Affidavit Middleton Twp., Cumberland Coursty MY Commission Expires Feb. 5, 1983 Member. Pennsylvania ~iaticn o1 iiotar,'~- COPM'lONWEALTH OF PENNSYLVANIA)ss: COUNTY OF ) We, ..,c~GSfa H : 0~ i / Z-... , Cr3re-~ C-. yv.. ~:.~;a; ;r a ~ ... and ., „j'Y~;clt~~ei, ~!. t''h. ~1~::~. ... , the witnesses whose names are signed to the attached cr foregoing instrument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as her Last Will; that ANITA M. KISSINGER, signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. Sworn or affirmed to end subscribed to befor~e,~!e by 1: ~r ~~ ~ ' .~:~'.T~z, ~ c.~2~ c:: ;./~~:./~. r9-d-ro 5 ., and .~':C~'~~c~~%~/!'Ir,~~r~_rc:~' . witnesses, this :~ day of ....~'j'.~ ~:..... ., 1981. ~~ wI s .~ ~::: ~:.G. -WITNESS c WITNESS ISotary Public North ~ e ~ Wner, ~rY Pubes MY Commissio p'' Cumbe,rand ~ M&nber, Penro-: ~.. ~ Ezpir~ Feb. S, 1983 ~. IN RE: ESTATE OF ANITA M. IN THE COURT OF COMMON PLEAS KISSINGER, DECEASED CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. c%~/ O ~ ©90~ ~ DECREE AND NOW, this day of , 2009 upon consideration of the attached Petition, it is hereby ordered that a citation be awarded, directed to Juanita M. Panko to show cause why she should not turn over the cash and provide an inventory for and turn over, artwork, curios, household, goods, furnishings and other personal property to Petitioner, Executor of the Will of Anita M. Kissinger, Deceased, for administration and distribution in accordance with the Decedent's Will. J. Entered on IN RE: ESTATE OF ANITA M. IN THE COURT OF COMMON PLEAS KISSINGER, DECEASED CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION CITATION ON PETITION FOR TURNOVER OF ASSETS TO: Juanita M. Panko c/o Paige Macdonald-Matthes, Esquire Serratelli, Schiffman, Bro~~n & C'alhoon, P.C". Suite 201 - 2080 I,in~~lesto~~~n. Road Harrisburg, I'A 17110-9693 AND NOW, this day of 2009 upon consideration of the foregoing Petition for Turnover of Assets, a Rule to Show Cause is issued to Respondent, Juanita M. Panko, to show cause, if any she has, why the relief requested therein should not be granted. RULE RETURNABLE on , 2009, at a.m./p.m. in Courtroom No. of the Cumberland County Courthouse. BY THE COURT J. Distribution List: Paige Macdonald-Matthes, Esquire, Serratelli, Schiffman, Brown & Calhoon, P.C., 2080 Linglestown Road -Suite 201, Harrisburg, PA 17110 Richard E. Connell, Esquire, Ball, Murren & Connell, 2303 Market Street, Camp Hill, PA 17011 IN RE: ESTATE OF ANITA M. KISSINGER, DECEASED IN THE COURT OF COMMON PLEAS CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVIS-~~1 ~, ~, . _ - -, __~ _;., --~ PETITION FOR TURNOVER OF ASSETS ~.~ <:: :w; ~;,~ f ~- -,~ - ~_ .. __, c.~ AND NOW, this 21St day of May 2009 comes the Petitioner, Lester G. Kissinger, Jr., Executor of the Estate of Anita M. Kissinger, by his attorneys, Ball, Murren & Connell and respectfully represents that: 1. Anita M. Kissinger died on September 5, 2008 leaving a Will dated May 29, 1981 which was admitted to probate. A copy of the Will is attached hereto as Exhibit "A" and is incorporated herein by reference. 2. Petitioner, Lester G. Kissinger, Jr., Executor, an adult individual with residence at 11 Longwood Drive, Mechanicsburg, Pennsylvania was appointed Executor of the Will of Anita M. Kissinger, Deceased by Letters Testamentary dated September 15, 2008 of the Register of Wills, Cumberland County, Pennsylvania. A copy of the Letters Testamentary is attached hereto as Exhibit "B" and is incorporated herein by reference. 3. Respondent is Juanita M. Panko, an adult who resides at 2153 Bordeaux Court, Harrisburg, Pennsylvania. 4. Among Decedent's assets at or immediately preceding her demise was Fifteen Thousand ($15,000.00) Dollars in cash and artwork, curios, household goods, furnishings and other personal possessions that were removed from Decedent's place of residence immediately prior to her death by Respondent and/or her agents, servants, employees or members of her family or which have been retained by the Respondent and/or her agents, assigns or family members at the Decedent's last residence contrary to the terms of the Decedent's Will and to the exclusion of the residual beneficiaries of the estate other than Respondent. 