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HomeMy WebLinkAbout08-21-06 COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYL VANIA ORPHANS' COURT DIVISION NUMBER: 21-06-00588 ESTATE OF THOMAS R. HOBBS, DECEASED PRAECIPE TO FILE DISCLAIMER AND NOW COMES DAVID J. LENOX, ESQUIRE, OF THE LAW FIRM OF WILEY, LENOX, COLGAN, & MARZZACCO, P.c., attorneys for the Estate of Thomas R. Hobbs, deceased, and respectfully submit for filing the attached Disclaimer of the estate beneficiaries, namely, Jeffrey A. Clukey, Thomas R. Hobbs, Jr., and Rebecca S. Hobbs. Dated: g'/zt/rJ & . By: David J. en x, Esquire Attorney Number: 29078 Wiley, Lenox, Colgan, & Marzzacco, P.C. 130 W. Church St. Dillsburg, P A 17019 (717) 432-9666 -j" ") '~~Jl (Jl v- COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYL VANIA ORPHANS' COURT DIVISION NUMBER: 21-06-00588 EST A TE OF THOMAS R. HOBBS, DECEASED DISCLAIMER AND NOW COME JEFFREY A. CLUKEY, of 45 Hellam Drive, Mechanicsburg, Pennsylvania, THOMAS R. HOBBS, JR., of 17 Valley View Drive, Mechanicsburg, Pennsylvania, and REBECCA S. HOBBS, of 4480 Rodenbaugh Avenue, Pittsburgh, Pennsylvania, being all of the children and partial beneficiaries under the will of Deceased, and respectfully file the following disclaimer: 1. THOMAS R. HOBBS, died on June 20, 2006, leaving a will dated September 2, 1992, which was admitted to probate by the Register of Wills of Cumberland County, Pennsylvania. Letters Testamentary thereon were granted to JUDY M. HOBBS on July 3, 2006. A copy of Decedent's will is attached hereto as Exhibit A. 2. JUDY M. HOBBS, the wife, is the sole lifetime beneficiary of the "Marital Trust" established under ITEM 3 of Decedent's will. 3. Under ITEM 4 of said will a "Residuary Trust" is created for assets of decedent's in excess ofthe assets distributed to the "Marital Trust". 4. Decedents actual estate is of sufficient size so that the "Residuary Trust" will be 1 , , funded. 5. ITEM 4, Paragraph C, contains a so-called "sprinkle provision" wherein the trustee of the Residuary Trust is authorized to make discretionary payments of principal to Decedent's children during the life of Decedent's wife, thereby disqualifying said trust as a trust for the sole use of the surviving spouse under Section 21 13 (A) of the Inheritance and Estate Tax Act, 72 P.S. 9113. 6. With the intent of eliminating the disqualifying affect of said provision, the children, being the below signed disclaimants, disclaim any interest in any distribution under ITEM 4, Paragraph C, during the life time of Decedent's wife, and hereby irrevocably refuse receipt of the benefits therefrom. 7. The property interest so disclaimed extends to any interest or any right to distribution during the life time of the Decedent's wife, regardless of the funding of the Residuary Trust and whether it consists of real property, personal property, tangible property or intangible property. 8. The childrenldisclaimants have not accepted any benefits from Decedent's estate whether by income distribution or principal distribution, and have not exercised any control of the estate assets. 9. The result of this disclaimer is that the surviving spouse will be the sole lifetime beneficiary of the Residuary Trust thereby qualifying said trust as a transfer of property for the sole use of the surviving spouse during the entire lifetime of the surviving spouse. 10. The Disclaimants intend to file this disclaimer with the Clerk of the Orphans' Court Division of the Court of Common Pleas of Cumberland County and to deliver a time stamped 2 copy of the filing to Judy M. Hobbs, the Executrix of the above estate and to Merrill Lynch Company of America, the Trustee of the Residuary Trust. Date: 7. / iO / /'t!LL :Jf~?: -4. ahi'J JEFF . LUKEY ~(l;uJ2~ T- OMAS R. HOBBS, JR. Date: Date: 6' /~/ 2f)tJ6 /7 / AO / 2(HA~ ll2/l0dJ!) /~*~ t911r---- REBECCA S. HOBBS 3 , \ iliastllil1 ann Qleshtm.ent OF THOMAS R. HOBBS I, THOMAS R. HOBBS, of 1313 McCormick Road, Mechanicsburg, Cumberland County, Pennsylvania, declare this to be my Last will and Testament, and revoke all prior Wills and Codicils made by me. ITEM 1: I direct my Personal Representative to pay my funeral expenses and have a marker erected at my grave; and I authorize it to expend for these purposes such sums as it deems proper, without any limit prescribed by law, and without order of Court. ITEM 2: I bequeath all of my tangible personal property, together with all insurance policies thereon, to my wife, JUDY H. HOBBS, if she is living thirty (30) days after the date of my death, and if she is not then living, in as nearly equal shares as possible to my then living children. ITEM 3: If my wife, JUDY M. HOBBS, survives me, I devise and bequeath unto MERRILL LYNCH TRUST COMPANY OF AMERICA, IN TRUST, to be known as the "MARITAL TRUST", such an amount, if any, as when added to the value of all property which passes or has passed to my said wife either under other provisions of this will or outside of this will and which qualifies for the marital deduction allowable for Federal Estate Tax purposes, shall be the minimum amount necessary to give my estate a resulting marital deduction which, after taking into account other /WEq'NESS : \;- , (.) I}.. ~l.f:...... f,l........ ----'.~:....-----r ~ ' y- ~'1r ~~S=I -1- , , deductions and all allowable credits, will cause the Federal Estate Tax affected by the amount of this devise and bequest to be eliminated or reduced to the lowest possible amount; provided, however, the state death tax credit shall be taken into account only to the extent that it does not result in any increase in the amount of death taxes payable to any state. The assets to be distributed in satisfaction of this devise and bequeath may be allocated in cash and/or kind, shall be only those which qualify for marital deduction and shall be selected in such manner that the cash and other property distributed will have an aggregate fair market value fairly representative of the distributee's proportionate share of the appreciation or depreciation in the value to the date, or dates, of distribution of all property then available for distribution. Any property assigned or conveyed in kind to satisfy this devise and bequest shall be valued for that purpose at the value thereof as finally determined for Federal Estate Tax purposes. A. The net income shall be paid to my wife, for life, at least quarter-annually. B. My wife shall have the absolute right, at any time or times to withdraw any portion or all of the principal of the "MARITAL TRUST" as she may demand in writing to my Trustee. c. If my wife shall be so ill or s: l-,.--,- 1 -) l ----1...-/0-) ~~~~I -2- otherwise incapacitated as to be unable to exercise her power of withdrawal, my Trustee is authorized, in its absolute discretion, to make payments from the principal of the "MARITAL TRUST" for the benefit of my wife as my Trustee deems advisable to provide for her support, maintenance, general welfare and care, so that she shall be enabled to live in the comfort to which she has been accustomed, and my Trustee need not take into consideration any property which she may own, or any income to which she may be entitled. D. My wife shall have the unrestricted power to appoint, by specific reference in her will, the entire income and principal of the "MARITAL TRUST" absolutely, in further trust, or in any other manner, in favor of any person or persons, corporation or corporations she may designate, including her estate, her creditors or the creditors of her estate, such power being exercisable by her alone and in all events. E. If my wife fails to exercise the foresaid power of appointment, or if any attempted exercise thereof be invalid or fails to be effective, then upon her death, my Trustee shall add the property then held by it under this "MARITAL TRUST", or the portion thereof not validly appointed, to the "RESIDUARY TRUST" created by Item 4. ITEM 4: All the rest and residue of my estate, real and personal, and all property over which I ~ss: ~~.~~ ~~S=I R. HCEBS -3- may have power of testamentary disposition, I devise and bequeath and appoint to MERRILL LYNCH COMPANY OF AMERICA, IN TRUST, to be known as the "RESIDUARY TRUST". A. The net income shall be paid to my wife, JUDY M. HOBBS, for life, at least quarter-annually. B. Upon the death of my wife, or upon my death if she predeceases me, my Trustee shall divide the principal of this trust into such number of equal shares so that there shall be one share for each child of mine then living and one share for the then living descendants (as a group) of each deceased child of mine. 1. Each share for the living descendants of a deceased child shall be distributed to such descendants, per stirpes. 2. The share for each living child shall be distributed as follows: a. One-Third (1/3) of the balance and accumulated income shall be distributed at my death. b. One-Half (l/2) of the balance and accumulated income shall be distributed five (5) years from the date of my death. c. The remaining balance and accumulated income shall be distributed ten (10) years from the date of my death. d. Such child shall have the power to appoint, by specific reference in his or her ~" L,J -/.-'---" ::2b~~~~) R. HCEBS Will, such trust share absolutely, in further trust or in any other manner, in favor of any person or persons, corporation or corporations, he or she may designate; provided, however, as to such portion or all of said property over which such child immediately prior to his or her death had an absolute right of withdrawal, such child shall have the further power to appoint such property to his or her estate, his or her creditors or the creditors of his or her estate. e. Upon the death of such child any principal of such child's share not validly appointed shall be distributed to such child's then living descendants, per stirpes, and if such child leaves no descendant then living, the same shall be distributed to my then living descendants, per stirpes; provided, however the share of any person for