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Estate Planning Questions & Answers
2 Answers | Asked in Estate Planning and Family Law for Florida on
Q: My mother passed and left the house to me 100% her household items are in trust 50/50 to me and my brother

.. I have been boxing things up and have asked my brother and his kids to come and take anything they want..as there is nothing I must have... I have even offered to put what my brother wants in the garage until he can come get it... Yet he is telling me I am doing this too soon for him and I must... Read more »

Bruce Alexander Minnick
Bruce Alexander Minnick answered on Nov 18, 2019

No, there is no law or rule that control this family situation. If it was my problem I would box EVERYTHING up and put it some small storage unit somewhere near where your brother and his family live. It cannot cost the estate more than $75 per month to do it; and even if it sits there for a year... Read more »

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1 Answer | Asked in Estate Planning and Probate for Georgia on
Q: What happens if I don’t sign for the succession but everybody else did?

The lawyer we had quit before we resolved anything. I’ve been living in my mamas trailer for 2 years next month. She told me to move in her place after she wanted to get put in the nursing home. She died 4 months after I moved in. I’m still here but my siblings was to evict me when I’ve been... Read more »

Jammie Taire
Jammie Taire answered on Nov 18, 2019

Hello. You have my deepest sympathy for the loss of your mother. This is a difficult question to answer given the information provided. I am unsure if anyone has actually filed to be named as administrator or executor based on the information provided. I will assume someone has petitioned to... Read more »

1 Answer | Asked in Estate Planning for Rhode Island on
Q: In Rhode Island can the executor of a will live in the house of the deseased, the major asset of the estate?

Would executor need permission of beneficiaries to live there and would exector need to pay rent at current market value?

Nina Whitehurst
Nina Whitehurst answered on Nov 17, 2019

To prevent claims against the executor for breach of fiduciary duty against the executor, the executor should obtain court approval before doing such a thing.

1 Answer | Asked in Estate Planning for Montana on
Q: Co-trustee and POA. I'm being asked by co-trustee to sign a contract outlining mom's care to get paid as caregiver.

My stepbrother and I are named as co-trustees and POAs over our parents. Dad passed. Mom has dementia. I am staying with her in Montana and caring for all her needs, paying her bills, arranging for assisted living in Bend, OR.

The Wills and Trusts state that one can be paid to take care of... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 17, 2019

A caregiver contract makes perfect sense in your situation. It also helps document that those payments are not gifts in case you ever need to apply for Medicaid for her. Otherwise they would be presumed to be gifts. Medicaid applicants are penalized for all gifts made within five years prior to... Read more »

1 Answer | Asked in Estate Planning and Real Estate Law for California on
Q: I need to transfer my property from a trust to myself after the death of my mother. I don’t know how to do this .

My mother passed 5 years ago. She gave me the house upon her death, it was in the family trust before this. I need to change the title.

Nina Whitehurst
Nina Whitehurst answered on Nov 16, 2019

The best way to do this is to hire an attorney to assist you. Most estate planning and trust administration attorneys (such as myself) do this on a regular basis. The fee is usually quite affordable compared to the litany of problems you could experience in the future if this is not done... Read more »

1 Answer | Asked in Estate Planning and Landlord - Tenant for Maryland on
Q: Grandma/Hubby both on deed. Grandma died & hubby is nonverbal & in LTC. What documents needed for his son to put us out?

Son hasn’t presented any POA, inheritance, guardianship documents but says the premises must be vacated. Step grandfather has been nonverbal for about a year and my grandmother was his POA up to her death on 9/7/19.

Mark Oakley
Mark Oakley answered on Nov 16, 2019

If he’s not POA, then he cannot act on his father’s behalf unless he petitions a court to appoint him guardian over his father and his property. Assuming he is one of those, he will have to serve 30 day notice to vacate before he can file a complaint for judgment of possession and a court date... Read more »

1 Answer | Asked in Estate Planning for Maryland on
Q: Grandmother and her husband are on the house deed. Grandmother died. Who gets the house and how?

We are a blended family. Step grandfather’s son called saying he has POA and wants access to the house. We never met him before and step grandfather is in nursing home, deemed medically incompetent and is non verbal.

