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HomeMy WebLinkAbout12-17-14 John A. Feichtel, EsquiYe Attorney I.D. No. 77426 � � � Daniel L. Sullivan, Esquii�e � Q `� rn � Attorney I.D. No. 34548 � � � � � Saidis Sullivan &Rogers � ��,, r�'- �. �;� � 635 North 12`h Street, Suite 400 � " � � '� � ;�. Cy'� :` .' -� �.� Lemoyne, PA 17043 r:� �-,, � --� ,:� -,-� Phone: (717) 612-5800 " = �� � � �-�'- `> <=- 'V'`� r� Fax: (717) 612-5805 Attdrn�for P@�tio�rrn � _,:J N � Q �� IN RE: : 1N THE COURT OF COMMON PLEAS ESTATE OF RUSSELL E. FAILOR, SR., : CUMBERLAND COUNTY, DECEASED : PENNSYLVANIA JOANNE M. FAILOR, : NO.: �I '��I �I I�� Petitioner : ORPHANS' COURT DIVISION PETITION TO ADMIT PHOTOCOPY OF DESTROYED LAST WILL AND TESTAMENT TO PROBATE AND NOW, comes Petitioner, Joanne M. Failor,by and through her counsel, Saidis Sullivan &Rogers, and files this Petition to Admit Photocopy of Destroyed Last Will and Testament to Probate, averring as follows: 1. Russell E. Failor, Sr. ("Decedent"), died May 24, 2013, a resident of Cumberland County. 2. A certain writing alleged to be the Last Will and Testament of Decedent was executed by Decedent on February 25, 2010 (the "Original Will"). A true and correct copy of the Original Will is attached hereto as Exhibit A and incorporated herein as if set forth in full. 3. Article First of the Original Will devised and bequeathed the residuary estate to Decedent's wife, Joanne M. Failor. 4. If there are no claims by creditors and no question of distribution requiring the intervention of an administrator, no formal administration of the estate is necessary. See, Gibboney v. Derrick, 338 Pa. 317 (1940); Walworth v. Abel, 52 Pa. 370 (1866); and McLean's Executors v. Wade, 53 Pa. 146 (1865). 5. Letters Testamentary based upon the Original Will were not issued to the named executor, Joanne M. Failor, Petitioner herein, because she was the sole beneficiary and there were no questions regarding the distribution. 6. Petitioner, upon advice of counsel, did not probate the Original Will and retitled assets into her own name according to the terms of the Original Will. 7. After conveying the assets to herself as the sole beneficiary under the Original Will, Petitioner then destroyed the Original Will. 8. Decedent did not destroy or revoke the Original Will during his lifetime. 9. Subsequently, an unknown trust asset payable to Decedent was discovered, requiring the issuance of Letters Testamentary to claim the asset on behalf of Decedent's estate. 10. Petitioner desires to admit a photocopy of the Original Will of Decedent, which photocopy is attached hereto as Exhibit A. The Executor named in the Original Will is Petitioner. 11. Petitioner is the only party in interest under the Original Will, serving as the sole heir of Decedent. 12. The photocopy of the Original Will attached hereto as Exhibit A is a true and correct copy of the Original Will that Petitioner and wife of Decedent used to distribute the assets to herself. 2 13. Affidavits of James D. Bogar and Jennifer R. Hipp attesting to the fact that they witnessed Decedent execute the Original Will are attached hereto as Exhibits B and C, respectively. WHEREFORE, Petitioner requests that this Honorable Court enter an order admitting a copy of the Original Will to probate and the granting of Letters Testamentary thereon. Respectfully submitted, SAIDIS SULLIVAN & ROGERS , �.�:,.m ..�--- � � - w... ..,_ t .<- Dated: December � , 2014 Bp:-�--- -- N A. F -� Attorney I.D. #77426 DANIEL L. SULLIVAN Attorney LD. #34548 Counsel for Petitioner 3 VERIFICATION I,Joanne M. Failor,the undersigned, acknowledge that: 1. I am an adult individual and Petitioner herein; 2. The averments set forth in the foregoing Petition are true and correct to the best of my knowledge, information, and belief; and 3. I am aware that false statements herein are made subject to the penalties of 18 Pa. C.S. § 4904, relating to unsworn falsification to authorities. �v \ o.