whom a trust is then continuing under the terms of this Will shall not be i distributed to such person, but shall be added to the trust so held for such person. C. My Trustee is authorized, in its absolute discretion, to make payments from the principal of the "RESIDUARY TRUST" to or for the benefit of my wife 'and/or my children, of her, his or their support, maintenance, education, general welfare and care, as my Trustee deems advisable; provided however, that no such payments shall be made to or for the benefit of my wife until after the "MARITAL TRUST" has been exhausted. Any ~7"" ,,- I J ,L--, ~. ~~ fi-II~~SEAL) R. lKEBS -5- payment made from principal prior to the death of my wife shall be a general charge, but after her death the payment shall be charged against the principal of the share of the child to whom or for whose benefit such payment is made. ITEM 5: Any portion of my estate or any trust undisposed of by the foregoing provisions shall be distributed in accordance with the then laws of the state of Pennsylvania, as if I had then died intestate. ITEM 6: Any portion of my estate or any trust distributable to a person who has not attained twenty-one (21) years of age may be distributed for the benefit of such person under the provisions of the Pennsylvania Uniform Gifts to Minors Act to be held under such custodial management until such person attains twenty-one (21) years of age, and I authorize my Personal Representative and/or Trustee to appoint an individual or institution, including itself, as Custodian under the Act for such person. ITEM 7: A. During the minority, illness or other incapacity of any beneficiary hereunder, my Trustee is authorized, in its absolute discretion, to make payments of income or principal due to or authorized in respect to such beneficiary to his or her duly constituted Guardian or Custodian under the Pennsylvania Uniform Gifts to Minors Act, or to such other person or persons as in the opinion of my Trustee may be in proper charge of such beneficiary, to be applied by such person or persons to the support, maintenance, education, general welfare and care of such beneficiary, or if my Trustee deems best, to itself apply such payments to which such beneficiary may be entitled for such purposes without being required to account therefor to any Court. B. Except as herein otherwise provided, ~TNESS : \\~ ''L /'\<...~ \.. '0'- . \..,j.~ f ~ . - ~&\ -C\OcXt ~A~/l-~~) R. HCBBS -0- all payments of income or principal are to be made directly to the respective beneficiaries and not to any other, whether claiming by their authority or otherwise, without power of anticipation and without being subject to execution or attachment; this provision, however, not to prevent the deposit of funds payable to the beneficiaries to their credit in any bank or other financial institution, nor to prevent the exercise by my Trustee of any discretionary powers conferred upon it. ITEM 8: My Personal Representative and Trustee, in their respective capacities and discretion, without obtaining the prior or subsequent order or ratification of any Court, shall have the following powers in addition to the powers granted to them by statute, common law or rule of court. A. To invest in, reinvest in and change any investment in real or personal property, expressly including participation in common trust funds; to compromise and settle any claims; to sell, assign, lease (including the power to lease for a period extending beyond the probable duration of the trusts), develop, build, alter, improve, raze, borrow, mortgage, exchange or otherwise dispose of or deal with the assets; to allocate in cash or kind all distributions of income and principal; and to divide in kind and/or sell for the purpose of division, and to do any and all things hereunder which I would be able to do were I still living. B. To vote in person or by general or limited proxy the stocks or other securities held by it; to join in consent to or oppose any deposit agreement, reorganization proceedings, plan of reorganization, merger, dissolution or other adjustment of capital funds or indebtedness affecting the assets held by it; to pay an assessment upon the assets held by it; to exercise any option and to take advantage of any rights given in connection with the assets. C. To cause assets to be registered in the name of any nominee selected by it, or it may take and keep them unregistered so that title will pass by delivery. D. To retain any asset acquired without liability for any loss occasioned by reason of such retention or for any lack of diversification; provided, however, my Trustee shall not retain or invest ~~ss: _~,~ (___JJ0~.., /) , ~~ uJ- ~/t~1 R. HCBBS -7- . . in any non-income producing asset in the "MARITAL TRUST" without the express written consent of my wife. E. With respect to the "RESIDUARY TRUST" , to purchase any asset from my Personal Representative and to make loans, secured or unsecured to it. F. To receive other property, real or personal, including policies of