Estate Planning Legal Questions

If your husband had predeceased his now deceased sister, the funds would flow according to her Will, if any, or according to the state laws of heirship to his children but not to his spouse.   If your husband died after his now deceased sister (as appears to be the case), the funds would flow to his estate.  If his Will named you as a beneficiary, they would flow to you (in part or in whole depending on whether he named others as beneficiaries as well.)  If he had no Will, the funds would flow to his children under Virginia laws of heirship and subject the the spousal elective share in Virginia.... Read More

If that is all your son left, you may not need to go to court but you will need to file a Small Estate Affidavit, wait for the judge's signature and find a bank which will accept it.  In any event, we have had independent administrations in Texas since 1843.  Probate here is neither as expensive nor as time consuming as you may imagine.... Read More

The death certificate must be obtained.  In most states a small estate affidavit can be filed with the court and, when approved by a judge, used to access assets.  But to access medical records, your wife will have to apply to the court to determine heirship and appoint her the administrator.  Only the executor of a Will or, if there is no Will, the administrator of the estate, is entitled to these.... Read More

Most states will admit a Will written in another state to probate if the Will was valid in the other state when it was signed. Administration of a trust is governed by the law of the state where it is administered.  Other concerns (investment, distribution, etc.) are governed by the law stated in the document.  If you create a Floirda trust and later return to New York, only the law governing administration will change.  The Florida law provisions governing the trust itself will still be enforceable.... Read More

If it is apparent that the named executor lacks capacity or may lack the capacity to perform the duties of the executor, and the testator (the person creating the Will) is still living an has the mental capacity to update a current Will or create a new Will, then it would seem the best way to proceed is for the testator to create a new Will naming another executor. Nowadays, because of software, drafting a new Will is the preferred way rather than using a codicil to modify an existing Will because sometimes codicils are lost. If the testator does not want to update the Will and the named executor lacks capacity, upon the death of the testator, the successor executor named in the Will could offer the Will for probate and inform the court that the named executor lacks the capacity to perform the duties as the executor. If the executor did have some capacity, the executor could renounce the appointment. If there is no successor executor named in the Will, then usually another heir would offer the Will to probate and explain that the executor does not have the capacity. The court may appoint a guardian ad litem to determine if the executor has the capacity although it is unclear the court would do so. It is less likely that a person who has the Power of Attorney for the executor would be named the Executor rather than another heir. So, because of all this uncertainty, it is better for the testator to revise or create a new Will. ... Read More

A Will has no legal effect until a court admits it to probate.  Your sister may be able to gift you some personal items while she is alive, make her bank accounts "Pay on Death" and may or may not be able execute deeds which transfer title on her death.  See a local estate planning lawyer.... Read More

Medicaid is paid by your fellow tax payers out of the general tax revenues.  That is why you cannot simply transfer all your property to your children and expect strangers to pay for your care.  Anything transferred for less than fair market value in the 60 months before you apply will delay the time before Medicaid will pay, perhaps by years.  You can, however, enter into an irrevocable prepaid funeral polcy to pay for your cremation.  Please note that your children are not responsible for your bills -- but you are.... Read More

Hello: I am an Attorney in New York. The named executor in the Will can petition the court to probate the Will to represent the estate to gain access to the premises of the decedent. When there is a need to act fast, the executor can request preliminary letters testamentary. An executor named in the Will may file with the court a written request for issuance of preliminary letters testamentary. One reason is to obtain access to the premises of the decedent to preserve and inventory assets. At the same time, if the decedent had been living with someone at the time of death, that person has a right to stay on the premises as a tenant that is entitled to proper notice to vacate the premises according to the landlord-tenant laws. If the tenant is refusing access, there may be a need to request judicial intervention to get a court order for entry.... Read More