��- J e M. Failor �jf:' �,/ . LAST �TILL AND TESTAMENT OF RVSSELL E. FAILOR I, RUSSELL E. FAILOR, ot Mechanicsburg, Cu.mberland County, Pennsylvania, make, publish and decl.are th.is as ancl for � my Last Will and Testament, hereby revoking a11 other Wills and Codici�.s heretofore made by me. FIRST: = devise and bequeath all the rest, residue and remainder of my esta�e of whate�rer nature and wherever situate, including any property over which T hold power of appointinent and together wi�h any insura�.ce policies thereon, unto my wi�e, JOANNE M. FAILOR, provided she survives me by si�ty ( 60) days. SECOND: Shoul.d my wife, JOANN� NS. FAILOR, predecease me or die on or before the six�y-first (61st) day following my death, I devise and bequea�h al1 the rest, residue and remainder of my estate o� whateve� nat�u.re and wherever sa.tuate, including ' az�.y proper�y over which I ho1.d power o� appointment and together with any insurance policies thereon, as follows: I (A} I gi.ve and bequeath an.y and a11 interest �hat � have, at the time of my death, in Russ ' s Auto & Trailer Sales, � LLC, a.ts successors or assa.gns and/or any rela�.ed bus�ness entiti.es, to my son, RICK A. FAILOR. Should my son, RICK A. � FAILOR, desire �o cease operations of Russ ' s Auto & 'Frailer � Sales, LLC, its successors or assigns ax�.dlor any related business en�ities, either immediately after my death or at any subsequent time, T direct that Russ' s Auto & Trailer Sa1es, ZLC, i.ts succes- � sors or assa.gns and/or any related business entities , along wi�h al1 bank accounts mai.ntaa.ned by or for the ber_efit of Russ ' s Auto & TraiJ.er Sales, LLC, its successors ar assigns and/or any related busine�s en�i�ies, of whatever type or wherever main- tained be sold, with the net proceeds thereof being diva.ded as follows : 3' (i) Fifty (500) percent thereof to my son, RICK A. FATLOR, or his issue per stirpes by represen�ation. (ii) Fifty (500} percent thereof, in equal shares, to my children, RUSSELL E. FAILOR, JR. , VICKIE �. BRUBAKER and RICK A. FAILOR, or theix issue per stirpes by representation. . (B) Should my son, RICK A. FAZLOR, predecease me, I devise and bequeath any and all interest that 2 have, at the time of my death, in Russ ' s Auto & Trailer Sales, LLC, its successors or assigns and/or any related business en�ities, along with all bank acCounts maintained by or for the benefit of Russ ' s Auto & Trailer Sales , LLC, its successors or assigns and/ar any related '' business entities, of whatever type or wherever maintained be ', so1d, wi�h the net proceeds thereof being divided as follows: (i} One-Third (1/3) �herea�, in equal shares, to the issue o� RTCK �. FAILOR. ' (ii) One-Third (1/3) thereof to RUSSELL E, FAILOR, JR. , or his issue per stirpes by representation. (iii) One-Third {1/3} thereof to VICKIE L. BRUBAKER, or her issue pex stirpes by representation. (C) T give and devise real es�ate awned by me, same � being known and numbered as 117 North Enola Road, Enola, > Cumberland County, Pennsylvania �7025 (Tax Parcel No. 09-14-0832- 267) to my son, RICK A. FAILOR, for as long as he wishes to use 1 it in conjunctian with the operation of Russ ` s Auto & Txai�er � Sa1es, LLC, its successors or assigns and/or any related business � e��ities. Should my son, RICK A. FAILOR, cease the use of this � property in conjunction with the operation of Russ' s Auto & � Trailer Sales, LLC, its successoxs or assigns and/or any related � business �n�ities, either immediately after my death or at any 2 � , fl• subsequent time, I direct that the said real estate be sold, with the net proceeds thereof being divided as tollows : ', (i) Fifty {50�? percen� thereof to my snn, RTCK