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Questions Answered by Theodore David Vicknair Sr.
4 Answers | Asked in Real Estate Law and Estate Planning for Florida on
Q: Ex died leaving a house he received in divorce to his sister. Im still on the mortgage. Who pays and what happens to

mortgage? I can't have late pmts on my credit. She will probably want to sell. Should I try to buy her equity and continue mortgage?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Aug 10, 2021

I assume there is no cash in the estate.

Are you and his sister adversarial? If not, then talk to an attorney about working out an agreement that allows you to be recognized as a creditor of the estate, and pursuant to this agreement you would ontinue pay the mortgage, but you would get...
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2 Answers | Asked in Probate for Illinois on
Q: How can I deposit a check I received from my deceased father when the check is made out to the estate of his name?

I received this check after I was named Executor of my father's estate by the probate court.

Then what happens after opening an account with the check? If my dad has no outstanding debt?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Aug 4, 2021

I agree with attorney Whithurst. You can obtain the tax ID number from the IRS at this site: https://www.irs.gov/businesses/small-businesses-self-employed/apply-for-an-employer-identification-number-ein-online

Your attorney should be able to get this for you if you don't understand...
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1 Answer | Asked in Estate Planning, Elder Law and Probate for Washington on
Q: A will was drawn up by an attorney who allowed a felon to be an executor Is he liable ?
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Aug 3, 2021

Probably not. An attorney that drafts a legal document for a client needs to put down what the clients wishes are in the document, but does not have a legal obligation to make sure the people listed by the client are appropriate choices.

On another note, many states have a statute that...
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1 Answer | Asked in Probate for Minnesota on
Q: How do I report to the court that someone has claimed to be a trustee , stolen my property, claims in court no trust?

There has been no showing of the trust and all the properties and money are being stolen.

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Aug 2, 2021

You will have to hire an attorney. If I were the attorney, I would get you appointed the administrator of the estate. Then get that person served and force him or her to come into court and prove that a trust exists. As administrator, you'd be able to get bank statements of the decedent... Read more »

1 Answer | Asked in Estate Planning on
Q: How to force an heir to participate in the distribution of or sell of inherited items.

My father sold his car to his brother in Puerto Rico but never signed over the title. The heirs of my fathers estate all have signed over their part in an affidavit to my uncle except one family member that refuses to have any contact with anyone. What can be done legally to settle this matter.... Read more »

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 31, 2021

A court could be petitioned to approve the sale. In my state of Louisiana, in a succession proceeding a lawyer can petition the court for the authority of the administrator of the estate to sell succession property. The heirs have the right to object, the most often the petition is approved if... Read more »

2 Answers | Asked in Probate for South Carolina on
Q: Is it illegal to get someone to sign a dual power of attorney if the person has dementia when they already have poa?

Is that considered elder abuse?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 30, 2021

It can be. It depends on whether the person has capacity at the time it is signed. In my state, as I suspect in others, capacity is presumed and must be proven by the party who is attempting to prove lack of capacity. Even if a person has dementia capacity is presumed, and a person can always... Read more »

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2 Answers | Asked in Real Estate Law and Elder Law for Maryland on
Q: My Dad died in Jan 2021 & owned a home in MD, with no estate. No other accounts or income.

From reading, I don't need to file income or estate taxes. I'm confused on the capital gains. Please help. Thank you!

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 29, 2021

Under federal income tax law, the tax basis of your father is "stepped up" to fair market value on his date of death. That is the basis you would use to determine capital gains, if any.

So for example, if you dad purchased his house for $75K in 1995, and when he died in January...
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2 Answers | Asked in Probate on
Q: I live in California I've been married for 35 years my husband died on Saturday the house is solely in his name help!

I have two grown children and the deed says that the house is solely in his name but this has been our marital home for 18 years what do I do

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 29, 2021

I am sorry to hear this. You will have to speak with a California lawyer, as I am only licensed in Louisiana.

In my state (Louisiana, which is a community property state, like California), if the house was acquired during the marriage, the house is community property. It does not matter...
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1 Answer | Asked in Elder Law and Health Care Law for Kansas on
Q: Can you get a power of attorney removed when they are not taking care of the persons best interest?

My aunt and cousin have dual power of attorney of my grandma and my cousin is making decisions(medically and financially) not in the best interest of my grandma. What can we and my aunt do to take control and take care of grandma?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 28, 2021

Yes, as long as your grandmother still has legal capacity (she knows what she is doing), she can revoke the prior POA and appoint someone else. If she does not have capacity, then no. You would have to file a guardianship suit (here in Louisiana we call this "Interdiction") to care for... Read more »

1 Answer | Asked in Elder Law for New Jersey on
Q: my mother needs to go to a nursing home.

if medicaid sees that her house was transfered to me (son) within the previous 5 yrs do i have to give medicaid the house in order for her to be admitted to a nursing home with out delay ?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 26, 2021

Most states allow a give back of property (in certain contexts called a "penalty cure") by the kids to the parents. So no, they will not seize the house.