5. Pursuant to Decedent's Will, her residual estate including personal property is divided equally among Petitioner, Respondent and Jacob T. Kissinger, their sibling. 6. Petitioner has demanded that Respondent return the cash to him and to provide an inventory for and turn over to Petitioner of the artwork, curios, household goods, furnishings and all other personal property of the Decedent as above described, but she refuses to do so. WHEREFORE, Petitioner requests that the Court award a citation directed to Juanita M. Panko to show cause why she should not turn over the cash and provide an inventory for and turn over, artwork, curios, household goods, furnishings and other personal property to Petitioner, Executor of the Will of 2 Anita M. Kissinger, Deceased, for administration and distribution in accordance with the Decedent's Will. Respectfully Submitted: Richar .Connell, Esq I.D. # 21542 Ball, Murren & Connell 2303 Market Street Camp Hill, PA 17011 (717) 232-8731 Attorney for Petitioner Date ~ ~ ~bU VERIFICATION I, Lester G. Kissinger, Jr., state that I am the Executor of the Estate of Anita M. Kissinger, the Plaintiff herein, that I am authorized to make this affidavit on its behalf, and that the facts set forth in the foregoing Petition are true and correct to the best of my information and belief. I understand that my statements are made subject to 18 Pa.C.S. §4904, relating to unsworn falsification to authorities. ~~ Lester G. Kissinger, Jr., Ex cutor of the Estate of Anita M. Kissinger Date /~~ j, Z ov ~ LAST WILL AND TE.STAMEN`.P OF ANITA M. KISSINGER I, ANITA M. KISSINGER, a resident of the Commonwealth of Pennsylvania, being of sound and disposing mind and memory, do hereby make, publish and declare this instrument to be my LAST WILL AND TESTAMENT. I hereby revoke any and all wills and codicils heretofore made. I IDENTIFICATIONS AND DEFINITIONS I am married to LESTER G. KISSINGER, hereinafter referred to as ~~ my Spouse. We have three children, LESTER G. KISSINGER, JR., JLJANITA M. KISSINGER and JACOB T. KISSINGER. References in this Will to "my Children" include these three children and any other lawful children born to or adopted by me. The following definitions obtain in any use of the terms in this Will: 1. "Descendants" means the immediate and remote lawful, lineal descendants of the person referred to, and it means those descendants in being at the time they must be ascertained in order to give effect to the reference to them, whether they are born before or after my death or of any other 'person. The persons who take under this Will as Descendants shall take by right of representation, in accordance with the rule of per stirpes distribution and not in accordance with the rule of per capita distribution. Persons legally adopted when under the age of fourteen years shall not be differentiated from blood descendants for any purpose. 2. "Survive me" is to be construed to mean that the person referred to must survive me by thirty days. If the person referred to dies within thirty days of my death, the reference to him shall be construed as if he had failed to survive me. 3. As used in this Will, the words "Executor," "he," "him," "his," and the like shall be taken as generic and applicable to a natural person of either sex or a corporate person or other legal entity. II PAYMENT OF DEBTS AND TAXES I direct my Executor to pay the following as soon after my death as may be practicable: 1. All of my just debts and the expenses of my last illness, funeral and of the administration of my estate; but my Executor need not accelerate and pay those unmatured obligations which, in his opinion, it might be proper and more advantageous to retain or renew and pay as they become due and payable. 