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Home My WebLink About02-24-11REAGER & ADLER, PC By: Peter R. Wilson, Esquire Attorney I.D. No. 87655 Email: PWilson(7a Rea~erAdlerPC corn 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Attorneys for Objector IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, r-a O ?" = -r; ~, ; *~, rri t-? rn rv ,,,, c~i ~ ~ ;:: ~:,1 ;, )i.VAN~, ~ ~ ~' -o `n ~ r,: ORPHANS' COURT DIVISION N0.2008-00906 OBJECTIONS TO FIRST AND FINAL ACCOUNT AND PROPOSED DISTRIBUTION OF ESTATE Sean M. Noonan and Patrick J. Noonan (collectively referred to hereinafter as the "Objector"), by and through their undersigned counsel, hereby file these Objections to the First and Final Account and Proposed Distribution of Estate of Thomas P. Noonan, Executor for the Estate of Robert J. Noonan, Jr., Deceased, for the following reasons: A. LATE FILING OF INHERITANCE TAX RETURNS The Executor committed patent error by failing to timely file the inheritance tax return. 2. As a result of the Executor's patent error, the beneficiaries, including the Objector, have suffered a loss in the amount of $1,383.00, which includes the tax penalty assessed for the late filing ($587.00), as well as the loss of the five percent (5%) discount ($806.00). WHEREFORE, the Objector respectfully requests this Court to award a surcharge against the Executor in the amount of $1,383.00 for the loss occasioned by the Executor's patent error. m B. EXECUTOR'S RESIDING IN THE DECEDENT'S HOME RENT-FREE 3. The Executor breached his duty of loyalty to the Estate by engaging in self- dealing by residing in the Decedent's home from approximately late July, 2008, to early July, 2009. 4. The First and Final Account of the Executor does not include any payments or credits to the Estate from the Executor for the period of time that the Executor resided at the Decedent's residence. 5. As a result of the Executor's breach of its fiduciary duty through self-dealing, the beneficiaries, including the Objector, have suffered a loss in the approximate amount of $13,200.00, which represents eleven (11) months at approximately $1,200.00 per month (a typical rental rate for a townhome in the market area of Decedent's former property). WHEREFORE, the Objector respectfully requests this Court to award a surcharge against the Executor in the amount of $13,200.00 for the loss occasioned by the Executor's self- dealing. C. INVESTMENT LOSS OCCASIONED BY FIDUCIARY'S INATTENTION 6. From the date of death, July 14, 2008, until December 31, 2008, Decedent's investment accounts sustained losses in the total amount of $53,805.00, which is set forth as follows: Account Fidelity IRA Balance Acct No. 345-989681 Fidelity Brokerage Account No. 147-472840 Morgan Stanley IRA Acct.No. 410 018792140 Date of Death Value December 2008 Value Loss $230,811.00 $191,367.00 $39,444.00 $47,800.00 $40,995.00 $6,805.00 $39,523.00 $31,697.00 $7,556.00 TOTAL LOSS: $53,805.00 7. From the date of death until December of 2008, the Objector, through its personal representative, Jalayne Noonan, repeatedly requested that Executor turn over control of the 2 funds from the foregoing accounts, all of which were non-testamentary investment accounts which the Decedent had named Objector as beneficiary, to the Objector. 8. The Executor repeatedly ignored the Objector's requests to either turn over control over the aforementioned accounts or to provide the proceeds from these accounts to Objector. 9. Finally, on December 5, 2008, the Executor turned over control of these three (3) accounts to the Objector, and, after the Objector was finally able to access these accounts in January, 2009, the collective value of these three (3) accounts had declined by $53,805.00. 10. Moreoever, during the intervening period from date of death through December of 2008, Executor made no attempt to change the investment mix of the three accounts, to liquidate, or to otherwise protect the value of these accounts despite the historic stock market upheaval that occurred in the fall of 2008. 11. The Executor's failure to review the investments in these accounts, to transfer control of these assets to the Objector, or to otherwise take steps to protect these investments, constitutes a breach of Executor's fiduciary duties to preserve the principal for the beneficiaries; to review investments; to exercise reasonable care, skill and caution; and his obligations under 20 Pa.C.S. Chapter 72. WHEREFORE, the Objector respectfully requests this Court to award a surcharge against the Executor in the amount of $53,805.00, which represents the loss occasioned by the Executor's breach of its fiduciary responsibilities. D. EXECUTOR'S COMMISSION AND ATTORNEY'S FEES ARE EXCESSIVE 12. The proposed distribution of an Executor's commission in the amount of $19,668.68 and attorney's fees in the amount of $20,446.68 are excessive in comparison to the size and relative straightforward nature of the Estate. 13. In addition, considering the aforementioned breaches of the duties owed to the Objector by the Executor, including, but not limited to, delays and losses arising from the Executor's 3 breach of his duties and his patent error in filing a late inheritance tax return, the amounts of the proposed distributions for the Executor's commission and attorney's fees are not justified under the circumstances. 14. As a result of the proposed excessive Executor's commission, as well as the proposed excessive attorney's fees sought by counsel for the Estate, the beneficiaries, including the Objector, have suffered a loss in an amount to be determined by this Honorable Court. WHEREFORE, the Objector respectfully requests this Court to reduce the distributions for the Executor's commission and the attorney's fees to reasonable amounts in consideration of the limited size and relatively uncomplicated nature of the Estate, as well as the Executor's repeated failure to fulfill his fiduciary responsibilities to the beneficiaries. Respectfully submitted, Date: February ~' , 2011 4 REAGE LER, PC sy: P t R. Wilson, Esquire Atty. I.D.#87655 2331 Market Street Camp Hill, PA 17011 Telephone: (717) 763-1383 Facsimile: (717) 730-7366 Email: PWilsonna,Rea~erAdlerPc com Attorneys for Objector VERIFICATION I, Jalayne Noonan, verify that I am authorized to make this verification on behalf of Sean M. Noonan and Patrick J. Noonan, that the facts contained in the foregoing Objections to First and Final Account and Proposed Distribution of Estate are true and correct to the best of my knowledge, information and belief, and that the same are made subject to the penalties of 18 Pa. C.S.A. § 4904 relating to unsworn falsification to authorities. Date: February ~ ~ 2611 ayne N ~---->~-:a ersonal Representative of Sean M. Noonan and Patrick J. Noonan 5 CERTIFICATE OF SERVICE I, Peter R. Wilson, Esquire, attorney for the Objector, hereby certify that I have served the foregoing document upon the persons and in the manner indicated below, which service satisfied the requirements of Pa.O.C.R. No. 6.10 and C.C.O.C.R. No. 6.10-1: First Class Mail, Posta a Prepaid: Peter J. Russo, Esquire 5006 East Trindle Road, Suite 100 Mechanicsburg, PA 17050 REAGER & ADLER. PC Dated: February ~, 2011 By: meter R. Wilson, Esquire Attorney I.D. 87655 2331 Market Street Gamp Hill, PA 17011 Phone: (717)763-1383 Fax: (717) 730-7366 Email: pwilsonna,reageradlerpc.com Attorneys for Objector 6