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HomeMy WebLinkAbout08-18-11 (2)LAST WILL AND TESTAMENT C7 :_ , _~ t ~ ~: ~ ` ~:: ~'' I, KAY I. KUHNS, of North Newton Township, Cumberland County, Pennsylvania, declare this to be my Last Will and Testament and revoke any Will or Codicil prE;viously made by me. ITEM I: I direct that all my just debts (except as may be barred by a Statute of Limitations) and my funeral expenses (including my gravemarker and expenses of my last: illness) shall be paid from my residuary estate as soon as practicable after my decease as a part of the administration of my estate. ITEM II: I am presently married to JAMES B. KUHNS and I have 3 children: JILL I. KUHNS, MARY E. EUTZY and JANET E. KUHNS. Janet has special needs and I make this will in this context. ITEM III: I devise and bequeath all of my estate of every nature and wherever situate to my husband, JAMES B. KUHNS. ITEM IV: If my husband, JAMES B. KUHNS, does not survive, I devise and bequeath all of my Estate of every nature and wherever situate, whether passing under this Will or otherwise, in equal shares to my children: JILL I. KUHNS, MARY E. EUTZY and JANET E. KUHNS, provided however that the share for my daughter, JANET E. KUHNS, shall be held by my Trustee hereinafter named, IN TRUST, for the benefit of my daughter, JANET' E. KUHNS, and for the following uses and purposes and subject to the terms and conditions hereinafter set forth. A. In providing for the establishment of this Trust for the benefit of my daughter, JANET E. KUHNS, I am aware of the special circumstances and incapacities and infirmities affecting her which may cause or will cause her t ~d special and skilled care 'l..-~ ,~ -, and/or services and to be eligible for various local, state and ~ federal benefits and entitlements, as well as possible assistance provided by various private agencies and organizations. The primary purpose of this Trust is to assure that JANET achieves her maximum potential and leads as full, independent and normal a life as is possible. To that end, it is my wish that the Trustees view themselves not only as Trustees in the traditional sense, but also as protector, guardian and advocate for JANET. B. The Trustees within their complete and unfettered discretion, shall apply the income and principal of the Trust in furtherance of the purposes of the Trust as set forth in subparagraph A above and generally to enhance the life of my slaughter, JANET, if living, but only to the extent not provided for by insurance or by Feder,~l, State, local or any other assistance programs of any nature whatsoever, including Supplemental Security Income benefits under the Federal Income Maintenance Program as then existing. The Trustees shall provide Trust payments of such an amount as not to preclude payment of the maximum amounts of any Federal, State, local or other assistance programs, as noted above. The income and principal of the Trust may therefore bf; used as judged necessary and appropriate as a supplement to, but not to supplant, such FE;deral, State, local or other assistance, and to the extent the income of this Trust is not used, the Trustees may accumulate the income and add it to the principal of the Trust. V'Jhile the Trust for JANET, remains in existence, the Trustees may also expend such amounts of income and principal therefrom as they, in their sole discretion, may deem necessary fir the health, maintenance, education and support of my other children, but only if the Tr~~stees determine that such beneficiary does not have sufficient funds otherwise available. Nevertheless, this Trust is ~~ ~ 2 '`~ "~ for the primary benefit of JANET, and her present and future needs shall be considered first. C. The Trustees are empowered to collect and expend on behalf of JANET, all governmental financial assistance benefits to which she is other~Nise entitled; provided that such funds shall not be co-mingled with the other funds of this Trust. D. In the exercise of the Trustees' discretion to expenci income and principal for JANET, the Trustees are directed that consideration should be given to any Letters of Instruction which I may, from time to time, direct to the Trustees. Such Letters of Instruction, if any, shall be interpreted based upon the express purposes stated herein, and shall not be interpreted to expand the powers and limitations of the Trustees hereof. E. In the exercise of discretion with respect to income and principal distributions for JANET, if any, the Trustees shall bear in mind my expres;- desire to preserve, to the greatest extent possible, this Trust's assets for eventual distribution