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HomeMy WebLinkAbout12-16-10PETITION FOR PROBATE AND GRANT OF LETTERS REGISTER OF WILLS OF CUMBERLAND COUNTY, PENNSYLVANIA Estate of 18ENJAMIN H. SMART. III also known as File Number ~/ ~ / ~ ~ /~ ,Deceased Social Security Number 185-38-6205 Petitioner(s), who is/are 1 g years of age or older, apply(ies) for: (COMPLETE 'A' OR 'B' BELOW.) c a xr ^; O A. Probate and Grant of Letters Testameetary and aver that Petitioner(s) is /are the last Will ofthe Decedent dated 7/28/2006 and codicil(s) dated ed~t (State relevant circumstances, e.g., renunciation, death of executor, etc.) Except as follows, Decedent did not marry, was not divorced, and did not have a child bem or adopted after execution for probate, was not the victim of a killing and was never adjudicated an incapacitated person: ^ B. Gnat of Letters of Administntioo (/japplicable, enter: e.t.a.; d.b.n.c.t.a.; pendente life; dwante absentia; dwante mtnoritare) Petitioner(s) after a proper search has /have ascertained that Decedent left no Will and was survived by the following spouse (if any) and heirs: (!f Administration, e.t.a. or d.b.n.c.t.a., enter date of Will in Section A above and complete list of heirs.) Decedent was domiciled at death in CUmberlarld County, Pennsylvania, with his /her last principal residence at street address, tawn/ciry, township, county, state, Decedent, then 59 years of age, died on .12/11/2010 at 5930 Michaels Drive //i~~trildCrJo Two Cumberland ~`nirnty PA 17025 Decedent at death owned property with estimated values as follows: (If domiciled in PA) All personal property $ 40.000.00 (If not domiciled in PA) Personal property in Pennsylvania $ (If not domiciled in PA) Persona( property in County $ Value of real estate in Pennsylvania S situated as follows: Wherefore, Petitioner(s) respectfulty request(s) the probate of the last Will and Codicil(s) presented with this Petition and the grant of Letters in the appropriate form to the undersigned: Signature Typed or printed name and residence Leslie E. Smart Form Rw-oz rev. /0.!3.06 Page 1 of 2 (COMPLETE INALL CASES:) Attach additional sheets ff necessary. Oath of Personal Representative COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND SS The Petitioner(s) above-named swear(s) or affirm(s) that the statements in the foregoing Petition are true and correct to the best of the knowledge and belief of Petitioner(s) and that, as personal representative(s) of the Decedent, Petitioner(s) will well and truly administer the estate according to law. Sworn to or affirmed and subscribed before me the ~ day of o~ lU Signature of Personal Representative Signature of Personal Representative ~~© ~~ ~-s_~ ~'i 3 wa n rii r- File Number: /~1 "~Q ~~~7 Estate of 1dENJAMIN H. SMART. III ,Deceased Social Security Nu /m-ber:~185-38-6205 Date of Death: 12/11!2010 AND NOW,~~~1Y ~~.e ~~ ~ , in consideration of the foregoing Petition, satisfactory proof having been presented before me, IT IS DECREED that Letters TestamentaN are hereby granted to l~eslie E. Smart in the above estate and that the instrument(s) dated July 28. 2006 described in the Petition be admitted to probate and filed of record gs the last Will (apd Codicil(s)) of Decedent FEES ~ ~~lG/(r/((TiL_~/~(~~~~~~~5 Letters ~O • '~ Re~sterojWills G ............................. $ J Short Certificate(s) ............ $ ~ Attorney Signature: ~~«~ /fa~~ l ° Q Renunciation() .• ............. $ $ _~ Attorney Name: David H. Radcliff ! "" $ Supreme Court LD. No.: X5483 .... $ .... $ Address: 1011 Mumma Road Ste 2n~ .... $ $ Lemoyne •••• $ PA 17043 .... $ $ -~~'~- Telephone: 717 236-9318 TOTAL ............................. $ , Earn, Rw-oz rev. 10.13.06 Page 2 of 2 3s0 0 ~ - a+;°~, IOSBOS REV f01/07) /v - i~3/ LOCAL REGISTRAR'S CERTIFICATION OF DEATH WARNING: It is illegal to duplicate this copy by photostat or photograph. Fee for this certificate, $6.00 This is to certify that the information here given is correctly copied from an original Certificate of Death duly filed with me as Local Registrar. The origina] certificate will be fiorwarded to the State Vital Records Office for permanent filing. P 17045662 Certification Number ~E ~ 5 ~~~ Local Registrar Date Issued -_____.__ _ na -----.-._ - - ear o -~ O ~ ,;_'~ -- _..'_---._~-_______-- ~~'r0 ~C/3 O'f ~] L:3 o~~T s ~ c ~ " ~_ ~ ~~ N +n2me t'7 ~w COMMONYVEALTH OF PENNSYLVANIA . DEPARTMENT OF HEALTH .VITAL RECORDS "+ CERI7FICATE OF DEATH ,. cared we.e,n (~ I^eawtlom and eRCamplaa e7n raYaaa) ~' nYea1' b"' ~) 71TATE FO.E NIMABER Benjamin H. Smart .III 28q aeawe,a.ey,°„a„ ~.n.rawen Male ]85 °~"`a"'1tla °'"°'(""w"r"( 1ii/11 ~' aoerasb - 38 -+6205 December 1 1 2010 Y°liX+ 0rye Irue Neer '• elYreb Y 0a Pbee a OeYh 59 yr June ]6 1951 "°'0""` obey sa~,aorn Mechanicsburg, PA ^~ ^~~~+ ^~ ^ x.oN.eaarap.aoer, edFellyxar(Mmlbe0lrrl,ea.rerrYae,p„y Ibnle L1GRerrlre ^Oew-SF«yY Cumberland Ham den Tw 0.W"0'r°""""'°'r 01x4 ~ ^Yr Io.Rw:Aer,k,,, p P• 5930 Michaele Drive few,rrwcara bar•arr,war,a gY rr+ro °urb Rpell' er( ~ Wh i t e n. tlerrnry a der Irra a. ro ebY ,7 car 0eoeeae err b ri ,a. Deoeerh FArrr Cable S ~ Rp°asYrr,w,.W u.s. alm.e Fau.