insurance, devised, bequeathed, assigned, granted, conveyed, or made payable to it, which are acceptable to my Trustee and which shall be subject to the provisions and limitations of the trusts hereby created, including additions by my wife to the "MARITAL TRUST". G. For investment or administrative reasons, to treat the "RESIDUARY TRUST" as common fund, notwithstanding any provision herein for division into shares, until such time as it deems it advisable to make such division. H. To make any tax election with respect to my estate or any trust created hereunder. My Personal Representative and Trustee need not consider only the tax effects such election may have on my estate, or any beneficiary hereunder, as well as the needs of any such beneficiary. I recognize that the making of such tax elections may operate to the benefit of one or more of the beneficiaries hereunder and to the detriment of others, and I direct that no adjustment shall be made in the interests of such beneficiaries to compensate for the effects of any such election, and neither my Personal Representative nor my Trustee shall be liable for any increased taxes of any kind, or for any interest or penalties with respect thereto, which may be or become due by reason of the making of, or the failure to make, any such tax election. I. To the extent that my Trustee shall have the right to exercise any option or election respecting the manner of payment of any funds or other assets which may be payable directly to the Trustee as beneficiary, I direct that my Trustee shall have the absolute discretion to exercise any such option or election in such manner as it shall deem advisable, regardless of the effect thereof on my estate, the trust estates created hereunder, or any beneficiary or other person interested herein, and the determination of my Trustee in the exercise of any such option or election shall be final and binding on all persons interested therein. J. All of the powers granted to them ~SS: .~\. \ c- / tf.......... ~ L~,~ ~\", / ) / ~~% ~/t~S=1 R. lDBBS -8- . . shall continue until all assets have been distributed. K. No charge, reserve or other deduction from income shall be made at any time for depreciation of any asset. ITEM 9: I recognize that the Trustee is a subsidiary of Merrill Lynch Group, Inc. and specifically authorize it: a. to engage the services of Merrill Lynch Group, Inc., any of its direct or indirect subsidiaries or affiliates (collectively "Affiliated corporations" and, individually, an Affiliated Corporation"), and, without limiting the generality of this authorization, the services of Merrill Lynch Investment Management, Inc., an Affiliated Corporation, and Merrill Lynch, Pierce, Fenner & smith Incorporated, an Affiliated Corporation: (i) to manage or advise on the investments of the Trust; (ii) to invest the Trust's assets in mutual funds offered or managed by any Affiliated Corporation; and (iii) to act as a broker or dealer to execute transactions and to provide other services with respect to the Trust, including the purchase of any securities currently distributed, currently underwritten, or issued by any Affiliated corporation; b. to employ, and to delegate any of its powers, to any agents, attorneys or accountants as it deems necessary and proper; c. to pay for services rendered by such persons or by any Affiliated corporation from the Trust property as an expense of trust administration, without diminution for any payment that the Trustee may receive as substituted trustee, and recognizing that the Trustee may also receive credit or other compensation from Affiliated Corporations for services it may perform and may exchange services with any Affiliated Corporation; and d. to cause or permit all or any part of the trust to be held, maintained, or managed in accounts or deposits administered in any jurisdiction inside or outside the United states of America, and to hold any trust property in the name of its nominee or a ~ss: q~~tJ ~~S=I -9- nominee of any Affiliated corporation. ITEM 10: I authorize the Trustee to retain payment for its services as substituted trustee under the aforementioned trust agreement: a. in accordance with its schedule of rates as published from time to time and as in effect at the time such compensation becomes payable; and b. without diminution for any fees that any Affiliated corporation may receive from mutual funds in which the Trust has invested, including payment for investment advisory or management fees, administrati ve and sUb-accounting services, brokerage fees and commissions and payments for other expenses of the mutual funds, and further, without diminution to payments to any Affiliated Corporations for services rendered to the Trust. ITEM 11: The Trustee may resign at any time by written notice delivered to me. After my death, such notice shall be delivered to my legal representative. In the event of my failure, refusal or inability to appoint a successor trustee, or after my death the failure, refusal or inability of my