Estate Planning Legal Questions

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

Because your Father post deceased (died after) your grandmother, his distribution would go to his estate, and eventually to his heirs. So, if your sister and you are his only heirs (presuming he has no living spouse and you have no other siblings), and there is no Will, then you and your sister would inherit from his estate. Someone has to represent his estate to collect the money and distribute the money to your sister and you. Note that if he died before your grandmother, then you and your sister would directly inherit from your grandmother's estate. But since he died afterward, there has to be someone who has the authority to collect the distribution from your grandmother's estate to distribute to his heirs. Because this amount is less than $50k, it could be possible to use a small estate procedure. According to the court's website, the small estate administration is a simplified court procedure available if the person who died (the "decedent") did not have many assets. To do this you need to file a form called an "Affidavit of Voluntary Administration," also known as the "small estate affidavit." Here is a link to the court's website for  more information: https://www.nycourts.gov/courthelp/diy/smallEstate.shtml I hope this helps you better understand the issues. Best regards.  ... Read More