to my descendants rather than JANET, whether outright or in Trust. The foregoing sentence is in no way intended to limit the sole and absolute discretion of the Trustees with respect to such distributions or to give any remainderman any right to challenge any distribution made by the Trustees in the proper exercise of such discretion. Rather, this sentence is intended to aid the Trustees and any Court or administrative agency in properly interpreting my intent in establishing this Trust, namely, that the needs of JANET, be provided for only to the extent that governmental benefits and entitlements and other resources are either unavailable, inadequate, or have been exhausted. F. If any governmental agency determines that this Trust; is an "available resource" to be utilized and exhausted to pay for services for JANET otherwise provided by public 3 ~~ ~r funding, then the Trustees may, at their complete discretion, elect to terminate this Trust, in which case the Trust assets may be distributed to my remainder beneficiaries in accordance with subparagraph J below. The other provisions hereof notwithstanding, if my Executor and/or Trustee at any time determines that it would be in the best interest of JANET, the assets going or held for the benefit of JANET may be transferrf;d to a "Payback Trust" or "Pooled Trust" for JANET's benefit as the same are provided for in the provisions of 42 U.S.C. § 1396 p(d)(4)(A) and 42 U.S.C. § 1396 p(d)(4)(C) respectiively. G. During the life of JANET, no portion of this Trust either principal or income, shall be subject to anticipation, pledge, assignment or obligation of JANET nor be subject to any reimbursement, execution, attachment, levy or sequestration or other claims of or interference from the creditors of JANET or of her estate oar of anyone who may be obligated for her support, including any government or govenumental agency or private agency which has provided benefits or services to JANET. H. During the life of JANET, subject to the considerations as stated above, my Trustee may expend upon JANET so much of the income or principal of the Trust as Trustee shall determine. Trustee shall have sole and absolute discretion in determining whether such expenditure for JANET is to be made. It is my desiire that the Trustee provide such resources and experiences as will contribute to and make JANET'S life as pleasant, comfortable and happy as is feasible. Nothing herein shall preclude the Trustee from purchasing those services and items which promote JANET'S happiness, welfare and development, including, but not limited to, vacation and recreation trips away from places of residence, expenses for traveling companions if requested or necessary, entertainment /„~ expenses, supplemental medical and dental expenses, social services expenses, transportation costs, private room, telephone and television services, a mechanical bed, an electric wheelchair, personal care services, and the like. It is my intention that this Trust be a Supplemental Needs Trust (and not a Support Trust) for the supplemental and special needs of JANET. Irrespective of any other provisions of this Trust, the Trustees are prohibited from making and shall not have the power to make ~~ny distribution which will cause a reduction or loss of benefits for JANET. I. During the life of JANET, all payments from this Trust which go to her direct benefit shall be direct payments to the person or entities supplying goods or services to her at the request of the Trustee. J. Upon the death of JANET (or upon my death if JANET shall not survive me), this Trust shall terminate and all principal and any accumulated. and undistributed income shall be distributed in equal shares unto my daughters, JILL I. KUHNS and MARY E. EUTZY, provided, however, that should either of them be deceased at the time of the death of JANET (or upon my death if JANET shall not survive me), heir share shall be distributed to her issue, per stirpes, living on such date, and in default of ;such then living issue, her share shall be added to the shares for my other child or the then living issue of any deceased child. K. If any portion of this Trust shall become distributable to a beneficiary who has not attained the age of twenty-five (25) years, the Trustee may in its sole absolute discretion either pay over such Principal and any accrued or undistributed income therefrom at any time to the guardian(s) of the property of such beneficiary, or to a custodian for such f~ ~ s ~~' beneficiary under the Pa. Uniform Transfers for Minors Act, which custodian may be my Executor or be selected by my Executor, retain the same for