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HomeMy WebLinkAbout04-23-13 C> C= rn 2C rn C-) co ::0 GI) C-) :x7 yt r- rn M r- 2: M Cn ::a ptz C> C) r., C> C"> rn Cn Q C7) COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION NO. 21-12-0248 ------------------------------------------------------------------------------ ESTATE OF EDNA M. HOWARD, DECEASED Late of Cumberland County , PA ------------------------------------------------------------------------------ FAMILY SETTLEMENT AGREEMENT AND RELEASE OF JOHN C. OSZUSTOWICZ, EXECUTOR Date of Death: January 16, 2012 Letters Granted: February 24, 2012 First Complete Advertisement of Grant of Letters: March 16, 2012 Account stated to February 12, 2013 John C Oszustowicz, Esq. 104 South Hanover Street Carlisle, PA 17013 (717) 243-7437 AGREEMENT TO INDEMNIFY, RECEIPT, AND RELEASE THIS AGREEMENT, by and among John C. Oszustowicz, Executor of the Estate of Edna M. Howard, Deceased and George W. Howard, Harvey McCommon, Lois McCommon and Robert Surfield. WHEREAS, Edna M. Howard died January 16, 2012, testate, a resident of Cumberland County,Pennsylvania; and WHEREAS, the Last Will and Testament of Edna M. Howard dated May 13, 2010, was duly probated in the Office of the Register of Wills of Cumberland County, Pennsylvania as appears of record at Number 21-12-0248 (a copy of the Will is attached hereto and marked Exhibit A); and WHEREAS, Letters Testamentary were issued to John C. Oszustowicz on February 24, 2012; and WHEREAS, said Executor has duly administered the estate according to the laws of the Commonwealth of Pennsylvania; and WHEREAS, in ITEM 3: She gave and bequeathed to her husband, George W. Howard, all of her tangible personal property. WHEREAS, in ITEM 4: She gave and bequeathed all the rest, residue and remainder of her estate unto John C. Oszustowicz, in trust. WHEREAS, Harvey McCommon, Lois McCommon and Robert Surfield were beneficiaries of Payable Upon Death bank accounts WHEREAS, John C. Oszustowicz, George W. Howard, Harvey McCommon, Lois McCommon and Robert Surfield., have been furnished with a complete listing of the estate assets,receipts and disbursements; and WHEREAS, it is the desire of the parties to this Agreement that final distribution of this estate be accomplished without a formal accounting to the Orphans' Court Division of the Court of Common Pleas of Cumberland County, it being the desire of the parties to avoid the expense, delay and publicity of a formal accounting. NOW,THEREFORE, in consideration of the mutual promises, covenants and agreements recited herein,the parties do agree as follows: 1. John C. Oszustowicz , George W. Howard, Harvey McCommon, Lois McCommon and Robert Surfield., do hereby release and forever discharge John C. Oszustowicz, Executor, from any and all liability which he had or may have or which may from time to time arise in connection with his service as Executor of the Estate of Edna M. Howard, Deceased, and hereby authorize and request the Orphans' Court Division to charge the same against their shares of said estate, and in consideration for said distribution, hereby agree to refund any amounts so distributed which may be required to fully discharge any tax liability of the estate, debts of the decedent, or administration expenses. 2. Each party to this Agreement acknowledges that this Agreement shall be indexed and recorded in the estate proceedings and that the terms hereof shall be binding upon their respective heirs, successors, executors, administrators and assigns. This Agreement shall be governed by the laws of the Commonwealth of Pennsylvania. DATED this Z Ord day of 12V A -1' 1 2013. W Witness John M C ustowicz, Executor 1A LLZ 7, Witness Jo szu towicz, Trustee Witness-// George W.41oward, Beneficiary a).3 Witness Harvey McCommon, Beneficiary �e-nl"nnj Witness Lois McCommon, Beneficiary C, r, - �rdAs/�/-4� - Witness Ao-b-ert SurfiJ—Id,Pneficiary &hl b A- /N LAST WILL AND TESTAMENT ? .. ; li `, OF CLP-R;; OF EDNA M. HOWARD C !=' 'x=51 i ; (;`?, PA 1, EDNA M. HOWARD, of Cumberland County, Pennsylvania, do make, publish and declare this as and for my Last Will and Testament, hereby expressly revoking all wills and codicils made by me heretofore, and dispose of my estate as follows: ITEM 1: 1 direct the payment of my just debts and funeral expenses, including a suitable and proper grave marker, as soon as conveniently can be done following my decease. ITEM 2: 1 direct that all State and Federal Transfer Inheritance Tax, Estate Tax, Succession Tax or any other tax, including any interest, assessments or penalties thereon, that may become due and payable by virtue of my death, or by virtue of the passing of any property either under my Last Will and Testament, or in any other manner, shall be paid from my residuary estate, just as if such taxes were my debts, and no beneficiary shall be required to pay or refund any part thereof. ITEM 3: My tangible personal property (excluding money, securities and the like) and my motor vehicles, together with all insurance relating thereto, I give and bequeath unto my husband, GEORGE W. HOWARD, if he survives me. Should my husband fail to survive me, then all of such items of tangible personal property not disposed of shall be sold and distributed as part of my residuary estate. ITEM 4: All the rest, residue and remainder of my estate of whatsoever nature and wheresoever situate, I give, devise and bequeath unto JOHN C. OSZUSTOWICZ, OSZUSTOWICZ, to be held by my Trustee in a separate and distinct trust for each such beneficiary for the following purposes: A. My Trustee shall accumulate the net income earned on each trust and shall add the same to the corpus of said trust. B. In