~ ~~,y~y (eaoMi r+r NdYY a°°, oYlgire( ,a Y,Iri abr: Y,m,a, xw. Y.Ibe, ,s. slwpna so,uY m w., d~. ~rYr ~wr~ p icer Verizon Company ^rr BIRO 1L "~+~ CNpe(7Ja&) weuere.aaorr(aa~ 'a a+°/~°rlab.r. ybwl,rre,y>„a,de) Married Leslie Errickaon oy30 Michaele Drive °"'w""i pp ~p,rrn Enola, PA 17025 ~ "`a"e Cumberland TrerrYpp 're~vr.0earreuweb Hampden ,n. caeey na ^ Ra uereYe uwd aaen 'r0' 1a FrrhRar IRnt ell7e, Y4YARq A°Ar leNb a Benjamin H. Smart JT. 1°.YrweNenr~tlp, a0eay.1lrl~aenenle( Cly/aoro a0e °e^e+reY Nrr(1)p~Rbq Freda Wevodau Leslie E. Smart ~~nl.nwbaAean,(ara,ca.ib,,,,,,m,,,b~ t7.Yrreaapew,a 5930 Michaele Drive Enola, PA 17025 ^ seY ^ Rarrrbm arb i car deaOrrOalalalAtlrbr °,n oreawl°rral Aearl, M,M 2,eRwaOYprM6„Mreea °r,rry~ arlray arrr Obrl 21a lmeen (ceY/ban YW,,p earl a~a~ rwaRrrr ~rYr~~~ ~ 'tirYr ~]rr^ r 17, 2010 Hollinger Cremator °9e saee enaAasera Mt. Holl S rip s PA 17065 ~ 7 F 012774-L Richardson Funeral Home Inc. 29 S. 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WewaDeeOi r baba rM ~~ ~ ~ ^ww ^IaYdr 77..owabyry A,aln, rr,rw am.0raa "r grvoavYa ~~a"rgMnewarl~,rn ar wr,rr HeW 11aro, Fre, 9beN, Faaory, ^ v« ~r0 ^ yr ^ rb ^ Aeaeae ^ vwli0 br,roral ~+ 7er a bj.y ase blur wan sm. e T °rr e~wua, •a IapaYl ^auar ^taae Rrroraerra ""'°01btl°'"M'7'rsvrl aa°furer arOey laver aN~bat car( ^ v« ^ w ~nwyaprra ^ ree~ga ^ °errbn 7Y. callerWrA Merl r aMr.l~e,y, . • TewyaN.rllnMerir rrMelrraarb«warrerplebrpl re ROlrrrddrbaroonpere Nrnae) r°'8gnr^ri° blerbyl. rrremrlr Mbreeryy ell rrlrrrrrea_---_-. ~ /n • *^w Or~YrIMw w~ilam~Yremine 0iarurpawlr4<aMVre.raawn~-------------------------7~-I 3R Ernr /~ • 01NOal~rAerlCti,p,rr 0r4 ar4 r/1bee.eMArblMrrWrYrrrrrrrr___-__--___ ^ / cab agree plats, aN. Yeerl OeMOrYarerirOr M/r bryp0er, 0,e0, rerMr60re.ale4rrNre.Ytlarbb _--__-- ~ 1• D01/ ~~ °rWNrYrwrreYy_ ^ 91. Neer rrM(aeya°eler7wrcanNllrQur aOrR(0ee 471 TypIRbl ~' Dr. Ra,7eah S,IraPmeeni MO . _ I O~L.II oZl / I /~I e0. ~e '°y'I""I 3912 Trifle Bd. /- ~ Camp Hill, PA 17011 0h0r0r Ramp ra 1..~ .S' 4~ ~ ~ e/1 THE 1 a - ~a~/ LAST WILL AND TESTAMENT OF BENJAMIN H. SMART III KNOW ALL MEN BY THESE PRESENTS, that I, BENJAMIN H. SMART III, of 5930 Michaele Drive, Enola Cumberland County, Pennsylvania, being in good health and of sound and disposing memory, do hereby make, declaze and publish this as my Last Will and Testament, hereby revoking all former Wills and Codicils heretofore made by me. Article First Payment of Debts and Tax Allocation I direct that all of my debts not barred by the statute of limitations, expenses of my last illness, funeral expenses, costs of administration and claims allowed in the administration of my estate shall be paid by my Executor hereinafter named, from my estate as soon after my decease as shall be found convenient. All estate, inheritance and death taxes, excluding any generation-skipping transfer tax, resulting from my death shall be paid without apportionment and without reimbursement from any person. Notwithstanding anything to the contrary in this Will, no death taxes payable as a result of my death shall be allocated to or paid from the Marital Trust or from any assets passing to my spouse and qualifying for the federal estate tax marital deduction unless my Executor has first used all other assets available to my Executor. a ~ ~ ~; " Article Second ~ rr' ~ ] My Children v~x ~' O v, 'Q ~ _ ~ I am married to LESLIE E. SMART. All references in this Will to "m sous " Y ~ ~ ~ 3 m -r~ e p a to her. rv ~:, ~ The names of my children are: c~ MEGAN E. SMART, LINDSEY M. SMART, HILARY J. SMART, and KELSEY D. SMART. .J/ T~ All references in this Will to "my children" aze to these four children. All references in this Will to "my descendants" are to my children and their descendants. Article Third Distribution of my Tangible Personal Property I give and bequeath my jewelry, clothing, household furnishings and fixtures, chinaware, silver, photographs, works of art, books, automobiles, sporting goods, artifacts relating to my hobbies, and all other tangible articles of household or personal use (not including cash, securities or trusts), together with any existing insurance thereon, to my wife, LESLIE E. SMART, if she survives me by thirty (30) days. Should my wife, LESLIE E. SMART, not be living on the thirty_first (31st) day after my death, I give and bequeath my jewelry, clothing, household furnishings and fixtures, chinawaze, silver, photographs, works of art, books, automobiles, sporting goods, artifacts relating to my hobbies, and all other tangible articles of household or personal use (not including cash, securities or trusts), together with any existing insurance thereon, as set forth in sepazate memoranda, which I shall place with my Will, to the persons therein designated. It is my intention that the memoranda shall not be construed to be a revocation of my Will in any respect, even though the memoranda aze executed after this Will. If such memoranda does not exist on the date of my death, I give and bequeath my jewelry, clothing, household funvshings and fixtures, chinawaze, silver, photographs, works of art, books, automobiles, sporting goods, artifacts relating to my hobbies, and all other tangible articles of household or personal use (not including cash, securities or trusts), together with any existing insurance thereon to my children, MEGAN E. SMART, LINDSEY M. SMART, HILARY J. SMART, and KELSEY D. SMART, to be divided among them as they may agree in as nearly equal shazes as possible, per stirpes. If they are unable to agree they shall make selections in turn with the oldest going first until the dollar value of the items selected is as nearly equal as possible. 8.