2. All inheritance, transfer, estate and similar taxes (including interest and penalties) assessed or payable by reason of my death, on any property or interest in my estate for the purpose of computing taxes. My executor shall not require any beneficiary under this will to reimburse my estate for taxes paid on property passing under the terms of this Will. III RESIDUARY ESTATE A. I define "my Residuary Estate" as all of my property after the payment of debts and taxes under Article II above, including real and personal property, whenever acquired by me, property as to which effective disposition is not otherwise made in this Will or by operation of law, and property as to which I have an option to purchase or a reversionary interest, but excluding property as to which I have no interest other than a power of appointment_ B. I give my Residuary Estate to my Spouse if he survives me. C. If my Spouse does not survive me, I direct my Executor to divide my Residuary Estate into equal shares and to distribute those shares as follows: 1. one share to each of my Children who survive me. 2. one share to be divided equally among the then living descendants of each of my Children who do not survive me. IV APPOINTMEN'T' OF EXECtP770R I nominate and appoint my Spouse, LESTER G. KISSINGER, as Executor of this my LAST WILL AND TESTAMEDI`i'. If LESTER G. KISSINGER is,unable or unwilling to. serve in:this capacity, I appoint my son, LESTER G,`KISSINGER, JR. ,. to serve instead. L request that my ... Executor'be pernittec3 to serve-:without bond o.r surety... ,thereon. I a~t~rize ~ ~u~r to ~o any anc~ alb trims ~ihicYi in-his opinion :,. ~ ~~ ~~ l~et~-.;thy. istr~t~ ors' and, settlement . nf.: my ... :~ . _.. `' -~~~r i€~ludin~ci`"full"riahf; e~ a aL~~ri~v, without the order of arn.- co~:rt and upon such terms arx~ under such conditions as my Executor shall deem best for the proper settlement of my estate; to bargain, sell at public or private sale, convey, transfer, deed, mortgage, lease, exchange, pledge, manage and deal with any and all property belonging to my estate; to compromise, settle, adjust, release and discharge any and all obligations or claims in favor of or against my estate; and to borrow money for the payment of inheritance and estate taxes or for any other purpose. Without in any way limiting the scope of the powers enumerated herein of my Executor, I hereby specifically give to him full power to retain any and all securities or property owned by me at the time of my decease whenever, in his absolute and uncontrolled discretion, such a course shall seem to him to be best, without liability for depreciation or loss, and free from investment restrictions incident to executorship, whether imposed by common law or statute.;. In the execution of his duties and powers as Executor he shall have the power to comply with all legal requirements as to the execution and delivery of deeds and all other writings, documents or formalities without the order of any court; and he shall furnish a statement of receipts and disbursements at least annually to each person then entitled to receive income or property from my estate. IN WITNESS WI-iEREOF, I have at Carlisle Barracks, Pennsylvania, this .~ ~ .. day of .....~ ......., 1981, set my hand and U seal to this my LAST WILL AND TESTAMENTT consisting of three (3) typewritten pages. ....... `~.'... :!~?.~ -(SELF.,) (;;';; r f ... ANITA M. KISSINGER, Tes for Signed, sealed, published and declared by the Testator, ANITA M. KISSINGER, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence and in the presence bf each other, have hereunto subscribed our names as witnesses. NAME ~~ ADDRESS 5: ~ ~ ~~~~~.~~ (fir .~~~; `~`; 5 S T COMMONWEALTH OF PENNSYLVANIA)ss: COUNTY OF CLIlKBERL,AND ) I, ANITA M. KISSINGER, Testator, whose name is signed to the attached or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; that I signed it willingly; and that I signed it as my free and voluntary act for the purposes therein expressed. Sworn or affirmed to and acknowledged before me, by ANITA M. KISSINGER, the Testator, this .~:!,. day of ~u~..........., 1981. • ~ ~~ .. .::h Jam::'. ..... .. . ANITA M. KISSINGER, Testator (sue) - s •~~= =~= = =~'-G.