A. FAILOR, ox his issue per stirpes by representation. (ii) Fifty (50�) percent thereof , in equal shares , to my children, RUSSELL E. FAILOR, JR. , VICKTE L. BRUBAKER and RICK A. FATLOR; or their issue per stirpes by representation. (D) Shou�d my son, RICK A. FATL4R, predecease me, I direct that real estate owned by me, same being known and numbered as 117 North Enola Road, Enola, CuFnber�and County, Pennsylvania �7025 (Tax Parcel No. Q9-14-0832-267) be sold, with the net proceeds thereof being di�ided as follows : (i) One-Third (1/3) thereof, in equal shares, to the issue of RTCK A. FATLOR. (ii) One-Third (1/3) the�eot to RUSSELL E. �AILQP�, JR. , or his issue per stirpes by representation. (iii) One-Third {�/3) thereof ta VICK�E L. BRUBAKER, or her issue per stirpes by representation. w (E) I give and devise real es�ate o.wned by me, sarne being known and numbered as 143 North Enola Road, Enola, Cumberland County, . Pennsylvania 17D25 (Tax ParCel No. 09-14-0832- � 268) , t� my son, RTCK A. FAILOR, �or as long as he wishes to use it in conjunction with �he operation of Russ' s Auto & Trailer � Sales, LLC, its successors or assigns and/or any related business . entities. Should my son, RICK A. FAILOR, desire to Cease use of i the said property in conjunction with the operation of Russ' s ; Auto & Trailer Sales, LLC, its successors or assigns and/o� any ;' `� '� related business entities, either zmmedi�te�y after my death or at any subsequent �ime, I dire�t that the saad real esta�e be sald, with the net proCeeds thereof being divided as follows : 3 (i) One-Third (1/3} thereof to rny son, RICK A. FAILOR, or his issue per stirpes by representation. (ii) One-Third (1/3) �hereof �o my son, RUSSELL E. FAILOR, JR. , or his issue per stirpes by represen�ation. (iii) One-Third (1/3) thereof to my daughter, VICKTE L . BRUBAKER, or her issue pex stirpes by representation. (F) Should my son, RICx A. FA•ILQR, predecease me, I direct that real esta�e owned by me, same being known and numbered as 143 North Enola Road, Enola, Cumberland Coun�y, Pennsy�vania 17025 {,Tax Parcel No. �9-14-0832-268} be sold, with the net proceeds thereof being divided as follows : (i) pne-Third (1/3) thereof, in equal shares, to the issue of RTCK A. FAILOR. (ii} One-Third {1/3) thereof to ftUSSELL E. FAILOR, JR. , or his issue per stix'pes by representation. (iii) One-Third {1/3) thexeof to VICKTE L. BRUBAKER, or her issue per stixpes by repxesentatidn. (G) I give and bequeath a1X accounts, o� whatever na�ure or type, as owned and maintained by me, at Wachovia Bank, Members First Federal Credit Union, AIG Tnvestrnents, their successors and/or assigns, in equal shazes, to my son, RUSSELL E. FAILOR, JR. , and my daughter, VICKIE L. BRUBAKER, provided that should eather RUSSELL E. FAILOR, JR. or VICKIE L. BRUBAKER predecease me, I give and bequeath their share unto their issue �j per stirpes by representation, and if there be a �ailure of same, �a then such deceased child' s share unto my surviving child as specifically set forth in this Clause SECOND{G) . (H) I give and bequeath ta my granddaughters and �...� great-granddaughters that are alive at the time of my death, � �heir choice of a�y ot my wife` s je�elry. Each g�anddaughter or great-granddaughter, in order of descending age, shall select one 4 � � �s {1) piece of jewelry, without regard for the va1u2 of that itern. Any items not selected by my granddaughters or great- granddaughters shall be and become a part of my residuary estate to be disposed of as set forth hereinbe].ow. 2 dixect that zny daughter, VICKTE L. BRUBAKER, act and serve� as the final arbitrator as to these proCeedin,gs and the selections made hereunder. � �I) I deva.se and bequeath al.l the rest, residue and remainder of my estate of whatever nature and wherever situate, including any property