~~~ Article Fourth Creation of Marital and Family Trusts If my spouse survives me, my Executor shall distribute the rest, residue and remainder of my estate as follows: Section 1. My Executor shall divide the remaining assets of my Estate into two separate trusts, to be known as the Marital Trust and the Family Trust. a. The Marital Trust shall be the fractional share of the property of my estate determined as follows: 1 • The numerator of the fractional share shall be the smallest amount which, if allowed as a marital deduction, would result in the least possible federal estate tax being payable as a result of my death, after allowing for the unified credit against federal estate tax (after taking into account adjusted taxable gifts, if any) as finally determined for federal estate tax purposes, and the credit for state death taxes (but only to the extent that the use of this credit does not require an increase in the state death taxes paid). The numerator shall be reduced by the value, for federal estate tax purposes, of any interest in property that qualifies for the federal estate tax marital deduction and which passes or has passed from me to my spouse other than under this Article Fourth. 2• The denominator of the fractional shaze shall consist of the value, as finally determined for federal estate tax purposes, of all of the property of my estate under this Will. b. The Family Trust shall consist of the balance of the property of my estate. Section 2. My Executor shall have complete authority to make allocations of the property of my estate between the Marital and Family Trusts. My Executor may, in its sole and absolute discretion, make allocations in cash or in kind, in undivided interests, or in any proportion thereof between the two trusts. a. My Executor shall not allocate any property or the proceeds from any property to the Marital Trust which would not qualify for the federal estate tax marital deduction in my estate. b. My Executor shall not allocate any policies of life insurance insuring the life of my spouse to the Marital Trust. ~,~ ~ 3 c. To the extent that there are insufficient assets qualifying for the marital deduction to fully fund the Marital Trust, the amount of the funding to the Marital Trust shall be reduced accordingly. Section 3. In making the computations necessary to determine the amount passing to the Marital Trust, my Executor shall use those values as finally determined for federal estate tax purposes. a. Property conveyed or assigned in kind to the Marital Trust shall be valued at its value as finally determined for federal estate tax purposes. However, in no event shall the aggregate value of the cash and property on the date or dates of distribution be less than the amount of the Marital Trust as finally determined in Section 1, Pazagraph a of this Article Fourth. b. When making the decision as to what property shall be allocated to the Marital Trust, my Executor shall consider the tax consequences and advisability of allocating property subject to foreign death tax, property on which a tax credit is available, or property which is income in respect of a decedent under applicable income or estate tax laws. Section 4. My spouse shall have the absolute and unequivocal right to compel my Trustee, at any time,. to convert any nonproductive property held as an asset of the Marital Trust to productive property. This right shall be exercised in writing delivered to my Trustee. Section 5. My spouse may disclaim all or any portion of any interest in property or power with respect to property passing to my spouse, or for my spouse's benefit, under this trust within the time and under the conditions permitted by law. My spouse's disclaimer may be exercised by delivering an irrevocable and unqualified refusal to accept all or any portion of such interest or power to my Trustee or Executor. If my spouse exercises this disclaimer with respect to all or any portion of the Marital Trust, the interest so disclaimed shall be added to the Family Trust. If my spouse exercises this disclaimer with respect to my spouse's interest in all or arty portion of the Family Trust, the interest that is disclaimed shall be disposed of under this Will as though my spouse had predeceased me. ~J. ~i~! T 4 Article Fifth Administration of Marital Trust My Trustees shall hold, administer, manage and distribute the assets of the Marital Trust as follows: Section 1. My Trustee shall pay to or apply for my spouse's benefit, at least annually during my spouse's lifetime, all of the net income from the Marital Trust. Section 2. My Trustee shall pay to or apply for my spouse's benefit such amounts from the principal of the Marital Trust as my spouse may at any time request in writing. No limitation shall be placed on my spouse as to either the amount of or reason for such invasion of principal. Section 3. My Trustee may also distribute to or for my spouse's benefit as much of the principal of the Marital Trust as my Trustee, in its sole and absolute discretion, shall consider necessary or advisable for my spouse's health, maintenance, education and support. My Trustee shall not take into consideration any income or resources of my spouse which are outside of the Marital and Family Trusts under this Will. Section 4. My spouse shall have the unlimited and unrestricted general power to appoint, by a valid last will and testament or by a valid living trust agreement, the entire principal and any accrued and