such beneficiary, IN SEPARATE TRUST, until he or she attains the age of twenty-dive (25) years. In case of such retention, the Trustee may use or apply so much of the net income and Principal as it deems necessary or advisable from time to time for support, health and medical care, and education (including college education, both undergraduate and graduate) of such beneficiary, or may make payment for these purposes, without further obligation or responsibility to see to the proper expenditure thereof, directly to such beneficiary or to such beneficiary's parent or to any person taking care of such beneficiary. Any Principal or income not so applied shall be distributed to such beneficiary ~~bsolutely when he or she attains the age of twenty-five (25) years. If he or she dies before attaining age twenty-five (25), such share shall be distributed to his or her personal represerrtative, discharged of trust. ITEM V: Should my daughter, JANET E. KUHNS, predecease me or d:ie on or before the thirtieth day following my death, I devise and bequeath the residue of my estate of every nature and wherever situate in equal shares to my daughters, JILL I. KUHNS and l~iARY E. EUTZY, as shall survive. Should either of my daughters predecease me but leaving descendants who do survive me, such descendants shall receive, per stirpes, the share that such daughter would have received had she so survived me. ITEM VI: If any property passes outright (either under this Will or otherwise) to a minor (which shall be defined as anyone under twenty-five (25) years of age) and with respect to which I am authorized to appoint a guardian and have not otherwise specifically done so, I decline to appoint a guardian but instead authorize my Executor to distribute such property 1:o}a Custodian selected by ~~ ~~ 6 ^~ my Executor (and my Executor may act as such Custodian) as Custodian for the minor under the Pennsylvania Uniform Transfers to Minors Act. Provided, however, that this appointment shall not supersede the right of any fiduciary to distribute a share where possible to the minor or to another for the minor's benefit. ITEM VII: I direct that all taxes that may be assessed in consequena~ of my death, of whatever nature and by whatever jurisdiction imposed, shall be paid from my residuary estate as part of the expenses of the administration of my estate. ITEM VIII: I appoint my daughters, JILL I. KUHNS and MARY E. I~UTZY , Co-Executors of this my Last Will. ITEM IX: I appoint my daughters, JILL I. KUHNS and MARY E. E~UTZY, Co-Trustees of any trusts created by this my Last Will. ITEM X: Any fiduciary under this Will shall have the following powers in addition to those vested in them by law and by other provisions of my Will applicable to all property whether principal or income, including property held for minors, exercisable without Court approval, and effective until actual distribution of all property: A. To retain any and all of the assets of my estate, real or personal, without regard to any principle of diversification of risk. B. To invest in all forms of property, including stock, common trust funds and mortgage investment funds without restriction to investments authorized for Pennsylvania fiduciaries as they deem proper, without regard to any principle of diversification of risk. C. To sell at public or private sale, to exchange or to lc;ase for any period of time any real or personal property and to give options for sales, exchanges or leases, for such ~ J/~ `~ prices and upon such terms or conditions as they deem proper. D. To allocate receipts and expenses to principal or income or partly to each as they from time to time think proper. E. My Fiduciaries shall have all of the powers contained in Chapter 72 of the Pennsylvania Probate, Estates and Fiduciaries Code 20 PA. CS § 7201 and following. F. To compromise any claim or controversy. G. To distribute in cash or in kind or partly in each. H. To hold property in their names without designation of any fiduciary capacity or in the name of a nominee or unregistered. I. If there is no corporate fiduciary acting hereunder, my fiduciary may designate a corporation (regardless of where organized or headquartered) with fiduciary powers to act as agent or custodian hereunder, may delegate to it such duties as may be appropriate (including investment recommendation duties), may pay to it reasonable compensation for its services, and may discharge it with or without cause. J. To treat the entire trust estate as a common fund for the purpose of investment, notwithstanding any provision herein for division thereof into shares or separate trusts. K. Should the