~~~~'~:~..... . Notary Public-~ ~~ ~~ A Gabner, Notary Pubtic Affidavit ND~' Middleton Twp., Cumbe~and Coanty Member,Commission Expires Feb. 5, 1983 COMMONWEALTH OF PENDISYLVANIA) ss • Pennsylvania A;,sociaticn of tlot;;;~. COUNTY OF C'C>r~ERLAI~ID ) • We, ..,cl.GS~1 ,~: lid i/ Z..., C~~~-cC7v..~:.~;~;;rq ~... and - .~'Y1`chae~ :~. ['h~ ~1~::'~. .. , the witnesses whose names are signed to the attached or foregoing instrument, being duly qualified according to law, do depose and say that we were present and saw Testator sign and execute the instrument as her Last Will; that ANITA M. KISSINGER, signed willingly and that she executed it as her free and voluntary act for the purposes therein expressed; that each of us in the hearing and sight of the Testator signed the will as witnesses; and that to the best of our knowledge the Testator was at that time 18 or more years of age, of sound mind and under no constraint or undue influence. Sworn or affirmed to~nd~bscribed to before e by ~ U~ ~~ ~ .~1~:'.?'!Z., c,~/~~c:= ~! ..~.. ~"~~0 5 .., and ... ~~~t~c~~t~:~",1r:lr~rc~_ witnesses, this ~ day of ....~'j'~~:..... ,, 1981. ~ ~~ wI s .. ,~ Lz-,. ~.::.. ~.. WITN~ELSS~ , ~/I ,! WITNESS (SEAL') ..... - ~!: yl~2/• .... . Notary Public North Middl o ~ wp ~ Cu~ Puby~ My ~mmission Expires ~rfand ~ Member, Pen;s:~~.:,:. eb. 5. 1983 a~:::~,.,,.:- - REGISTER OF WILLS CUMBERLAND COUNTY PENNSYLVANIA CERTIFICATE OF GRANT OF LETTERS No . 2008- 00926 PA No . 21- 08- 0926 Estate Of : ANITA M KISSINGER (First, Middle, LasU Late Of : CAMP HILL BOROUGH CUMBERLAND COUNTY Deceased Social Security No: 202-36-5289 WHEREAS, on the 15th day of September 2008 an instrument dated May 29th 1981 was admitted to probate as the last will of AN/TA M K/SS/NGER /First Middle, Lastl late of CAMP H/LL BOROUGH, CUMBERLAND County, who died on the 5th day of September 2008 and WHEREAS, a true copy of the will as probated is annexed hereto. THEREFORE, I, GLENDA EARNER STRASBAUGH Register of Wills in and for CUMBERLAND County, in the Commonwealth of Pennsylvania, hereby certify that I have this day granted Letters TESTAMENTARY to; LESTER G KISSINGER JR who has duly qualified as EXECUTOR(RIX) and has agreed to administer the estate according to law, all of which fully appears of record in my office a t CUMBERLAND COUNTY COURT HOUSE, CARLISLE, PENNSYLVANIA. IN TESTIMONY WHEREOF, I have hereunto set my hand and affixed the seal of my office on the 75th day of September **NOTE** ALL NAMES ABOVE APPEAR (FIRST, MIDDLE, LAST) May 27, 2008 To: Rich Connell Dear Rich, As you can see from the enclosed, we were able to locate a Living Will and Power of Attorney for my mother, Anita Kissinger, in addition to the Last Will and Testament that we had all along. My brother, sister and I have some questions regarding these papers. 1. Regarding the Last Will and Testament: a. Is this something that a lawyer will help me (as Executor) execute, or do I just carry out my mom's wishes within the family structure? If a lawyer is used, can I use you to guide me or because this was drawn up, and probably is on file at the Judge Advocate's office at Carlisle Barracks, do I use them? (Do I have to notify them anyway when she has died and we're settling the estate?) b. Is it necessary to amend this document with a second person who can act as executor, in case something happens to me before I can carry out these duties. I am already the second on it, as my father who died in Oct 2005, was the initial executor. 2. Regarding the Power of Attorney, on which I am again the primary, and my sister is named as secondary: a. Can I use this Power of Attorney to start to carry out some of my mom's wishes, even before she is mentally and physically incapacitated? For instance, she is fixated on getting the 10 year old car she owns transferred to my brother for his 17 year old son to drive. I know AAA can help us do this, but can I act on my mom's behalf so she no longer has to spend her last energy to do it in person? b. What about other financial accounts? Specifically, she has some CDs that she thinks she might want to cash out now to make it easier to settle and distribute the estate