undistributed net income of the Marital Trust as it exists at my spouse's death. In exercising this general power of appointment, my spouse shall specifically refer to this power. My spouse shall have the sole and exclusive right to exercise the general power of appointment. This general power of appointment specifically grants to my spouse the ri t to a to my spouse's own estate. It also specificall ~ pPotht property property among persons, co y grants to my spouse the right to appoint the rporations, or other entities in equal or unequal proportions, and on such terms and conditions, whether outright or in trust, as my spouse may elect. Section 5. The Marital Trust shall terminate at my spouse's death. My Trustee shall administer the unappointed balance or remainder of the Marital Trust as follows: a• My Trustee may, in its sole and absolute discretion, pay for the following expenses: The expenses of the last illness, funeral, and cremation of my spouse. The expenses of administering my spouse's estate. ~/7,~ 11 5 Any inheritance, estate, or other death taxes payable by reason of my spouse's death, together with interest and penalties thereon. My Trustee shall, to the extent that it is reasonable and prudent, coordinate with my spouse's personal representative to minimize expenses and taxes resulting from my spouse's death. b. If the Marital Trust holds United States Treasury Bonds eligible for redemption at the face amount in payment of the federal estate tax, my Trustee shall redeem the bonds to the extent necessary to pay any federal estate tax due by reason of my spouse's death. c. Without in any way limiting my Trustee's discretion, it is my desire that my Trustee not make any payments under this Section if those payments can be satisfied from assets of my spouse outside of the Marital Trust. Section 6. The unappointed balance or remainder of the Marital Trust shall be administered as provided in Article Seventh. Article Sigth Administration of Family Trust My Trustees shall hold, administer, manage and distribute the assets of the Family Trust as follows: Section 1. My Trustee shall pay to, or apply for the benefit of my spouse, at least quarterly during my spouse's lifetime, all of the net income from the Family Trust. Section 2. My Trustee may also distribute to or for the benefit of my spouse as much of the principal of the Family Trust as my Trustee, in its sole and absolute discretion, shall consider necessary or advisable for her health, maintenance, education and support. In making discretionary distributions of principal to my spouse, my Trustee shall preferably make all distributions of principal from the Marital Trust until it is exhausted, and only thereafter from the Family Trust. If my spouse has the power to remove a Trustee of this Family Trust, my Trustee shall not distribute any of the principal of the Family Trust that would in any mariner discharge my spouse's legal obligation to a beneficiary of the Family Trust. d~f' ~ , Section 3. On the last day of any calendar year, if my spouse is then living, my spouse shall have the noncumulative right to withdraw from the principal of the Family Trust an amount equal to the greater of $5,000 or 5 percent of the then mazlet value of the principal of the Family Trust. Without in any way limiting the noncumulative right of my spouse to withdraw principal pursuant to this Section, I suggest that this right not be exercised until the assets of the Marital Trust are exhausted. All requests for principal distributions pursuant to this Section shall be in writing delivered to my Trustee. Section 4. My spouse shall have the testamentary limited power to appoint all or any portion of the principal and undistributed income remaining in the Family Trust among my descendants, their spouses and chanties qualified under Section 2055 of the Infernal Revenue Code. My spouse may not exercise this testamentary limited power of appointment to appoint to herself, her estate, her creditors, or the creditors of her estate. My spouse may not exercise this testamentary limited power of appointment to create another power of appointment that, under the applicable local law, can be validly exercised so as to postpone the vesting of any estate or interest in such property fora .period ascertainable without regard to the date of the creation of the first power; furthermore, my spouse is prohibited from exercising the power to suspend the absolute ownership or power of alienation of the property for a period ascertainable without regazd to the date of the creation of the first power. I intend that this testamentary power of appointment be a limited power of appointment and not a general power of appointment as defined in Section 2041 of the Internal Revenue Code. Section 5.. The Family Trust shall terminate at the death of my spouse and my Trustee shall hold and administer the unappointed balance of the Family Trust, including any accrued and undistributed net income, under the Articles which follow. Article Seventh Creation of Shares for Children Section 1. If my spouse does not survive me, all the rest, residue and remainder of my estate wheresoever situate and of whatsoever nature and any property specifically directed to this Article, shall be distributed in equal shazes to my children MEGAN E. SMART, LINDSEY M. SMART, HILARY J. SMART, and KELSEY D. SMART, per stirpes. Article Eighth Administration for Minor