legal representative to appoint a successor trustee, Trustee of any beneficiary of the trust provided for in this Agreement may, at the expense of the trust, secure the appointment of a successor trustee by a court of competent jurisdiction. No bond or other security will be required in any jurisdiction of the Trustee, or any successor appointed in accordance with these provisions. ITEM 12: A. No apportionment of the income of the "RESIDUARY TRUST", or of any subdivision thereof, shall be made upon the death of any beneficiary, and the beneficiary's estate shall not be entitled to any accrued, or uncollected, or undistributed income, and all such income shall be distributed with the other income of the trust to the person or persons next entitled to the income of the trust. B. If proceeds of insurance on my life are payable to my Trustee, I direct it to collect the proceeds and allocate the same to the "MARITAL TRUST" or to the "RESIDUARY TRUST", or partly to each, as it may be directed by my Personal Representative, and my Trustee shall notify my Personal Representative promptly of all insurance proceeds which are paid or payable to it. C. To the extent that my Personal Representative does not have sufficient funds to provide WITNESS: ~J~ /"'-= I ~. . ~#~- 'lHH\S R. HCEBS -IO- for the payment of all estate, inheritance, succession and transfer taxes, debts, funeral expenses, administration expenses and cash bequests, my Trustee shall distribute to or pay to the credit of my Personal Representati ve such sum or sums from the principal of the "RESIDUARY TRUST" as may be necessary to satisfy all such cash requirements. My Trustee is authorized to rely conclusively upon the certification of my Personal Representative regarding the amount of cash needed, if any, and distribution by my Trustee in accordance with such certification shall exonerate it from all liability. ITEM 13: All estate, inheritance, succession and transfer taxes, including interest and penalties thereon, if any, payable with respect to all property includible in my gross estate for Federal Estate Tax purposes, (other then generation-skipping transfer taxes), or taxable by reason of my death, including inheritance taxes which may be prepaid by or on behalf of any person having a contingent or remainder interest therein, if my Personal Representative in its absolute discretion deems it advisable to prepay such taxes, shall be paid out of the principal of my residuary estate. ITEM 14: If my wife and I die under such circumstances where there is insufficient proof to determine who predeceased the other, I direct my wife shall be deemed to have survived me. ITEM 15: I appoint my wife, JUDY M. HOBBS as Executrix of this my Last Will and Testamaent. Should my wife, predecease me, fail to qualify, cease to act or renounce probate, I then appoint my daughter, REBECCA S. PONAS, as alternate Executrix of this my Last will and Testament. My Executrix or her successor shall serve without bond. IN WITNESS WHEREOF, I have hereunto set my hand and , ""l~ seal th~s ~ day of SJlpJ::.u-n J.Au , 1992. ~ss_: /~ J ,) / , --, (. ,.......x--.j ~Mcrd ' ~~~IS=I -11- , . COMMONWEALTH OF PENNSYLVANIA SS COUNTY OF YORK We, THOMAS R. HOBBS, JAN M. WILEY, ESQUIRE and PATRICIA A. OGG, the Testator and the witnesses respectively, whose names are signed to the attached or foregoing instrument, being first duly sworn, do hereby declare to the undersigned authority that the Testator signed and executed the instrument as his Last will and Testament and that he had signed willingly (or willingly directed another to sign for him), and that he executed it as his free and voluntary act for the purposes therein expressed, and that each of the witnesses, in the presence and hearing of the Testator, signed this Last will and Testament as witness and that to the best of their knowledge the Testator was at the time eighteen (18) years of age or older, of sound mind and under no constraint or undue influence. ~/V~ ~S R. HOBBS . \ <--4- .~---. c.J J--, i~ WITNESS ~ Sworn to and subscribed before me this ~~ day of ~j)JA ,1992. sAD twfr) )jh~ NOTARY PUBLIC MY COMMISSION EXPIRES: ~- Nolanal Seal S. DalMl Gladfetter, Notary PubflC CarrollTwp., Yo;!.; County My Commission Expires May 17,1993 Msrnt",r, Pennsylvania Associalion of Notaries COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA ORPHANS' COURT DIVISION : NUMBER: 21-06-00588 ESTATE OF THOMAS R. HOBBS, DECEASED CERTIFICATE OF SERVICE I, David J. Lenox, Esquire, hereby certify that I am this day serving a true and correct, time-stamped copy of the Disclaimer upon the person(s) by depositing a copy of same in the United States mail, first-class, postage prepaid, as follows: Judy M. Hobbs, Executrix 1313 McCormick Road, Mechanicsburg, P A 17055 Merrill Lynch Company of America Trustee c/o Stephen G. Brindle 214 Senate Ave., Ste 501, Camp Hill, PA 17011 Date: sfr/Jc, By: David J. L 0, Esquire-- Attorney Number: 29078 The Wiley Group 130 West Church Street Dillsburg, PAl 70 19 (717) 432-9666