Estate Planning Legal Questions

I cannot think of one good reason.  A quit claim deed does not transfer title.  It is more properly used to document the quitting of a claim for use, such as an easement over someone's driveway to get to your property. If your father gifted his interest in the land to his sister in a Will and you are the executor or administrator of his estate, you may record a Distribution Deed (formerly called an Executor's Deed). If not, or if he did not leave a Will and you inherited the land and want to give it to your aunt, you can record a Deed of Gift (either a General Warranty Deed or a Special Warranty Deed).... Read More

Federal law prohibits a mortgage lender from foreclosing for six months after the court appoints an executor. An executor's duty is to gather the assets, pay the debts and distribute the rest according to the Will.  If there was no lease, the "tenant" is a guest.  If the tenant does not leave, the executor's duty is to bring an eviction action in small claims/justice of the peace court and pay the sheriff to enforce it.  Meanwhile, you can cut off the utilities and change the locks.... Read More

It is highly unusual for an estate to be in probate for 10 years.  It is also highly unusual for beneficiaries or heirs to wait 10 years to complain that they have not received a distribution. Without examining the deed to the property, the evidence of payments and nonpayments, no one can say what, if anything should pass to you and your siblings.  Please gather all the documents and take them to a probate attorney who practices in the county in which your mother lived and died.  But note that it may be too late for you to complain.... Read More

Only your grandmother can change your grandmother's Will.  Take the documents to a probate attorney who practices in the county in which your grandmother lived and died to see what can be done.   The approach depends both on how much time has elapsed and whether your mother changed your grandmother's Will or changed how she administered the estate as executor of that Will.... Read More

Please take whatever documents you have to a probate lawyer (preferrably one who does fiduciary litigtion) who practices in the county in which the people died.  Please also note that the Texas Estates Code now permits an heir or beneficiary or someone who can convince the Court that they are interested in someone's well-being to ask the Court to look into the actions of an agent under a Durable Power of Attorney.... Read More

The fact that you paid for the property actually doesn't really have any bearing on ownership. If you paid for a property that was partially owned by another person, you made gifts to that person each time you made a payment that benefitted them. You don't provide one critical fact: How did you and your mother hold title to the property? If the deed clearly states that you held it as joint tenants or with rights of survivorship, then you are likely correct, and you are likely now the sole owner of the property. However, if you and your mother were both listed on the deed as owners, but the deed did not specifically and clearly create a joint tenancy with rights of survivorship between the two of you, then, assuming it is a Georgia property, your mother's interest became part of her probate estate at her death and passed either under her Will (if she had one) or under the Georgia intestacy rules if she didn't have a Will. In either case, your sister may actually own an interest in the house, because she may have received a share of your mother's interest. You should ideally sit down with an attorney and figure out what exactly happened. The attorney will need to look at the deed (which is not the Security deed, but is generally a Warranty Deed, Limited Warranty Deed, or Quit Claim Deed) for the property to see how it was titled. Depending on what that says, you may then need to have the attorney help you figure out what happened when your mother passed away. Best wishes to you.... Read More

Please check out my firm's website: www.morgandisalvo.com We have posted a large number of articles, many of which discuss the difference between a Will and a trust, the reasons that you might want to use a revocable trust vs. a Will, and other issues that relate to your question. If you want detailed advice on whether you should consider doing any kind of trust, revocable or irrevocable, or whether you will be okay just using a Will that will create trusts for your children if you die while they are still young, then you really need to schedule an estate planning consultation with an estate planning attorney. Best wishes to you.... Read More

As executor, you are also responsible for filing your father's final tax return and for paying those creditors who come out of the woodwork.  As your probate attorney may have advised you, it can be hard to claw money back once it is gone.  You will be personally liable for these expenses if you cannot.  Please note that this would be only a partial accounting and an initial distribution.  There is no way for anyone on this listserv to determine if/when the house will sell, what the net proceeds might be and whether they are likely to cover anticipated and unanticipated future expenses. Beneficiaries all want "their" money the moment someone stops breathing.  That is no reason for the executor to wind up holding the bag.... 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). After the court appoints you executor (the Will only names you), you can open a bank account in the name of the estate and deposit the check. If your mother's estate consists of more than the check, it could be financially worth your while.  If not, it may not.  If it is not, you can let the check go to unclaimed property with the state comptroller and in four to six years (it varies by state), submit documents to show that you are entitled to the money.... Read More

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 More

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 More