Beneficiaries Section 1. Trustee's Discretion to Keep Property in Trust If any trust property becomes distributable to a beneficiary when the beneficiary is under 21 years of age, my Trustee may retain that beneficiary's share in a separate trust until he or she attains 21 years of age, and administered and distributed, as follows: a• My Trustee shall apply to or for the benefit of the beneficiary as much of the net income and principal of the trust as my Trustee, in its sole and absolute discretion, deems necessary or advisable for the beneficiary's education, health, maintenance, and support. In making any distributions of income and principal under this Article, my Trustee shall be mindful of, and take into consideration to the extent it deems necessary, any additional sources of income and principal available to the beneficiary which arise outside of this trust. Any net income not distributed to a beneficiary shall be accumulated and added to principal. b• My Trustee shall distribute the trust property to a beneficiary when he or she attains 21 years of age. c. If a beneficiary should die before the complete distribution of his or her trust, the trust shall terminate and all of the trust property shall be distributed to such persons, corporations, or other entities, including the beneficiary's own estate, in the manner in which the beneficiary shall elect. This general power of appointment must be exercised by the beneficiary by either a valid living trust or last will and testament, either of which specifically refers to this power of appointment. To the extent this general power of appointment is not exercised, my Trustee shall distribute the remaining trust property to the then living descendants of the beneficiary, per stirpes. Q~.~~ If the beneficiary has no then living descendants, my Trustee shall distribute the remaining trust property to my then living descendants in accordance with Article Seventh of this Will. If there are no then living beneficiaries under Article Seventh, my Trustee shall distribute the remaining trust property as provided in Article Ninth of this Will. d. My Trustees may make payments to or on behalf of any person who is the beneficiary of any trust hereunder but in no event, however, shall payments be made to any creditor or other such person because of anticipation of payment by the beneficiary, and any such claim made by way of anticipation by the beneficiary shall be of no validity or legal effect. e. My Trustees, at their discretion, may exhaust all of the principal and income in carrying out the purposes of this trust and should the amount held in trust be or become so small as to make it impractical or economically unfeasible to continue holding said amount in trust, the Trustee may, at their discretion, pay the total amount of said trust directly to the beneficiary or to a parent or guardian of said benefici amount in a savings account for the benefit of said minor until said minor be omes of age. Section 2. My Trustee may make the distributions called for in this Article in any one or more of the following ways: Directly to a beneficiary. To persons, corporations, or other entities for the use and benefit of the beneficiary. To an account in a commercial bank or savings institution in the name of the beneficiary, or in a form reserving the title, management, and custody of the account to a suitable person, corporation, or other entity for the use and benefit of the beneficiary. In any prudent form of annuity purchased for the use and benefit of the beneficiary. To any person or duly licensed financial institution, including my Trustee, as a custodian under the Uniform Transfers to Minors Act, or any similaz act, of any state, or in any manner allowed by any state statute dealing with gifts or distributions to minors or other individuals under a legal disability. To any guardian, agent under a valid power of attorney, or other person deemed by my Trustee to be responsible, and who has assumed the responsibility of caring for the beneficiary. ~~.~ 9 Article l~Tinth Ultimate Distribution Provisions If at any time there is no person, corporation, or other entity entitled to receive all or any part of my estate or any trust property, then that property shall be distributed to those persons who should be my heirs if I had died intestate owning such property. The distribution of property, for purposes of this Article, shall be determined by the laws of descent and distribution for intestate estates in the Commonwealth of Pennsylvania as such laws are in effect at the time of a distribution under this Article. Article Tenth The Resignation, Replacement and Succession of my Trustees The appointment, resignation, replacement, and succession of my Trustees shall be governed as follows: Section 1. I hereby nominate, constitute and appoint LESLIE E. SMART' and MEGAN E. SMART as Co-Trustees of the trusts created by this, my Last Will and Testament, without the necessity for posting security regazdless of state of residence. Section 2. Any Trustee may resign by giving thirty days written notice to any Co-Trustee then serving, which notice is also to be delivered to the successor Trustee, if any, and to all of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income from any trust created under this Will. If a beneficiary is a minor or is legally incapacitated, the notice shall be delivered to that beneficiary s guardian or other legal