ovex' ��vhich I hold power of appointment and together with any insurance po�icies thereon, in equal shares, to my chi].dren, RUSSELL E. �'AILOR, JR. , VTCK�E L. BRUBAKER and RICK A. FAILOR, provided that should any of zny childreri predecease me, then to his ox' her issue per stirpes by representation, and, if their be a failure o� same, then such deceased child's share, in equal share, unto my surva.ving childx'en as pro�crided herein. ' THxR33e Shou7.d any of my gzandchildren or great- grandchi�.dxen riot have attaa.ned the age of twe�aty--two {22} years a� the time for distribu�ion to him or her, I gi�cre, devise and � bequeath the share of each such grandchild or great-grandchild to � ,. my hereinafter named Trustee or Trus.tees, IN SEPARATE TRUSTS, �o � hold, manage, invest and reinvest the shares so received, and ta use and apply from time ta time such portion of income and � princa.pal �or �he said grandchild` s or great-gz'andchild' s e education (in�luding college, trade school or other siznilar fi.raining or education) , as my Trustee or Trustees, in their sole da.scretion, deezn advisable. The Trustee or Trustees, in � �xercising their dis�retionary authority with respect to the payment of inCome or p_rin.cipal. o£ the within Trust to my grand- children or great-grancichildren, sha11 take in�o consi.de�a�ian any in.come or othex resources aYr'ailable to my grandchildren or great-grandchildren frozn sources outside this Trus� . 5 � Any in.corne or principa7. not so appli.ed sha11 be dis- tribu�,ed to each grandchild or great-grandchild when he or she attains the age of twenty-two (22) years. In the evexat any of my grandchildren or gxeat-grandchildren die prior to the termi.nation o� this Trust establ.ished hereix�. far their bene�it, the in.terest o� said grandchild or great-grandchild in said Trust sha11 cease - with any i.ncome and pri.ncipal being divided evenly between. or among �hat deceased grandcha.ld' a or great-grandchild' s brothexs or sisters or the separate Trusts establzshed hereunde� �or their benefit and, in the absence of any brothers or sisters, or any Trusts established hereunder for their benefi�, to my other grandch�ldren and great-grandchildren, or the Trusts established � hereunder far their benefit, in equal shares . �'OURTH: In addition to al1 powers granted to them by Zaw and by other px'ovisions af this Wi11, I give the fiduciaries acting hereunder �he �ollowing powers, applicable to a11 proper- ty, e�ercisable without caurt approval ar�a �iiectiv� ui�til actual distrib�ution of a11 property: (A) To sell at public or private saJ.e, or to lease, for any period of time, any real or persona� property and to give � options for sales, excranges or leases, for such prices and upon such terms (including credit, with ar without security) or conditions as are deemed propez. This includes the pov�rer to give � � legally sufficient instruments for transter of the property and , r � �o receive the proceeds of any disposition o� it. (B) 'I'o partition, subdi.vide, or impxove r�al estate „ and to enter into agreements concernin.g the partiti.on, subdzvi-- sion, impro�crement, zoning or mar_agement of real estate and to impose or extinguish restrictions on real estate. (�} To comp�omise aray claim or controversy and to abandon any property which is of 1ittle or no value. 