later. Is this something I should act on? c. Are there any advantages to her doing some things now, such as giving away money, furniture, etc. so to have her three children avoid any inheritance taxes on any of this? d. In general, what is the inheritance tax and law and are there things we can do to make things simpler for my mom and us three children? For instance, if us three children agree that one of us would want my Mom's house and tivill buy out the others, should it be transferred to one of us only? Or does that get us into thorny inheritance areas? ~~ ~ v ri v 3. Regarding the Living Will: a. It appears to be in order to me, and my sister is named as surrogate to make decisions for my mother. But my father was named second, and since he is no longer with us, should my mom amend this to name me or my brother as a second in case my sister is unable to carry out her role? b. My mom is currently in the hospital and getting tired of it and all of the procedures. We were hoping to get her strength up so she can come home and have Hospice and us care for her there. But just yesterday she said she doesn't want to eat anymore (the drugs also cause her to lose her appetite), and appears to be fighting the doctors and giving up. I know she has a suppressed appetite, and forced nutrition will enable her to have one more (less invasive procedure) to finally come home and be there until she passes. However, the way I read the Living Will, she would be within her right to refuse any tube feeding. Are we up a creek on this, even though it is a minor thing medically at this point and would be of benefit in order for her to have some better days when she comes home? 4. If you can give us any other advice on things we should be aware of, it would be appreciated. At this point, we still hope to have my mom home and hopefully she will have a few more good weeks with us. But you may need to advise us beforehand, if my mom gets tired of life and all this "hospital stufi". Please let me know how best to proceed, Sincerely, Les Kissinger General Questions & Info Regarding Determining Estate Value (Answers from Rich Connell, or ING, or Prudential) 1. What date is used to determine the value of the estate's cash or property assets? ANSWER: Z'he date of mom's death, 9/5/2008. For example, the value of the CDs on that date; the value of any checking and savings accounts on that date; the value of any stock (ie, Prudential Shares); the value of the house; etc. 2. What if interest has increased the value of financial assets since 915/08, how is that treated? ANSWER: Interest is taxed when you file mom's personal 2008 Federal and State Tax returns (what John Bisbano will help with), as well as the Estate 2008 Federal and State tax returns. I'm not sure which return pays the tax. Probably the Estate return, since I believe Mom's income teclu~ically stopped when she died. For a Federal Return, there is a $2M exemption, so probably no tax there. For the state, they tax interest, so that probably is where we'll owe. (Will need to confirm with Bisbano, that the "Estate" pays the tax under the Estate EIN number versus mom's SSN.) 3. If one has to go back to one year before death to account for estate assets given away, what do I have to look for and include? ANSWER: Big items of several thousand dollars in value. Typically th ifts o eld b is of stocks and bonds. I would not have to account for small gifts such as birthday g (~ , g $100 to grandkids). NOTE: Anything with a paper trail would need to be accounted for (a car, insured jewelry, etc). 4. Is Life Insurance from ING (Reliastar) part of the Estate? ANSWER: No,...it goes directly to the beneficiaries. Per phone call with 1NG, they will issue a check to Uncle Jack for $2,500, the amount of the policy. It should not be taxable. Only interest would be taxable. But mom collected this interest as annual dividends so there should be iio accumulated interest on which to pay taxes. Uncle Jack can either sign over the check or write us a separate one. If he determines from his accountant that there would be some tax, we will let liim keep the estimated amount out of the $2,500, so nothing comes out of his pocket. 