If you received the house from her recently, a give back may be the best thing. However, if she "otherwise...
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2 Answers | Asked in Probate for Tennessee on
Q: Mother gets third of assets when her mother dies. She dies first. Does her part go to her executor?
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 26, 2021

I agree with attorney Whitehurst that your question is unclear. I will assume you mean your mother dies before your grandmother, and that you mother has a will (because you said "executor" rather than "administrator").

Most states allow for the grandkids to step into...
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1 Answer | Asked in Probate and Estate Planning on
Q: can a deceased parent disinherit any of their children in louisiana for any reason my father died a week ago

Am I entitled to a copy of the will and do the children automatically inherit half of the community assets survived by my stepmother

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 25, 2021

Generally, yes, a parent can disinherit a child for any reason unless the child is a "forced heir".

A "forced heir" is an child that is either (1) under the age of 24 at the time of your father's death; or (2) a child of any age who at the time of your father's...
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1 Answer | Asked in Estate Planning, Real Estate Law and Tax Law for Oregon on
Q: What is the best way to transfer a secondary residence from an aging father to their children?

We were looking to do a deed transfer, but I had questions of triggering a capital gains tax, or gift tax. I was advised the recipient will inherit the gift giver's tax basis, thus losing the step up in basis at death that would otherwise have occurred, thus creating in most cases a capital... Read more »

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 25, 2021

Example: father purchased the property for $50,000 in the 80s. His orignial "tax basis" is $50,000. So that if he sells it for $50,001 he has a gain of $1. Now its 2021 and It is now worth $200,000. The built in gain is $150,000.

If he holds onto the property, either as a...
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1 Answer | Asked in Estate Planning for Arkansas on
Q: Is it legal for an agent of a poa to transfer the principals real estate or personal property into his or her own name.
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 22, 2021

I think this will depend on two things. First, whether the law of your state (Arkansas) permits this in certain cases, and Second, whether the POA specifically permits this.

In my state of Louisiana, it specifically states that "self-serving gifts" must be specifically allowed...
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1 Answer | Asked in Tax Law for Florida on
Q: When would tax debt from 2009 be forgiven?
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 21, 2021

This depends on many factors. First, the general rule for statutes of limitation on collection is 10 years. The statues of limitations begins running on the date the return is filed. So, assuming the 209 return was filed on April 15, 2010, that would be April 15, 2020.

However, the...
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1 Answer | Asked in Probate for California on
Q: My father died two weeks ago and I want to contest the will, but the administrator of the will hasn't given me a copy.

- I have No copy of the will or death certificate

- I live out of state

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 21, 2021

You can petition to be appointed Administrator of the estate alleging that he did not have a will. This is what I do occassionally for clients when there is an alleged will, but the other side wont provide a copy or a copy cannot be obtained.

After all, someone is telling you there is a...
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2 Answers | Asked in Probate for Ohio on
Q: Father passed no will no spouse. My bro in same state as Dad. I live diff state. How protect my inheritance rights?
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 20, 2021

I would talk to an Ohio attorney about beating your brother to the punch to get appointed as Administrator of the estate. In my state, Louisiana, you and he would have equal preferenced in right to be appointed. Ohio may have a statute that provides that a local person living in the state has a... Read more »

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2 Answers | Asked in Tax Law for Maryland on
Q: Tax advice for inheriting half a condo

In 1998 my parents helped me buy a condo. The deed has my name and my father's name on it. I was told at the time that when he died I would automatically inherit his share of the condo, with no taxes owed. He died in 2011 and I have not tried to change the deed and I'm worried about any... Read more »

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 20, 2021

So this is clear under federal income tax law: inheritances are not income. States that have an income tax *generally* piggy back the federal law. So, generally, the only income tax implications that may be tangentially applicable is the "step-up" in income tax basis for the eventual... Read more »

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2 Answers | Asked in Estate Planning for Texas on
Q: I have received a consent to independent administration. Should I sign?

How long does the independent administrator have to distribute proceeds to heirs?

Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 20, 2021

You should ascertain with your own attorney what Texas' Independent Administration statute allows. In my state of Louisiana, it is generally limited to selling estate property without the consent of the judge. It does not affect the proceeds of the sale, which would be distributable to the... Read more »

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3 Answers | Asked in Estate Planning and Patents (Intellectual Property) for North Carolina on
Q: My Father passed,how do I find out if there’s anything in he’s estate for my sister and I. Thank you
Theodore David Vicknair Sr.
Theodore David Vicknair Sr. answered on Jul 20, 2021

The first question to ask is did he die with a Last Will and Testament. You shoudl examine his house and personal records to see if he may have exeucted one, if the original is in the house, and what bank records he may have there.

If you can't find the will there, check with the...
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