Estate Planning Legal Questions

A Durable Power of Attorney is only effective while the person granting it is alive. Agents can be added to a Durable Power of Attorney by another agent only if the Durable Power of Attorney says that it can.  Most do not. Who is the principal, the person who named you and your brother to act for him or her as agents under the Durable Power of Attorney?  That person can sign new Durable Power of Attorney, revoking the old one, and naming the new agents.... Read Answer

Only a court can award guardianship.  Some courts and some state bar websites have lists of guardianship attorneys.  If you do not find any, you may find one on the website of the Special Needs Alliance. Hire a probate lawyer who practices in the county in which your father died to apply for you to have authority to settle his estate as the executor (if he left a Will) or administrator (if he did not).  You will then have authority to request his medical records.... Read Answer

This varies by location, lawyer and the complexity of the case.  One does not simply file and get Letters Testamentary.  There is a hearing.  The court appoints the personal representative.  The time to get a hearing also varies by location and by court.  Note that there are court filing fees.... Read Answer

If your father had a revocable living trust, his Will will only be submitted to probate and become a public document (which you can see online or via the local probate court clerk) if there was property outside the trust which passed not to designated beneficiaries but under the Will. If your father had a revocable living trust, it became irrevocable on his death.  If you were a named beneficiary of that trust and are over a certain age (say, 25), most states would require that you be provided with an annual accounting but not with the trust instrument itself. Please note that most of the time, particularly if there is a long marriage, a revocable living trust provides that everything passes to the surviving spouse.  Sometimes, when there are a lot of assets, the revocable living trust provides that principal or that whatever is left passes to the children on the death of the surviving spouse.  Occasionally, something is also given to the children on the death of the first spouse, perhaps so that they will not be "beneficairies in waiting" for the surviving spouse to die. ... Read Answer

It is the executor's duty to gather the assets, pay the debts, and distribute what remains according to the Will.  To do this, he must sell the house.  To sell the house, he must evict whoever is living there.  If there is no lease and no regular payment of rent, that person is a guest and can be asked to leave at any time.... Read Answer

Get a written lease (in exchange for caregiving), extending a certain number of months after your grandfather moves to a facility or dies.  Note that even with a written lease, your uncle can demand his share of the proceeds from sale of the house with a suit for partition.  This would require you, your family and your grandfather to move.... Read Answer

A controlling interest is not the same as ownership.  Company B stock belongs to Company A, not to whomever may have a controlling interest in Company A.  (1) Company B shares are part of the overall appraised value of Company A. (2) Because Company B stock belongs to Company A, not to whomever may have a controlling interest in Company A, unless the operating agreement provides otherwise, Company A retains ownership. (3) The co-owners can use stock, rather than cash, to buy out the decedent's interest in Company A only if (a) the operating agreement so provides and (b) the decedent's estate is willing to accept stock instead of cash. Please hire a local probate lawyer experienced in settling estates involving small companies.   This is not a DIY project.... Read Answer

No.  The house is not yours. As your probate attorney should advise you,  you should either (1) sell the house and, after paying the estate's debts, distribute the net proceeds three ways or, if it is not necessary to sell the house to pay the estate's debts, (2) file a Distribution Deed (formerly called an Executor's Deed) distributing the ownership of the house to you, your sister and your brother equally.  After that, your brother may choose to sell or gift his interest to you or your sister.  Another deed must be filed to accomplish this.... Read Answer

To avoid probate, which is truly not cumbersome or expensive in Georgia, you need to have all assets titled in joint name, or have beneficiaries identified for the assets, or you need to establish a revocable living trust. Not a living will. Most good estate planning lawyers can assist you with establishing a revocable trust.... Read Answer

Only your mother can sign her Will.  Only your father can sign his Will.  Depending on their levels of legal capacity, your father might be able to become your mother's guardian.  Consult with a local elder law attorney who also does estate planning.  You can find one near you on the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read Answer

Whether you can open an estate using a small estate affidavit or must file an application with the local probate court turns on state law and the size and nature of your father's estate.  Either is likely to cost more than $600.  If that is all he left (besides some old clothes and shoes), you may prefer to let the check go to unclaimed property with the state comptroller's office and, years from now, try to prove to that office who your father's heirs are.... Read Answer

That seems odd if you plan to act jointly.  However, if the trust agreement does not state that you must act jointly, your sister could act without you.  If she made a mistake, you could be financially liable as well.  Perhaps you should have it reviewed by an attorney and take steps, if needed, to limit your liability.... Read Answer