5. Mom had 39 shares of Prudential Stock. How do I determine its value? ANSWER: It is the value of the stock on the date of mom's death (9/5/08). This is the case even if the stock is ~r~orth less today, which it is. 1 called ING and the closing price on 9/5/08 was $78.74 (total value: $3,070.86 for 39 shares). On 9/23 it was selling at $77.76; on 10/1 it was $65.69 at noon; on 10/G, $49.74 at 3:45 PM; and on 10/8 it closed at 43.29 (a total value: $1688.31 for 39 shares). Obviously the value has decreased significantly due to the crisis in the financial markets. Whenever these get cashed in, the stock will probably be of less value than it was on 9/5/08. 6. The stock value assigned above does not seem fair given it has declined in value. Are there any other options? ANSWER: Prudential could transfer all 39 shares to one person, or 13 shares apiece to each child. Then whenever one of us cashes the stock in, probably at a loss in value from the value on 9/5/08, the loss is a "write off' in Capital Gains and Losses on your Income Tax. Per call with Prudential, they will pay an annual dividend on the shares at the end of the calendar year. I'm not sure if a dividend is warranted in 2008, but in any case, we have until then to decide what to do with the stock, ...cash it in or transfer it. One possibility is to transfer the shares to one sibling, and let the others get paid off for their shares. (If just Les and Jack get the stock (in accordance with question #9 below), then one would buy out the other and that person could let the stock atone in hopes of it rising in value again before cashing it in.) 7. Mom has two CDs in Members Is1 that I'm letting ride because the interest in her account is greater then cashing them in and putting them in an Estate savings account. How do I treat the increased value over the estate value of these CDs on 9/5/08? ANSWER: Same answer as to #2 above. The increase in interest revenue would be taxed when filing mom's 2008 State and Federal Income Tax return, and her 2008 Estate State and Federal Income ta~c returns. (Probably need to get John Bisbano to help here. Also, I assume if we don't "settle" the estate in 2008, then we might have to pay tax on any interest earned in 2009 as well) 8. June has been deeded the house. How does it show up as part of the Estate value, and how would any ta~c on it be paid? ANSWER: The house shows up as a property transfer within the year prior to mom's death. The money to pay the inheritance tax (4.5%) would come from monies in the estate. (In the case of 215 N 30th ST, valued at $225,000, that amount would be $10,125.) 9. June has been deeded the house, but is giving up any claim to the monies in the estate. Is there some legal document that needs to be signed, so that the executor (Les) is able to distribute the mo~iies legally (without follow-up claims) to just Les and Jack? ANSWER: A statement to the effect that June is forgoing any claim to the monies, would be signed at the time of settlement. However, it should be noted that if the inheritance tax on the house is paid out of the estate monies, then there is also less money ($10,125) available for Les and Jack. -Page7_of3 _ 10. June has indicated a willingness to make amends for the disproportionate distribution of the estate brought about by the deeding of the house to her. It is clear that the will directed equal sharing of the estate to all three siblings (1/3 each). How would this compensation be handled? ANSWER: The process is done outside the execution of the will. At least two options exist: (a) For sake of illustration, assume that the total value of the estate to be divided equally is $300K, the house being worth $200K and the monies $100K. Each child would get $100K. If Les and Jack split the monies ($SOK each), then June would give each of them another $SOK, thus making each person's share an equal $IOOK. This could be done without tax implications by a tax free gift of $12K per year per person. But this