6 f i (D) To invest in all forms of property, including stocks, common trust funds and mortgage investment funds, without res�ricticn tn investments authorized for Pennsylvania fiduci- aries, as are deemed proper, without regard to any principle of div�rsification, risk or productivity. , {E) To exercise any option, right or privilege granted in insurance policaes or in other investments . , (F} To exercise any elec�ion or privilege given by the Federal and other tax laws, including, but nat necessarily being limited to, personal income, gift a�d estate or inheritance tax 1aws. (G) To rnake distributions to my herein named benefici- aries in cash or in kind or partly in each. (H) To borrow money �rom themselves or others in order to pay debts, ta.xes, or estate or trust administration expenses, to protect or improve any property held under my wi�l, and for investment purposes. . (I). To select a mode of payment under any qualified retirement plan (pension plan, profit shax'ing plan, employee s�ock ownership plan, or any other type af qualified plan) to the � �xtent �he plan or the law permits them to do so, and to exercise , r � any other x'aghts wl�.i.ch they ;nay have under the plan, in. whatever � manner they consider advisabl.e. (J) Tn dealing with any proprietorship, partnership i interest, stock of any solely owned or closely held corporation, or any o�.her business or professional interest incl.uded in my estate or any trust under my will (all of w7hich are referred to as "the business" in the fallowing subparagraphs} , and withou� regard to any rule respecting contlict of in�erest, the fiduci- aries acting hereunder are authorized to : 7 �. b (1} Retain al1 or any part of the business as lang as they consider advisable, regardless of any� principle af 1aw cancerning investment diversification; t2) Sell all ar any part af the business when- ever, for whatever price, on whatever terms and conditions, and �o wha�ever organizatians, entities, or individuals, includ�ng fiduciaries under my will, they consider advisable; {3) �o anything they conszdex advisable wi�h respect to operating or liquidating the business or with respect to any change in the puxpose, form, or organization of the � business; (4) Participate directly in the management o� the business, or xender protessional services to it, and receive reasonable compensation from the business; (5) Delegate au�hority to any shareholder, director, manager, agen�, partner, or emp�oyee, a�d apprave paymei�t of reasonable compensation from the business; (6} Consent far the business to be taxed in ' accordance with the provisions of Subchap�er S ot the Internal � Revenue Code; � {7) Borrow money trom �he bankzng department of any bank exec��or or bank trustee that may serve under my wi�l; and (8) Make additional investments in or make advances to the business if that action appears to be in� the best interests of my estate or any txust under my will and the benefi- ciaries of my estate or the trust. � \�r_ FIFTH: I nominate and appoint my son, RUSSELL E. .� FATLOR, JR. , as Trustee of the hereinabove described trusts . In the event of the death, resignation or inability to serve for any reason whatsoeve� of the said RUSSELL �. FAILOR, JR. , I nominate and appoint rny daughter, VICKIE L. BRUBAKER, as Trustee of the 8 ' f i hereinabove described trusts. In the further event of the death, resignation or inabil�ty to serve for any reason whatsoever of the said RUSSELL E. FA�LOR, JR. and VICKIE L. BRUBAKER, I nominate and appoi�t my son, RICK A. �AILOR, as Trustee o� the hexeinabove described trusts. I direct that my Trustee sha11 se�-ve without b�nd and sha11 receive fair and reasonable compensa�ion. � STXTH: Z dzrect that all inheritance, estate, transter, suCcession and death taxes, of any kind whatsoever, which may be payable by reason of my death, whether or not with ! respect to prope"rty passing under this Will, shall be paid ou� of the principal of my residuary es�ate. SEVENTH: All znteres�s hereunder, whether principal or income, which are undistributed and in th� possession of the fiduciaries acting hereunder, even though vested or dis�ribu�- able, shall not be subject to attachment, execution or sequestra- tion for any deb�, contract, o151ic3.a���ri o� liability of any ben.eficiary, and furthermore, shal.l n.ot be sub�ect to pledge, assignment, canveyance or anticipatiox�.. ETGHTH: I noaninate and appoint my wife, JOANNE M. FAILOR, Executrzx o� this, my Last Will and Testamen.t. Ian the event of the death, resignation or in.aba.