representative. Such resignation shall be effective upon the successor Trustee's written acknowledgment of his undertaking of the duties of a trustee. Section 3. Any Trustee may be removed by my spouse at any time after my death. My children may remove any Trustee . at any time after the death of my spouse and shall then designate a successor Trustee so that there aze always two Co-Trustees. The person or who have authority to remove a Trustee shall not be required to give any Trustee being moved any reason, cause, or ground for such removal. Notice of removal shall be made in writing and delivered to the Trustee and shall be effective upon the designation of a successor corporate Trustee. Section 4. Trustees shall be replaced in the following manner: 10 a. If either LESLIE E. SMART or MEGAN E, SMART is unwilling or unable to serve as Trustee, or cannot continue to serve for any reason, then I nominate, constitute and appoint the following to be the successor Trustee in the order named: First, LINDSEY M. SMART, Second, HILARY J. SMART, and Third, KELSEY D. SMART b. In the event that the named individual trustees are unwilling or unable to serve as Trustee, are removed or cannot continue to serve for any reason, then a majority of the beneficiaries then eligible to receive mandatory or discretionary distributions of income under the trust or trust share shall forthwith name a corporate fiduciary so that there aze two Co--Trustees for all trusts, unless a corporate fiduciary would be serving as sole Trustee. If a majority of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income under this trust cannot agree on a corporate fiduciary, any removed Trustee or beneficiary can petition a court of competent jurisdiction, ex pane, to designate a corporate fiduciary as a Trustee. The court that designates the successor Trustee shall not acquire any jurisdiction over any trust created under this Will, except to the extent necessary to name a corporate fiduciary as a successor Trustee. Section 5. Any corporate fiduciary appointed by a court of competent jurisdiction as a Trustee must be a bank or trust company situated in the United States having trust powers under applicable federal or state law. Such fiduciary shall have a combined capital and surplus of at least 2 million dollazs. Section 6. Any successor Trustee, whether corporate or individual, shall have all of the rights, powers, and privileges, and be subject to all of the obligations and duties, both discretionary and ministerial, as given to the original Trustees. Any successor Trustee shall be subject to any restrictions imposed on the original Trustees. No successor Trustee shall be required to examine the accounts, records, and acts of any previous Trustees. No successor Trustee shall in any way be responsible for any act or omission to act on the part of any previous Trustees. Section 7. Notwithstanding any other provisions of this, my Last Will and Testament, my Trustee may not exercise or participate in the exercise of discretion with respect to the distribution of income or principal to any person my Trustee is legally obligated to support, to the extent the distribution dischazges the support obligation of my Trustee. ~~~~ 11 Article Eleventh Guardian for Minor Child In the event that my spouse, LESLIE E. SMART, shall predecease me, I he;eby designate and appoint MEGAN E. SMART as guardian of the person and of the estate for KELSEY D. SMART for the duration of the minority of KELSEY D. SMART, and said guardian may retain custody of our child in any locality. Article Twelfth Appointment of Executor I hereby nominate, constitute, and appoint my wife, LESLIE E. SMART, as Executor of this, my Last Will and Testament. In the event that my spouse shall predecease me, or be unwilling or unable to act as my Executor, as aforesaid, then I nominate, constitute and appoint MEGAN E. SMART, without necessity for posting security regazdless of state of residence, as Executor of this, my Last Will and Testament. In the event that MEGAN E. SMART shall predecease me, or be unwilling or unable to act as my Executor, as aforesaid, then I nominate, constitute and appoint LINDSEY M. SMART, without necessity for posting security regardless of state of residence, as Executor of this, my Last Will and Testament. In the event that LINDSEY M. SMART shall predecease me, or be unwilling or unable to act as my Executor, as aforesaid, then I nominate, constitute and appoint ffiLARY J. SMART, without necessity for posting security regardless of state of residence, as Executor of this, my Last Will and Testament. In the event that HILARY J. SMART shall predecease me, or be unwilling or unable to act as my Executor, as aforesaid, then I nominate, constitute and appoint KELSEY D. SMART, without necessity for posting security regardless of state of residence, as Executor of this, my Last Will and Testament. All references to the Executor herein shall be applicable to said substitute Executor. Article Thirteenth My Executor's and Trustee's Administrative and Investment Powers My Executor and Trustee shall have, in addition to the powers and authority conferred upon them bylaw, the following additional powers and authority: 1. To sell at public or private sale, exchange, lease, mortgage or pledge any property, real or personal, at any time constituting a portion of a trust or my estate, and upon such terms and conditions as the Executor or Trustee shall deem wise. 2. To invest any money at any time in such bonds, stocks, notes, real estate, mortgages, life insurance, annuities or other securities (including proprietary mutual funds of the corporate ®,,~T iz Executor or Trustee), or such property, real or personal, as the Executor or Trustee shall deem wise, without being limited by any statutes or rule of law regazding investments by the Executor or Trustee. 