the sole and uncontrolled discretion of my Trustee, he may utilize both the income and/or principal of each trust for the health, maintenance, education and support of the beneficiary of that trust. It is my desire, but not my direction, that my Trustee encourage any and all of the beneficiaries of the trusts created by this Will to further their education along those lines which interest each beneficiary and provide for higher education (college, professional, technical or any other forms of higher education) of any or all of my beneficiaries, up to the extent or limit of principal and income of the trust of which he or she is a beneficiary. C. My Trustee may pay over from time to time such of the principal and/or income of the beneficiary's trust as he, she or their guardian may request in writing, provided the intended use is for a purpose which the Trustee believes will promote his or her support, such as the purchase of a home, establishing a business or profession, wedding expenses, etc. D. My Trustee may make expenditures for any beneficiaries without the intervention of a guardian. E. My Trustee may pay the reasonable burial expenses, including a suitable and proper grave marker, for the beneficiary of any trust that has not been terminated by previous distribution, and if my Trustee, in the exercise of his sole discretion, chooses to 3 pay the same, he shall charge the expense thereof against the trust of that beneficiary. F. The beneficiary of each such trust shall have the right to withdraw in one or more installments the balance of his or her trust, after attaining the age of twenty-five (25) years by giving written notice to Trustee. G. In the event any beneficiary or beneficiaries subject to the provisions of this Item die prior to having received full distribution of his or her trust, leaving issue surviving, my Trustee shall divide the balance then remaining in the deceased beneficiary's trust into as many equal shares as the deceased beneficiary leaves issue surviving and shall hold each portion, so divided, in a separate and distinct trust for each such issue under the same terms and conditions as my Trustee held the trust of the deceased beneficiary which was divided pursuant to this provision. H. In the event any beneficiary or beneficiaries subject to the provisions of this Item dies prior to having received full distribution of his or her trust, without leaving issue surviving, the balance of his or her trust shall go to the surviving sisters and brothers of said beneficiary and to the surviving issue of any deceased sisters and brothers of said beneficiary, per stirpes. The share of the recipient shall be added to the trust already existing for said recipient and shall be administered and/or distributed in accordance with its terms, providing, however, that if such trust has already been terminated by prior distribution, then said shares shall be distributed outright to such recipients. And if no trust already exists for any such recipient, the share of such recipient shall be held in trust, administered and distributed by the Trustee herein named and in the manner herein provided for beneficiaries of trusts. I. And in the event there are no beneficiaries who qualify under the provisions of the 4 previous paragraph by representation or otherwise, then all balances remaining shall be distributed as set forth in ITEM 4. ITEM 6: In the administration of my estate and the trusts herein created, my Executor and Trustee shall have the following powers without leave of court in addition to, but not in limitation of, the powers granted by law to the Executors and Trustees of estates and trusts, which powers shall continue after the termination of my estate and the trust or trusts provided for herein until actual distribution of the assets: A. To receive in the estate and to receive and retain in the trusts any assets, real or personal, to which I may be entitled at the time of my death, which my Executor or Trustee may deem for the best interest of the estate or trusts without being required to convert said assets into so-called 'legal investments". B. To invest and reinvest in such securities as a prudent man of intelligence and discretion would buy for himself for investment, and not for speculation, giving due regard to the safety of the principal and the adequacy of the income, and without being limited to the so-called 'legal investment" of the Commonwealth of Pennsylvania, said investment authority to include the right to invest in any Discretionary or Legal Common Trust Fund that may be administered and managed by my Corporate Executor or Corporate Trustee. C. To sell or buy real estate without Court order at public or private sale; to make, execute and deliver or receive good and sufficient deeds of conveyance and give or receive good title therefor; to reinvest the proceeds as if they had originated in personal property; to mortgage or encumber any real estate held in trust, or comprising part of my estate, borrowing the necessary funds from any source, including themselves; to improve any property or otherwise expend principal funds for the upkeep and welfare of any 5 properties; to release, vacate and abandon the same; to grant and acquire licenses and easements with respect thereto; to make improvements to or upon the same; and in general to do all things necessary in the management of the properties as if they are the owners thereof, including the right to let property and to make leases for any term including beyond the terms of the trusts. The purchaser shall not be required to see to the proper application of proceeds but may pay the same over to the Executor or Trustee selling the