�.a.ty to serve for any reason. whatsoever of the said JOANNE M. FASLOR, I nominate and appoint my daughter, VICKIE L. BRUBAKER, E�ecu�rix of this, my � Last Will and Testament. In. the fu.r�her e�rent of the death, , resi.gnatian ox inability to serve far any reason wha�soever of the said JOANNE M. FAILOR and VICKIE L . BRUBAKER, T nominate and appoin.� my sons, RICK A. FAILOR and RUSSELU E. FAILOR, JR. , Co- Executars of thzs, rny Last Wi11 and Testament. I direct that my Executr.ic�s or Co-E�ecutors, Trustee or Trustees, as the ca�e inay be, and their successors, shall not be required to post security 9 y J r e • ' , or a bond for. the performance of their duties in any jurisdiction. IN WITNESS WHEREOF, I have hex'eunto set my hand and seal to this, my Last Wi1l and Testament, tris -�>�ay of ��„'�'��-r-" , 2 O 10 . � �t�-�'-� �. �"����i��--. �SEAL) RUSSELL E. FAILOR Signed, sealed, publ.i.shed and declared by the abave- named Testator as an.d for his Last Wi�.l and Testamen� in our ; presence, who, at his request, in his presence and in the presence of each other, have hereurito subscribed our names as ', attesting witnesses . . Address , , r Address 10 IN RE: : IN THE COURT OF COMMON PLEAS ESTATE OF RUSSELL E. FAILOR, SR., : CUMBERLAND COUNTY, DECEASED : PENNSYLVANIA JOANNE M. FAILOR, : NO.: Petitioner : ORPHANS' COURT DIVISION AFFIDAVIT OF JAMES D. BOGAR, ESQUIRE The undersigned, James D. Bogar, does hereby affirm that he was personally present on February 25, 2010, and did observe Russell E. Failor execute the original of his Last Will and Testament in the form attached to this Petition as and for his Last Will and Testament, and to the best of his knowledge, information and belief, the said Russell E. Failor did not revoke or destroy this Last Will and Testament prior to his death. _. ` � i' �� f , �, , J es D. Bogar, sq ire Sworn to and subscribed before e this `�-'day of �yr���� , 20�. � D NOTARY PU IC NOTARIAL SEAL CAROL A.BOGAR,NOTARY PUBLIC SHtREMANST4WN BORO,CUMBERLAND C011iVTY MY COMMISSION IXPIRES NOVEMBER 13,2015 IN RE: : IN THE COURT OF COMMON PLEAS ESTATE OF RUSSELL E. FAILOR, SR., : CUMBERLAND COLINTY, DECEASED : PENNSYLVANIA JOANNE M. FAILOR, : NO.: Petitioner : ORPHANS' COURT DIVISION AFFIDAVIT OF JENNIFER R. HIPP, ESQUIRE The undersigned, Jennifer�. Hipp, does hereby affirm that she was personally present on February 25, 2010, and did observe Russell E. Failor execute the original of his Last Will and Testament in the form attached to this Petition as and for his Last Will and Testament, and to the best of her knowledge, information and belief, the said Russell E. Failor did not revoke or destroy this Last Will and Testament prior to his death. � Jennifer�. Hipp, Esquire Sworn to and subscribed before me this !��L day of .����vr�b-P� , 20� r � NOTARY PUB C LyL� NOTARIAL SEAL pIANE MONTGOMERY,NOTARY PUBLIC SHIREMANSTOWN BOROUGH,CUMBERLAND COUNIY MY COMMISS�ON EXPtRES AUGUST 3,2011 CERTIFICATE OF SERVICE I, John A. Feichtel, Esquire, one of the attorneys for petitioner, Joanne M. Failor, hereby certify that I have served the foregoing paper upon the interested parties listed below this date by depositing a true and correct copy of the same in the United States mail, first-class postage prepaid, addressed as follows: Joanne M. Failor 1216 Summit Way Mechanicsburg, PA 17050 Russell E. Failor, Jr. 15 Donald Street Shermans Dale, PA 17090 Vickie L. Brubaker 47 Sycamore Drive Mechanicsburg, PA 17050 Rick A. Failor 1128 Kent Drive Mechanicsburg, PA 17050 SAIDIS SULLIVAN & ROGERS ,�.. �� � / .� � By• _---. � � J A. Fe'chtel Dated: December�, 2014