principal of any trust herein provided for be or become so small that, in the Trustee's discretion, establishment or continuance of trust is inadvisable, my Trustee or my personal representative may make immediate distribution of the then remaining principal and any accumulated or undistributed income outrigh~~t to the person or persons then entitled to income and in the proportions they are then entitled to such income. If any such person is then a minor, distribution may be made to that person's guardian, or to a 8 ~~/ ,~ person selected by the trustee to be custodian for such person until the age of twenty-five (25) years under the Pennsylvania Uniform Transfers to Minors ~~ct. L. If there are co-fiduciaries serving hereunder, they may delegate any and all management duties and responsibilities to one of them. M:y co-fiduciaries may, for example, designate one of them to maintain a bank account or accounts, and in that instance the signature of only that fiduciary shall be required to open and~~ maintain such account, to deposit funds to such account and to write checks on such account. Other than as specified herein, the authority of my co-fiduciaries shall be exercisable jointly and severally. M. The individual fiduciaries shall have jointly and severally all the powers given to the fiduciaries, except that no individual fiduciary shall participate in the exercise of any discretion to determine the propriety or amounts of payments of income or principal to himself or herself or to any person to whom he or she is legally c-bligated, or possess any of the incidents of ownership with respect to any policy of insurance on his or her life, and the remaining fiduciaries alone shall exercise that discretion and possess those incidents of ownership. ITEM XI: I direct that my Executor, Trustee or Custodian or their successors shall not be required to give bond for the faithful performance of their duties in any jL~risdiction. ITEM XII: My individual fiduciary shall be entitled to reasonable compensation for his or her services rendered from time to time and to reimbursement of out of pocket expenses. ITEM XIII: The interests of the beneficiaries hereunder shall not be subject to anticipation or to voluntary or involuntary alienation. ~~ 9 IN WITNESS WHEREOF, I hereunto set my hand and seal to this my Last Will and Testament, written on eleven (11) sheets of paper, dated this ~ d _ day of ~~.c~ .zoii. (SEAL) KAY I. K S, x J The preceding instrument, consisting of this and ten (10) other typewritten pages, each identified by the signature or initials of the Testatrix, was on the day and date thereof signed, published and declared by the Testatrix therein named, as and for her Last Will, in the presence of us, who, at her request, in her presence, and in the presence of each other have subscribed our names as witnesses hereto. residing at ~ ~~ . , --~C.lf residing at - ~ 10 COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. I, KAY I. KUHNS, the Testatrix whose name is signed to the attache;d or foregoing instrument, having been duly qualified according to law, do hereby acknowledge that I signed and executed the instrument as my Last Will; and that I signed it willingly and as my free and voluntary act for the purposes therein expressed. (SEAL) T ~' ~, ~ S Sworn to or ~rme and c owledged ~~ f ' l `~`" ~1C ~ns the before me by , Testatrix, this ~ ay of ~ , 2011. Notary Public COMMONWEALTH OF PENNSYLVANIA ____ Notarial Seal AnrE.s=- :;, `,r,~agPfer, Notary Public: Shippey > ~;~~~ ~~ ~~`~; ~~,.umberland County ~,I,mmiss~~. ~ ~ ~Y., es May 15, 2011 Mom ''~; , ns1-iviynia gie>:fen of N~etaries COMMONWEALTH OF PENNSYLVANIA COUNTY OF CUMBERLAND ss. We, I S and ~ ,DC~ / /~ ,the witness whose names _~~ are signed to the attached or foregoing instrument, being duly q lifted according to law, do depose and say that we were present and saw the Testatrix sign and execute the instrument as her Last Will; that the Testatrix signed willingly and executed it as her free and voluntary act for the purposes therein expressed; that each subscribing witness in the hearing and sight of the Testatrix signed the Will as a witness; and that to the best of our knowledge the Testatrix was at that time eighteen (18) or more years of age and of sound mind and under no constraint or undue: influence. ~ ~r~ Sworn to or aff rmed ands cribed to before me by ~ U~.S and - f ,witnesses, this ~j~ ay of , 2011. otary Public COMMONWEALTH OF PENNSYLVANIA Notarlai Seal Angela M. Schaeffer, Notary Public Shippensburg Born, CumbE:riand County Nty Commisst~n Expires Nlay 15, 2011 Member, Pennsylvania Assaeiaiien of Notaries 11