same. D. To make distribution hereunder in cash or of property and securities in kind at fair market value at the time of such distribution and in such a manner as to be fair, equitable and just to all concerned. Distributions of property and securities are not required to be identical among the beneficiaries and shares, and some may receive one type of property and security while another may receive another type of property or security. E. Income accrued on any property received by my Trustee either at the inception of the trust or as an addition thereto shall be treated as income and not as principal. Upon the death of any beneficiary of income, any undistributed income in the hands of my Trustee held for such beneficiary at the time of his or her death shall be paid to the person or persons for whose benefit the principal producing such income is continued in trust or to whom it is distributed under the terms of this will. F. To exercise any election or privilege given by the federal and other tax laws, including but not limited to, the consent on gift tax returns to have any gift made by my spouse considered as made in part by me for gift tax purposes, the filing of joint income tax returns, the payment of any portion of income or gift tax due under such returns, the election of the alternate valuation for federal estate tax purposes, the election to claim deductions for federal estate tax or for federal income tax purposes, the allocation of the 6 federal generation-skipping tax exemption and the election of the method of payment of pension, profit-sharing, HR-10, individual retirement account, and any other similar benefits. In addition, my fiduciaries, in their sole discretion, may make or not make equitable adjustment among the beneficiaries, without the consent of the beneficiaries, for the exercise or non-exercise of any election or privileges. G. To disclaim and/or renounce any amounts to which I may be entitled from any trust or estate of which I am a beneficiary if my fiduciary, in such fiduciary's sole discretion, believes such renunciation or disclaimer would be appropriate. ITEM 7: If, for any reason, a guardian over the estate of a beneficiary or beneficiaries is needed or required, my Trustee, JOHN C. OSZUSTOWICZ (or his successor), shall be the guardian of the estate of such beneficiary or beneficiaries, with the same rights, powers, privileges, duties and responsibilities as I have given to him as Trustee. ITEM! 8: 1 nominate, constitute and appoint JOHN C. OSZUSTOWICZ to be the sole Executor of this, my Last Will and Testament. If he is unable or unwilling to serve as Executor, i appoint my brother, HARVEY McCOMMON to be Executor of this, my Last Will and Testament. If HARVEY McCOMMON is unable or unwilling to serve or continue to serve, I appoint TRICIA D. NAYLOR to be Executrix. No Executor or Trustee shall be required to give bond. ITEM 9: If JOHN C. OSZUSTOWICZ, is unable or unwilling to serve as Trustee, my brother HARVEY McCOMMON shall serve as Trustee. If HARVEY McCOMMON is unable or unwilling to serve or continue to serve TRICIA D. NAYLOR, shall serve as Trustee. Anyone who serves, as Trustee shall have the power to appoint a successor Trustee should there be a vacancy in the office of Trustee and none of the persons appointed herein is able or willing to serve. Such Trustee shall exercise this power of appointment by placing in the written records of the trust the name of the person(s)who shall serve. If more than one Trustee appoints a successor, then the last such appointment shall be effective. Any successor Trustee shall have the power to appoint subsequent successor Trustees in the same manner as set forth herein. ITEM 10: Wherever the context requires, the masculine gender shall include the feminine and neuter gender, and vice versa, and the singular shall include the plural, and vice versa. IN WITNESS WHEREOF, I have hereunto set my hand and seal this i day of May, 2010. EDNA M. HOWARD Signed, sealed, published, acknowledged and declared by the above-named Testatrix, EDNA M. HOWARD, as and for her Last Will and Testament, in the presence of us, who, at her request, in her presence and in the presence of each other, have hereunto subscribed our names as witnesses thereto. Of ` OfItr ,, w COMMONWEALTH OF PENNSYLVANIA ) } SS: COUNTY OF CUMBERLAND } I, EDNA M. HOWARD, Testatrix, who signed the foregoing instrument, having been duly qualified according to law, acknowledge that I signed and executed the instrument as my free and voluntary act for the purposes therein contained. EDNA M. HOWARD Sworn to or affirmed and acknowledged before me by EDNA M. HOWARD the Testatrix, this �day of May, 2010. COMMONWEALTH OF PENNSYLVANIA NotwW S" Kimberly ti Leo,No Public L � e0rb, m W county Notary Public aW Canmis w bow OcL 10,1013 COMMONWEALTH OF PENNSYLVANIA } } SS: COUNTY OF CUMBERLAND } We, the undersigned witnesses who signed the foregoing instrument, being duly qualified according to law, depose and say that we were present and saw Testatrix sign and execute the instrument as her Last Will and Testament; that she signed and executed it willingly as her free and voluntary act for the purposes therein expressed; that each of us in her sight and hearing signed the Will as witnesses; that Testatrix is known to each of us; and that to the best of our knowledge and observation the Testatrix was at the time of sound mind and under no constraint or undue influence. rr s Ytt, Sworn to or affirmed and subscribed to before me by<k�hn C Qszus-by\j is z and,l„r-i r ka _t-� rx t s' witnesses, this L21"ay of May, 201 . COMMONWEALTH OF PENNSYLVANIA taakarial Seal Notary Public �,`r ,tea c h4y Cwwrh$ow 6q*es Oct.10,2013 9