Mark Oakley
Mark Oakley answered on Nov 16, 2019

Depends on how they held title to the house. The default way married couples hold title is as tenants by the entirety, which means in this instance that your grandfather is the sole owner. If, however, title is held as tenants in common, he only owns half interest and your grandmother’s estate... Read more »

1 Answer | Asked in Estate Planning and Civil Litigation for New York on
Q: Can an appointed trustee destroy the trust property given to him? If given promissory note, is he liable for face value?

A trust was created for my benefit earlier this summer. A promissory note was given in trust to the trustees to be invested and utilized for specific purposes. The note transferred to the trustees is still currently in their possession. They have not performed the trust nor accounted as required... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 15, 2019

A trustee has the duty to protect, collect and maximize the value of trust assets for the benefit of the beneficiaries, and intentionally destroying a trust asset would presumptively be a violation of that duty. However, it is possible that the note truly was uncollectible and it would cost the... Read more »

1 Answer | Asked in Probate and Estate Planning on
Q: my brother dies a few days ago. He has two kids, one 35 and other 30. On the will it list daughter as executor.

My brother dies a few days ago. He has two kids, one 35 and other 30. On the will it list daughter as executor. also daughter is beneficiary of 1/3 of estate, son is beneficiary of 1/3 of state, and myself is 1/3 beneficiary of state. His two kids, are not perusing a wrongful death suit. I myself... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 15, 2019

You could hire a probate litigation attorney to help you file an objection to the daughter being appointed executor and to have yourself appointed instead. The reason would be that the executor's job is to marshall all of the assets of the estate, and she is failing to pursue a large asset. You... Read more »

1 Answer | Asked in Estate Planning for Maryland on
Q: Can a family member act as a witness on a Power of Attorney?

One witness can be the notary and the other witness, not named on the paper as an agent, successor, or alternate, witness the document, even if the witness is a family member?

Mark Oakley
Mark Oakley answered on Nov 15, 2019

Yes, family members can witness a power of attorney. If it is a health care POA, at least one of the witnesses cannot be one of the person’s health care providers or an employee of one of their health care providers, or entitled to inherit under the person’s will.

2 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: I have a question on CA prop 13 transfer between parent and child.

My mom relocated to a managed care facility last year. If I purchase the home she lived in for 50 yrs, will I be excluded from reassessment of the property and be able to continue getting the prop 13 tax advantages and if so, does it need to be my primary residence?

James Edward Berge
James Edward Berge answered on Nov 14, 2019

Whether it's a sale or gift of property to you by a parent, you should still qualify for the parent to child reassessment exemption under Proposition 58 which extends Prop 13 protection to the child, regardless of whether that child is a minor or an adult. If the property being transferred is the... Read more »

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1 Answer | Asked in Estate Planning, Real Estate Law and Elder Law for California on
Q: Additional questions to: What is the cost of a POA in CA? My sister resides in CA, had a stroke in July, in rehab in CA.

Thank you for your previous answers. Ms. Whitehurst, what other "eventualities" are you referring to? And, Mr. Gaffney, so, is it necessary and/or advised to obtain a physician's letter stating she has "the mental capacity to understand what she is signing"? We are also awaiting approval for SSI... Read more »

Jeffrey Louis Gaffney
Jeffrey Louis Gaffney answered on Nov 14, 2019

If a person has some impairment, then you are right to worry that someone may later claim that they did not have the capacity to sign the document. We usually work the other way around (getting a doctor to say someone is incompetent), but I like your defensive thinking in making sure that she has... Read more »

3 Answers | Asked in Estate Planning and Real Estate Law for Ohio on
Q: Is there a way to do a will without involving a lawyer?

He has stage 4 cancer, hospice is in, and he is no longer able to leave the house. He wants to get his will done so there is no fighting. He also owes a bit on his house but wants to transfer the home to his daughter, can this be done? Lots of questions but hope to be guided in the right direction.... Read more »

Taylor P Waters
Taylor P Waters answered on Nov 14, 2019

It sounds like quite a few moving parts, and seeking an attorney is the best way to make sure everything goes where it belongs and abides by the statutory requirements for wills.

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1 Answer | Asked in Estate Planning and Probate for Minnesota on
Q: Can an obvious mistake of naming a long-time estranged adopted grandchild as beneficiary to a trust be corrected?

