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Home My WebLink About05-04-06 (3) F:\FILES\DA T AFILEIGenerallCurrentl 12081.1.removeexewtrix Created: 1/24/06 9:17AM Revised: 4/28/06 0:39PM IN RE: ESTATE OF DONALD H. SCHWARTZ IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA No. 21-05-0402 !'-.,) c::;;) <= <::;n ORPHAN'S COURT DIVISION C,? - .. I ~j) ~~2 , +:- ~~ ..~,".- :J,.:;'. -< :"Tl PETITION FOR REMOVAL OF ADMINISTRATRIX PURSUANT TO 20 PA.C.S.A. ~ 3182 ::Po j '-.0 , . -1 AND NOW comes Judy M. Wood, by and through her attorneys, Martson Deard~rffWil1i~s & Otto, hereby requests that the Court remove Kathy L. Smith as Administratrix in the above captioned case and in support thereof avers as follows: 1. Petitioner, Judy M. Wood (hereinafter Petitioner), daughter of decedent, Donald H. Swartz, is an adult individual with an address 0005 Georgetown Road, Mechanicsburg, Cumberland County, Pennsylvania 17050. 2. Respondent, Kathy L. Smith (hereinafter Respondent), daughter of decedent, Donald H. Swartz, is an adult individual with an address of 40 West Baltimore Street, Carlisle, Cumberland County, Pennsylvania 17043. 3. On March 11,2005, Donald H. Swartz (hereinafter Decedent), died, leaving no will. 4. On April 28, 2005, Petitioner and Respondent were appointed as Administratrices of the Estate of Decedent. 5. On November 10,2005, Respondent made a withdrawal from the Estate checking account in the amount of Four Thousand, Five Hundred Dollars ($4,500.00). 6. On November 15,2005, Respondent made another withdrawal from the estate checking account in the amount of One Thousand, Five Hundred Dollars ($1,500.00). 7. Both of these withdrawals were made contrary to the interest of the Estate, which, as insolvent, needed the funds to payoff creditors on a pro rata basis. 8. A demand of a refund for the withdrawals was made on December 1,2005 by Jerry R. Duffie, Esquire, as counsel for the Estate. A true and accurate copy of said letter is attached hereto as Exhibit "A." ::D rn (~ C..) :0 ':-I l=n :~-::J C) - -i'~1 .,- ..n . .'0 rTl .) ~:~ c 9. A second demand for a refund for the withdrawals was made on January 5, 2006 by Jerry R. Duffie, Esquire, as counsel for the Estate. A true and accurate copy of said letter is attached hereto as Exhibit "B." 10. To date, Respondent has not returned the Six Thousand Dollars ($6,000.00) to the Estate checking account. 11. By making personal withdrawals to the detriment of the estate, Respondent has breached her fiduciary duty to the Estate and may be removed by this Court pursuant to its authority under 20 Pa.C.S.A. ~ 3182. 12. By making personal withdrawals from the Estate when creditors of the Estate still need to be paid, Respondent has breached her fiduciary duty to the Estate and may be removed by this Court pursuant to its authority under 20 Pa.C.S.A. S 3182. WHEREFORE, Petitioner requests that this Court issue an order removing Kathy L. Smith as Administrator of the Estate of Donald H. Schwartz, that the order specify that Kathy L. Smith may not collect commission against the Estate, that the Estate be awarded judgment in its favor against Kathy L. Smith in the amount of Six Thousand Dollars ($6,000.00), plus interest to be calculated from the date the withdrawals were made, plus the costs of bringing this Petition, and whatever other relief this Court deems appropriate. Respectfully Submitted, MARTSON DEARDORFF WILLIAMS & OTTO 1t1Lf ~ Ivo V. Otto, III, Eiquire P A Attorney J.D. No. 27763 Michael 1. Collins, Esquire PA Attorney J.D. No. 200427 10 East High Street Carlisle, P A 17013 (717) 243-3341 Attorneys for Petitioner DATE: S/'I , 2006 OF COU\JSEL IllJi:..\Ci. 1\ I()H\SO\ F LlT SHIP\!,\ \ BI\Let: I GIUJSS\1."\ . IEI\H1 1.. DLFFIL !\iCH.\I\J: \\ STF\\\l\~ C nm \HID\El. II. [D\IL\I: G \1\ EJ{~ D\\ilJ \\ DEU.U lOll." .:. ~nTL[:: )[['1'['1('\)\ I SIIII''.L\\ lLu.Pj ~ H. \\ j; iGHT. iI, :\1.\1\1' C DLFFIi julr\ I~. \J\liSI\' .\!lell.\Ei I USSID\ \tELlSS.\ PEEL GliEE\l !WBEHT \1. "\LKE!' '\.\DE D \I.\\LE': LAW OFFICES JOHNSON DUFFIE JdlllJliCd \;-, .\'i (ini. December 1, 2005 CERTIFIED MAIL Kathy L. Smith 40 West Baltimore Street Carlisle, PA 17013 Re: Estate of Donald H. Schwartz, Deceased Dear Ms. Smith: We have recently been advised by your sister, Judy Wood, that you have made a withdrawal from the Estate checking account on November 10, '2005in the amount of $4,500.00 and a second withdraw on November 21, 2005, in the amount of $1,500.00. As you are aware, your Father's Estate is insolvent. It is necessary, under the Probate, Estate and Fiduciary Code, to pay all of the administrative expenses, and any balance remaining must be paid to the creditors on a "pro rata" basis. You and your sister are entitled to receive a total Administratrix commission in the amount of $3,735.00. Your share is $1,867.50. Accordingly, the withdrawals of $6,000.00 from the Estate checking account has resulted in a cash deficit in the amount of $4,132.50. The balance in the checking account prior to your unauthorized withdrawals of $6,000.00, was $12,741.50. Those funds are required to pay the unpaid administrative expenses (hereinafter described), together with a pro rata share to eac;h of the creditors (hereinafter described). Accordingly, it is imperative that you immediately return to us a check in the amount of $4,132.50 made payable to the Estate of Donald H. Schwartz. It is not necessary to return your commission, $1,867.58. However, since you have already paid yourself your share of the Administratrix commission ($1,867.50), you will not be paid your share of the Administratrix commission again. The following administrative expenses are unpaid: TOTAL: $ 50.00 80.00 30.00 45.00 1,867.50 1.867.50 3,940.00 Filing Fee - Account Filling Fee - Account Advertising Filing Fee for Inheritance Tax & Inventory Additional Probate Costs Attorney Fees % Administratrix Commission (Judy Wood) 'ill j .\1.\ );)'1:T :-;TltEF PO !)(): 1 ill; LE\IOY\I:. PE'\ \~.;n.\'.\ \: 1.\ 1 ;II~ ~..() lOt: r\",rjDSW.cm: 7i7.7fl:-t).W F\\: ii7.7n]j(I]", \irlIl,@!DSVJ\)\! JOHNSON, DUFFIE. STEWART & WEIDNER, P.C. EXHIBIT "A" Kathy L. Smith December 1, 2005 Page 2 After payment of administrative expenses as described above, it is necessary that the remaining funds be distributed, on a pro rata basis, to your Father's creditors.' The total amount payable to your Father's creditors is $17,723.33. When you return the sum of $4,132.50, the then balance in the Estate checking account will be $8,801.58. Accordingly, each creditor will receive a pro rata share of the unpaid balance of the debt, or approximately 50% of that amount. The Probate, Estate and Fiduciary Code mandate this result. It is imperative, as set forth above, that you refund to the Estate the sum of $4,132.50 immediately. If you do not refund the money to us within the next ten (10) days then your sister will have to take appropriate legal action to compel you to refund the money, including, if necessary, private criminal charges. If you have questions or concerns about this issue or want to discuss the issue with me, please give me a call. However, it is imperative that the funds be refunded immediately. Very truly yours, :263868 , STEWART & WEIDNER cc: Judy Wood fERIW R. Dt FFlF RICH.\I\D \\. ~TEW.\RT C. Roy WElD'\EH. lk ED\IL'\D G. \JYERS D.\vllJ \Y. DELceE low\ :\ STATLEH jEFFERSO'\ J. SHIP\l), \ RALPH H. WRICHT. j1\ \L\IU, C. DUFIE 10H\ R. \ 1\0'11\\ \IlCH.\EL I. CASSIDY \JEI.lSSA PEEL GRIEV'l IWBEln \1. WALKER W.\DE D. \J)'\LEY LAW OFFICES JOHNSON DUFFIE OF COU'-iSEL HORACE A. jIJH\SO\ FLEE SHIP\I.\\ BRLCE I GROSS\!.\\ ~u;n;lleJ ;r \\ ilnl\' January 5, 2006 .,.. CERTIFIED MAIL Ms. Kathy L. Smith 40 West Baltimore Street Carlisle, PA 17013 RE: Estate of Donald H. Schwartz, Deceased Dear Ms. Smith: We fOlwarded to you a letter, dated December 1, 2005, demanding that the unauthorized withdrawals in the amount of $6,000.00 from the Estate checking account be refunded not later than ten (10) days from the date of the receipt of the letter. The letter was received by you on December 3, 2005. Notwithstanding our request, you have not refunded the unauthorized withdrawals. Accordingly, the purpose of this letter is to advise you that appropriate legal proceedings will be initiated in the Orphan's Court Division of the Court of Common Pleas to remove you as a Co-Administratrix and to request an order for you to refund the unauthorized withdrawals. It is anticipated that that legal proceeding will be instituted within the next two weeks. Very truly yours, gjm:266039 E, STEWART & WEIDNER . cc: Ms. Judy Wood, Co-Administratrix 3ill.\1.\I\l\ET STHEET PO. BOX Jill) LE\[OY\E. PE\\SlLV;\\L\ l~()J).(jlOl) \nrW.ID5\rCO\I ~]~.~riUj.W F.\\: 7]~~f)1.3f)Li \l.-\IL@IDS\\.ccnj JOHNSON. DUFFIE, STEWART & WEIDNER, p.e. EXHIBIT "B" VERIFICATION I, Judy M. Wood, certify the foregoing is based upon information which has been gathered by my counsel in the preparation of the Petition. The language is that of counsel and not my own. I have read the document and to the extent it is based upon information which I have given to my counsel, it is true and correct to the best of my knowledge, information and belief. To the extent the content of the document is that of counsel, I have relief upon counsel in making the Verification. This statement and Verification are made subject to the penalties of 18 Pa. C.S. ~ 4904 relating to unsworn falsification to authorities, which provides that in knowingly make false averments, I may be subject to criminal penalties. ( (, 6 CERTIFICATE OF SERVICE I, Mary M. Price, an authorized agent of Marts on Deardorff Williams & Otto, hereby certify that a copy ofthe foregoing Petition for Removal of Administratrix Pursuant to 20 P A.C.S.A. S3182 was served this date by depositing same in the Post Office at Carlisle, P A, first class mail, postage prepaid, addressed as follows: Kathy 1. Smith 40 West Baltimore Street Carlisle, Pennsylvania 17013 Co-Administratrix MARTSON DEARDORFF WILLIAMS & OTTO By ~')<I'l, G~') Mary rice Ten E High Street Carlisle, PA 17013 (717) 243-3341 Dated: May 4, 2006