Estate Planning Legal Questions

It is not necessary to create a trust to pay someone's medical bills.  Grandmother can pay them directly while she is alive with no tax consequences to her.  If she likes, she can create a trust (either stand-alone or in her Will) which will pay the bills.  She should note that the income tax brackets for trusts and estates are compressed, meaning that it need earn less money than an individual to be taxed at a high income tax rate.  This is a good reason to have the trust be funded only when, due to fraility, disability or death, she is unable to make payments directly.... Read More

You and you boyfriend should sign and record a deed naming both of you as tenants in common (having undivided interests in the entire property) or as holding "joint with right of survivorship" (meaning that the survivor inherits the entire propety).  If this cannot be done, loan your boyfriend the money, at interest, with a promissoy note and a recorded mortgage (deed of trust).  If you do neither, you have made a gift.  If the amount is over $15,000, file a Form 709 with your 1040 and pay the tax.  As Shakespeare warned us, "The wont of men was ever so:  one foot on sea and one on shore; to one love faithful never."... Read More

A Will has no legal effect until a court admits it to probate (proving that it is the Will of the person who died.)  A person named as executor in a Will only becomes the executor when a court appoints him and issues Letters Testamentary, giving him legal authority over the deceased's property, authority to pay the bills as state law requires and to distribute what remains according to the Will.... Read More

The attorney has no obligation to speak to you:  you are a beneficiary, not the executor. Once a Will has been submitted for probate (proving that it is the Will of the person who died), it becomes a public document.  If the court's file is not available online, you can ask the county probate clerk.  You can also check your state's timelines.  In most, enough time has passed that a beneficiary can request an accounting.  If it is not produced (usually within 30 days), the beneficiary can ask the court to replace the executor.... Read More

Please talk with a probate attorney who practices in the state in which your other and stepfather lived and died.  She may not be able to locate whoever drafted the Wlls back in 1993/1994.  That attorney may not have kept a copy of them. If so, he can advise you on how to handle an heirship (the route taken when there is no Will.)... Read More

While some county probate courts will hold a Will in safekeeping, most people find the Will, if there is one, somewhere in the home or the safety deposit box.  If your probate attorney is a member of a state probate lawyers' listserv, she may be able to ask who prepared the Will.  But not all lawyers keep a copy of the Wills they draft.... Read More

If something, such as a POD account, passes outside the Will, it is only clawed back if the estate which passes under the Will is insufficient to pay expenses. Some states have an inheritance tax.  Some states have an income tax.  Federal income tax applies to all income, including through a POD account.... Read More

Hello. My name is Damien. I am an attorney in New York City.   I understand you are unhappy with your Last Wills and Testaments. Generally, you could either have someone draft new Wills or attempt to modify the Wills as you were mentioning through a Codicil, which is an additional document that requires the same statutory execution (signing) requirements. Because of the type of software that an attorney can use now to draft Wills, it is rare to use a Codicil in today's day and age. One reason is the chance the Codicil could be lost and/or later challenged and depending on the number of changes it could confuse the issues.  Basically, the cost would be the same. So, the best practice in most cases now is to draft new Wills, revoking the previous Wills rather than attempt to modify them with a Codicil.  It is up to you how you would want to proceed.    If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone  to further discuss it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read More

Depending on the nature of the changes, you may be able to make an amendment, called a Codicil, rather than making new Wills.  But a Codicil is not a DIY project.  It should be carefully drafted to "republish" the parts of the Will which are not changed.  It must be executed with the same formality as the Will.  Talk with a local estate planning lawyer.... Read More

Yes, he has to follow the instructions in their estate plan documents.  Your rights as a beneficiary to your sister's estate would depend upon the terms of the estate plan.  You should consult with an attorney to review the estate plan and advise you as to your rights and options.... Read More

Hi Joseph:  My name is Damien. I am an attorney located in New York City. If your father still has his mental capacity, he can still execute (sign) a Will. He would need to have two witnesses (and if you are a beneficiary, you cannot be a witness). Generally, it is best to have an attorney draft and supervise the Will signing even when the testator (your Father) has limited assets.  If you need assistance, a New York Trusts & Estates Attorney can help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082.  ... Read More

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