My 79 yo father created a revocable trust in 2015, he was original trustee. Trust named his 6 children as equally-divided beneficiaries, & the "beneficiary's issue" if the child has died. My brother died March, 2019; my father died August, 2019. My brother married twice. No marriage produced... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 14, 2019

That mistake is probably going to be difficult if not impossible to correct. This is why estate plans should be reviewed and updated periodically. The only way for any attorney to be able to provide you with definitive advice would be to review the actual wording of the trust instrument. This is... Read more »

2 Answers | Asked in Estate Planning, Real Estate Law and Probate for Texas on
Q: My father passed away and I live in his house, how do I transfer ownership in my name so I can sell?

My father passed away and I live in his house, my brother doesn't want anything out if it and said he will sign whatever needs to be signed, I had another brother who passed away, he had 4 kids they will all sign as well, what paperwork do I need to file? We do not want to go to probate, would an... Read more »

Terry Lynn Garrett
Terry Lynn Garrett answered on Nov 14, 2019

In theory, if your father left nothing but the house and had no debts (owed no income or property or other taxes, had no medical or funeral expenses, had no credit card debt, never used Medicaid, etc.), a title company would accept an Affidavit of Heirship and you could avoid probate. A court... Read more »

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1 Answer | Asked in Estate Planning, Real Estate Law and Health Care Law for Massachusetts on
Q: What is a special needs trust?

I am legally blind and my husband needs to go into a nursing home due to a stroke. We own our house, Is there any way we can use the equity to pay nursing home costs. I am 86; he is 87

Nina Whitehurst
Nina Whitehurst answered on Nov 13, 2019

You REALLY should schedule a consultation with an elder law attorney. You might be eligible to have the government pay for his nursing home costs WITHOUT having to sell the house.

2 Answers | Asked in Probate and Estate Planning for Florida on
Q: My father had no will and my brother didn't even contact me to let me know he passed he is trying to take it all
Nina Whitehurst
Nina Whitehurst answered on Nov 13, 2019

Hire a probate attorney near where your father last resided to help you open a probate and petition to have yourself appointed as the personal representative of your father's estate. You can then ask the judge to order your brother to turn over all of your father's assets to be distributed... Read more »

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1 Answer | Asked in Estate Planning and Probate for New York on
Q: Am I legally allowed to be the administrator or a co-admin of my grandfather's estate while his son (my uncle) is alive?

My estranged uncle is petitioning to become the administrators of, first, his mother's estate (my step-grandmother), and then, second, his father's estate (my biological grandfather), essentially double dipping. My uncle had two sisters (my mother and aunt, both deceased). My mother had two... Read more »

Michael David Siegel
Michael David Siegel answered on Nov 13, 2019

You can object. As next of kin, he has priority, but the court can refuse him.

3 Answers | Asked in Estate Planning and Real Estate Law for California on
Q: What is the cost of a durable POA in CA? My sister resides in CA. She had a stroke in July; now in rehab facility in CA.

I need to obtain a POA for her. I'm in Florida. The only assets she has, to my knowledge, are 2 cars (in CA), a bank account (in CA - don't know if anything is in at this point) and some land in FL (which she was considering selling before her stroke). She also as a list of credit card accounts. We... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 13, 2019

Here is the California statutory power of attorney form available for free online: https://www.smclawlibrary.org/forms/PowerOfAttorney.pdf

However, it is very basic and does not cover many eventualities that you may want/need in the future. For a custom power of attorney, you should...
Read more »

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1 Answer | Asked in Estate Planning and Probate for New York on
Q: Do I have legal grounds to be the administrator/representative or a co-admin/co-rep of my grandfather's estate and why?

My grandfather died in 1994. He had three children (two daughters with his first wife, my grandmother, and one son with his second wife, my step-grandmother). Both wives have died. Both daughters have died. My mother had two children (both alive). My aunt had three children (two alive). My... Read more »

Nina Whitehurst
Nina Whitehurst answered on Nov 13, 2019

It does appear that you might be an intestate heir because your mother (grandfather's daughter) has died. Therefore, you have an interest in the estate. Therefore, you have standing to petition to be appointed personal representative of your grandfather's estate. Do not delay. If your uncle has... Read more »

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