Estate Planning Legal Questions

You are correct that having your children as co-owners will limit your ability to get a reverse mortgage -- if they are not both over 62. But a quit claim deed cannot pass title.  Title can be passed by a deed of gift in the form of either a general or a special warranty deed.  (A quit claim deed is more properly used to record that one quits claiming a right to use something, such as an easement.)... Read More

In most states the executor is not allowed to purchase property from the estate as that would be seen as a conflict of interest.  In most states, after a certain amount of time has passed, any beneficiary who has not received a distribution can ask the court to replace the executor. In most states, a beneficiary who inherits part of a property can sue for partition, forcing partition or a sale. Contact a local probate attorney.... Read More

You cannot cash the check without opening an estate.  If you do not want to open an estate, you can wait four to six years (it varies by state) for the funds to go to the state comptroller and go through the document-heavy process of proving that were there an estate, you would inherit and try to get the money that way.... Read More

Inform the first lawyer that absent a clear and complete written explanation, she will be filing a grievance with the state bar.  Direct that the entire file be sent to the second lawyer.  Make an appointment to discuss the status of the matter with the second lawyer (in person or by Zoom).  Review all pertinent documents before the appointment and make a list of observations and a list of questions.... Read More

The Will should have been submitted to a court for probate (proving), the house sold and the net proceeds split three ways.  In some states, it can still be submitted to pass title.  Without title in the name of the three people to whom it was left, it cannot be sold. The three people can enter into a family settlement agreement, submitted to the court, in which the brother can pay his 12 years of overdue rent (or any other amount) in exchange for the sisters' shares (or part thereof).... Read More

First, your father's estate must be probated by a Court heirship proceeding, small estate affidavit or Affidavit of Heirship, passing his interest to your mother (if all his children are her children). Second, if your mother lacked legal capacity to contract when she "sold" the lots to your sister, report elder exploitation to Adult Protective Services. Third, if the person who purchased from your sister did not know all this, your remedy is to sue your sister for the money she got from selling the lots. You may be eligible for free representation through Volunteer Legal Services or discounted representation through the Modest Means program of Lawyer Referral Service in your area or through a clinic at a nearby law school.... Read More

First, your 401k passes to your spouse under federal law and then to any designated beneficiary on a form you complete and file with the plan administrator.  It should not pass under your Will, but will if you have no spouse and have not completed and filed a designated beneficiary form. Second, if your bank accounts are "joint with right of survivor" or "pay on death," they, too, pass outside your Will. Third, your house can pass outside your Will and free of Medicaid Estate Recovery using a Transfer on Death or a Lady Bird Deed. Fourth, if the royalties are mineral rights, this approach could also be used. But you do need a Will, if only as backup.  Some title companies are uncomfortable with Transfer on Death and, to a lesser extent, Lady Bird Deeds. If you get an online Will (and I have seen those prepared by several vendors), it is likely to be inadequate and you are very likely not to execute it with all the legal requirements, leading to an intestacy.  The Will will not be worth the paper it is written on.  Moreover, those vendors have no skin in the game.  An attorney not only risks a bad online review, a loss of reputation at the court and among colleagues, but a malpractice suit -- and you benefit from the required malpractice insurance.  Until the Texas Supreme Court creates a Will form (which it has been working on for years), you and whomever you want to leave things to, are much safer with a Will drafted by an attorney and addressing your particular circumstances.  You will also find that a good estate planning attorney will provide much more than a Will:  documents to help you stay in charge of your medical care and finances while you are alive, information sheets and guidance for your executor, and counseling building on the information above.  You can be penny wise and pound foolish, or pay extra to an online vendor for a few other documents and risk going without important legal, tax and financial counsel, but is that really what you want?  ... Read More

It should be listed in an Amended Small Estate Affidavit.  After an Order approving the Amended Small Estate Affidavit has been signed, a bank account should be opened in the name of the estate and the check deposited.  The funds should then be distributed to the heirs according to the state's laws of intestacy.... Read More

To answer your specific question: to add a new owner to a deed, the existing owner has to execute a new deed that transfers the property to himself and the new owner, either as tenants in common (which will NOT cause the property to transfer automatically to the surviving owner if one owner dies) or joint tenants with rights of survivorship (which WILL cause the property to transfer automatically to the surviving owner if one owner dies). After the new deed is signed by the existing owner, witnessed, and notarized, it has to be recorded with the Superior Court for the county where the property is located. To mention some additional and very important things: Ideally, you should NOT use a quit claim deed to make this transfer; instead, a Limited Warranty or Warranty Deed is likely better. A quit claim deed may cause you to lose the benefit of title insurance you might have purchased. And please note: preparing a deed is NOT a good do-it-yourself project. Any mistakes can cause the transfer to go wrong, which can lead to you having title problems that could make it difficult or nearly impossible for you to sell the property or refinance it in the future. Get a real estate attorney to prepare the proper deed. And please consider consulting an estate planning attorney to make sure that adding your wife to the deed is actually what you want to do. You will be making a gift to her when you do so, and you will not be able to simply take the property back. And if you do decide to proceed with the change, the decision regarding whether you and she will own the property as joint tenants or as tenants in common is a potentially big one. There are benefits and negatives to both forms. Best wishes to you.... Read More

This varies not only with the attorney and the location but also with other factors not mentioned (such as whether you want to plan for your retirement years or just for your death).  For an elder law attorney near you, please see the website of the National Academy of Elder Law Attorneys (www.naela.org).... Read More

It is up to your parents to decide to whom they grant a Durable Power of Attorney and to name successor agents if the person they name is unable or unwilling to act.  While some lawyers require that an agent under a Durable Power of Attorney provide an accounting to the siblings or others to prevent suspicion, others think it will lead to discord as those who are not the agent may go over it with a fine tooth comb and question the agent's decisions.  Some lawyers advise have co-agents (two, not three) for major decisions such as liquidating investments or selling the house, with the co-agents to act together.  Appointing three co-agents increases the chance of disagreement and failure to act timely if they must act together and of "the right hand not knowing what the left hand is doing" if they do not.  It is generally not recommended for the day to day responsibilities which you describe.... Read More

Each child inherits an equal share.  If some would like to gift or sell their share, they may.  If others would like to inherit their share, which may force the house to be sold, they may.    If you think that there is a conflict of interest, you may oppose someone's appointment as personal representative and ask to be appointed yourself.  Alternatively, after a certain amount of time (typically two years) has passed and you have not received a distribution, you can ask the court to replace the personal representative.... Read More