3. To retain, without ittcurring any liability, as investments, any pro time of my death, as long as they deem it wise, and even thou ~~ °wned by me at the Property an Executor or Trustee would purchase as an investmen Sand even though to retain such property might violate sound diversification principles; and to make any division, distribution or partition of the estate or trust property in cash or kind, or partly in cash and partly in kind, pro rata or non-pro rata. 4. To cause any security or other property which may constitute a portion of a trust or of my estate to be issued, held or registered in their own name, or in the name of a nominee, or in such form that title will pass by delivery. 5. To consent to the reorganization, consolidation, readjustment of the financial structure, or sale of the assets of any corporation or other organization, the securities of which constitute a portion of a trust or of my estate, and to take any action with reference to such securities which, in the opinion of the Executor or Trustee is necessary to obtain the benefit of any such reorganization, consolidation, readjustment or sale; to exercise any conversion privilege or subscription right given to them as owner of any securities constituting a portion of a trust or of my estate resulting from any reorganization, consolidation, readjustment, sale, conversion or subscription. 6. To pay all costs, taxes, chazges and expenses in connection with the administration of a trust or of my estate, including compensation to a corporate fiduciary. A corporate Executor or corporate Trustee shall receive compensation for the performance of its functions hereunder in accordance with its schedule of fees in effect from time to time durin the services are performed. Individual trustees are expected to serve without compe sn anon which its 7. To determine what is "income" and what is "principal" hereunder, and their decision thereon shall be final; and to purchase securities at a premium or discount, and to apply or charge said premium or discount against income or principal as the Executor or Trustee may determine. 8. To borrow money from any person, firm or corporation, including any corporation acting as an Executor or Trustee hereunder, for the purpose of protecting and preserving or improving my estate or trust hereunder; to execute promissory notes or other obligations for amounts so borrowed upon such terms and conditions as they deem advisable. 9. To employ legal counsel, accountants, brokers, investment advisors, custodians, managers and other agents and employees and to pay them reasonable compensation out of my estate or any funds held hereunder to which said compensation is attributable. 10. To carry on any business owned or controlled by me at my death for whatever period of time they shall think proper, and they shall have the power to do any and all things they deem bG. ~/ 13 necessary or appropriate, including the power to close out, liquidate or sell the business at such time and upon such terms as to them shall seem best. 11. My Executor may exercise any available elections with regazd to state or federal income, inheritance, estate, succession, or gift tax law. My Executor shall, in its absolute discretion, determine whether to elect under Section 2056(b)(7) of the Internal Revenue Code of 1986 or corresponding provision in effect at my death, to qualify any portion of the Marital Trust for the federal estate tax marital deduction. Generally, I anticipate that my Executor will elect to minimize the estate tax payable by my estate. However, I would expect that some consideration be given to the estate tax payable in my spouse's estate upon her death, especially if she should die prior to the time the election is made. The determination of my Executor with respect to the exercise of the election shall be conclusive upon all affected persons. 12. The Executor or Trustee may, but shall not be required to, prepaze and file accountings with any Court. Prior to delivering all of the property of any trust hereunder to a successor Trustee or to making any partial or complete distribution of trust principal or of my estate assets, the Executor or Trustee may require an approval of its accounting either by a release and discharge by the beneficiary or beneficiaries of any such trust or by a Court of competent jurisdiction. All of the Executor's or Trustee's fees and expenses (including reasonable attorney's fees) attributable to any such accounting and approval shall be paid by such trust. 13. The Trustee in its sole and absolute discretion may terminate any trust hereunder at any time it determines that the aggregate value of the trust property renders continued administration economically infeasible and, upon such termination, shall pay over the remaining trust property to the income beneficiary or, proportionately, the income beneficiaries thereof (or to a parent or legal guazdian in the case of a minor beneficiary). Upon such termination, the remainder interest in such trust shall be .extinguished and the Trustee shall be accountable with respect to such trust only to such income beneficiary or beneficiaries (or to a parent or legal guardian in the case of minor beneficiary). 