would take 4+ years to equalize the distribution of $SOK (without considering the inflation implications). More money can be gifted if the spouses are involved. That is, Andy and June can each give a $12K gift, making it $24K to each brother. June and Andy could also gift the spouses of each brother (Kay and Debbie) the same amount ($24K). Thus if the spouses are involved, in 2008, June and Andy could gift $48K to each brother and his wife, then on 1 Jan 2009, the remaining $2,000 could be gifted to each brother, making the total $50,000 to each sibling in a shorter period of time. (b) if money is not available to make the distribution equitable, the house could be re- deeded by June to all three siblings (June, Jack and Les), thus each owning 1/3 of the house. No money would exchange hands until the house is sold. Estimated Distribution Of Estate (lU/8/OS Total Estimated Estate Value (Rounded): $ 391,516.00 (Cash: $133,946] Minus Iiilieritance Tax w 5% off $ ( _ 12,~~9 ) * Minus estimate of funeral, lawyer and 2008 taxes ( Remainder to be distributed* $ 372,000.00 (Cash: $114,430) Version # 1: Distribution of June Jack Les Estate equally (3-Ways) $ 124,000 _ 124,000 124,000 _ ~~N~~ __~ ~~ Version # 2: Distribution of June Jack Les Estate (allocating house/property already given away; splitting cash 3 ways) House $ $ 225,000 570 22 - 500 500 Jewelry $ , - 4,000 Car Household/Gifts $ 4,600 - 400 (mower) Cash (3 ways) $ 38,143 38,143 643 42 38,143 39,043 TOTAL of Ver #2 $ 290,313 , _ _ _____ .._.. . _ Version # 3: Distribution of June Jack Les Estate (Ver #2 but cash split between Jack & Les) House $ $ 225,000 570 22 500 500 Jewelry $ , - 4,000 Car Household/Gifts $ 4,600 - 400 (mower) Cash (2 ways) $ - 57,215 715 61 57,215 58,115 TOTAL of Ver #3 $ 252,170 , - Version #4: Distribution of June Jack Les Estate based on House($225 ,000) & Cash ($114,4 30): $339,430/3=113,143 each. Assuming no compensation: House to June; Cash to Jack & Les House $ 225,000 - 215 57 57,215 $ Cash TOTAL cif Ver #4 $ _ 225,000 , 57,215 57,215 _ . - _ .- Version #5: Distribution of June Jack Les Estate with compensation based on Value of Hou se & Cash House $ 225,000 - 215 57 57,215 $ " Cash Compensation $ (-111,856) , 55,928 55,928 143 113 TOTAL of Ver #5 $ 113,144 113,143 , $ Jewelry 22,570 500 500 Car $ - 4,000 - - 400 (mower) Household/Gifts $ 4,600 . „ .., _ ___ _ ._.. _ .n 4~tual IY) I AL ~ ~ e n ~ ~ w 1~FV,~1`+ 1 7 '7 !.A : l t r,vY- _ I 1 4 114.5 _ _ _ Anita M Kissinger Est.itc, Value & Estimated Inheritance Tax (as of IU/8/~ (Value of Estate determined on date of death: 9/5/08) Money in Banks /Credit Union /Insurance (1) PNC Checking (as of 9/15 when last check $ 2,777.66 cleared) (2) Bank Of America CD (closed 9/19/08) $ 12,262.81 (deposited in Estate Acct on 9/25/08 (3) Members 1ST , Mom's old Acct: CD # 40 (as of 8/31) $ 63,913.29 Mom's old Acct: CD #41 (as of 8/31) $ l 6,121.23 Mom's old Acct: Regular Savings (8/31) $ 8,998.52 Mom's old Money Mgmt Accoi.uit (8/31) $ 24,140.93 Mom's old Checking (on 9/8; closed 9/15) $ 2,661.15 (4) Prudential Insurance (COMPUTERSHARE) ~ $ 86 070 3 (39 shares @ $78.74 on 9/5; now worth less) . , (5) ING (Reliastar} Life Insurance Policy $ 2,500.00* * Payable to Jakob Gandlmayr; should not be part of estate Anita M Kissin er Estate Value & Estimated Inheritance Tax Pro er (1) 1-louse (215 N 30`x' St) $ 225,000.00 (2) Jewelry (Insured on 2008 policy) $ 23,570.00 (3) Auto (at time of transfer to Jack) $ 4,000.00 (4) Household & gifts (within 1 Yr of Death) $ 5,000.00 (furniture, TVs, paintings, decorations, heirlooms, Kitchen items (glasses, dishes, silverware, pots & pans), microwave, refrigerator, china, washer/dryer, clothing, yard furniture, tools, baby crib(735), motiver (400)) TOTAL Property Value $ 257,570.00 TOTAL Money (pg 1 as of 10/8/08) $ 133,946.45 TOTAL Property Value (above) ~ 257,570.00 TOTAL Estimated Estate Value ~ 391,516.45 (Property and Money) Estimated Inheritance Tax (4.5%) ~ 17,618.24 Estimated Inheritance Tax w 5`% discount $ 16,737.33 (approx $480.91 on 1.7,61.8.24) -- -:_ :_. ___ =--Page ? of 2