14. To minimize any tax in respect of any trust, or any beneficiary thereof, or for such other purpose as it deems appropriate, the Trustee may in its sole and absolute discretion remove all or any part of the property of, or the situs of administration of, such trust from one jurisdiction to another and elect, by an instrument filed with the trust records, that thereafter such trust shall be construed, regulated and governed as to administration by the laws of such other jurisdiction. I5. To do all other acts in their judgment necessary or desirable for the proper and advantageous management, investment and distribution of a trust or of my estate. ,C7 ~~ 14 Article Fourteenth General Provisions Section 1. Protective Clause To the fullest extent permitted by law, the interests of all the beneficiaries in the various trusts and trust property subject to this Will, shall not be alienated, pledged, anticipated, assigned, or encumbered unless specifically authorized by the terms of this Will. Such interests, while they remain trust property, shall not be subject to legal process or to the claims of any creditors. Section 2. Survivorship Presumptions If the order of my death and my spouse's death cannot be established by proof, my spouse shall be deemed to have survived me. Section 3. Changing the Trust Sites After my death, the sites of any trust under this Will may be changed by the unanimous consent of all of the beneficiaries then eligible to receive mandatory or discretionary distributions of net income from the trust. If such consent is obtained, the beneficiaries shall notify my Trustee in writing of such change of trust sites, and shall if necessary designate a successor corporate fiduciary in the new sites. This notice shall constitute removal of the current Trustee if appropriate, and any successor corporate Trustee shall assume its duties as provided under this Will. A change in sites under this Section shall be final and binding, and shall not be subject to judicial review. Section 4. Headings of Articles, Sections, and Pazagraphs The headings of Articles, Sections, and Paragraphs used within this Will are included solely for the convenience and reference of the reader. They shall have no significance in the interpretation or construction of this Will. Section 5. Notices All notices required to be given in this Will shall be made in writing by either: Personally delivering notice to the party requiring it, and securing a written receipt, or Mailing notice by certified United States mail, return receipt requested, to the last known address of the party requiring notice. ~~~~~ 15 The effective date of the notice shall be the date of the written receipt or the date of the return receipt, if received, or if not, the date it would have normally been received via certified mail, provided there is evidence of mailing. Section 6. Delivery For purposes of this Will "delivery" shall mean: Personal delivery to any party, or Delivery by certified United States mail, return receipt requested to the party making delivery. The effective date of delivery shall be the date of personal delivery or the date of the return receipt, if received, or if not, the date it would have normally been received via certified mail, provided there is evidence of mailing. IN WITNESS WHEREOF, I, BENJAMIN H. SMART III, have affixed my signature to this, my Last Will and Testament, typewritten on si ~} heets of paper ch I have identified at the bottom of each page by my initials, the d'' ~ day of ~L!/ 2006. • ``~f BE JAMIN MART III The preceding instrument consisting of this and fifteen other typewritten pages, each identified by the initials of the Testator, BENJAMIN H. SMART III, was on this day and date thereof signed, published and declared by BENJAMIN H. SMART III, the Testator therein named, as and for his Last Will, in the presence of us who, at his request, in his presence, and in the presence of each other have subscribed our names as witnesses ~~ - ~ " ~-~~~--, ~ ~~ 16 COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SS I, BENJAMIN H. SMART III, 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. ~ ~%~ BEN AMIN H. S T III Sworn or Trmed to and a~wledged before me, by BENJAMIN H. SMART III, the Testator the Zday of Q.,y 2006. NOTARIAL SEAL DAVID H RADCLIFF Notary public LEMOYNE BOROUGH, CUMBERLAND COUNTY My Commission Expires Jun 29, 2008 Notary public COMMONWEALTH OF PENNSYLVANIA: COUNTY OF CUMBERLAND SS We 8~~~ ~y.ti,~~I,J and~u E ~ ASS "` witnesses whose names are signed to the attached or foregoing instrument, bein dul the according to law, do depose and say that we were present and saw Testator sign and execute the instrument as his Last Will; that he signed willingly and that he executed it as his 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 eighteen or more years of age, of sound mind and under no constraint or undue influence. _.-~.. Sworn or affi d to and subscribed to before me by 13gf//,p/~ ~ ~/~~~~~ and - ~~` ~~` ~'v'V~ ~~/'~~~ witnesses, this Z ~"~ day of ~ --J Y,.2o06. NOTARIAL SEAL c<C ~~~~~C DAVID H RADCLIFF AL) Notary public Notary Public LEMOYNE BOROUGH, CUMBERLAND COUNTY My Commission Expires Jun 29, 2008 ~~~T n