Estate Planning Legal Questions

Yes, you could have both so long as you only put your separate property in the individual trust and don't have a prenuptial or postnuptial agreement that prevents you from doing so.   Whether you can amend the joint trust if your spouse passes away first would depend on the terms of that trust.   As for the pros and cons, it really depends on your assets, motivation in setting up a second trust, and overall concerns and goals.... Read More

Hello.  I'm sorry to hear about the loss of your husband.     If this is the only asset that you are dealing with, you may be able to open a small probate estate and obtain a Petition and Order for Assignment to receive the funds.  The value of the asset must be under $24,000, which I would expect with a HSA.  You would also have to prove that his funeral bill is paid and provide a receipt.... Read More

Hello.  I'm sorry to hear about the loss of your Father.  Whether you or your siblings are entitled to any part of your Father's Estate depends on many factors.  If your Father died without a Will, the Michigan laws of intestacy would dictate how his Estate is distributed.  If he has no children with his current wife, she would be entitled to a portion off the top of his Estate and a percentage of the remainder.  The other percentage of the remainder would typically be distributed equally to his living children.  But there are other factors that can affect this.   If your Father died with a Will, once the Estate is opened, you are required to be notified.   If your Father died with a Living Trust, only beneficiaries of the Living Trust are generally notified and the administration process is not public.   Additionally, there could be assets that won't require probate administration because he named a joint or successor owner, or a beneficiary.  ... Read More

It all depends on whether the deed is a tenants in common deed or a joint tenants with rights of survivorship deed. If it is a joint tenants with rights of survivorship, you need to do nothing.  If it is any other kind of deed, some action in probate court will be required.  It might be as simple as a Petition for Year's Support or a Petition to Appoint Permanent Administrator.... Read More

I'm not exactly clear on what your question is, but it appears to relate to how you could step in as successor trustee of the trust. Unfortunately, there's no way to answer that question without a lot more information that can be provided in this kind of forum.   The first place to start when figuring out who becomes successor trustee of a trust when a serving trustee stops serving is the document that actually creates and contains the terms of the trust, plus any later documents that might have affected the trust's terms. Since the attorneys are trying to find your grandfather's Will, I assume that the Will is what created the trust. If that Will was filed for probate (in NY or elsewhere), then the probate court should be able to provide a copy, although if it was filed in 1972 it can take a while for them to pull up that record, so hopefully it will eventually turn up. If the Will was not filed for probate, then it may be that a separate document created the trust- in that case, you'd need to get a copy of that document (hopefully your father had one). If the trust was created in part by state law, however, you'll need to see what the applicable law said.   If whatever document controls the trust does not provide for a successor Trustee and does not address the question of how to select one if one is not named, then you will need to look to applicable state law (which may actually be NY law if the trust was created by a NY Will, even if the trustee and beneficiaries are all in GA and the trust was being managed here), and figure out how to make it happen. A court petition may be required, and you'll need to figure out what is required for that petition to be filed and granted.   If there are already attorneys involved (it sounds like there are), then you should let them figure things out. If at some point it looks like they aren't figuring it out, then you can hire a different attorney. I recommend hiring an attorney who works with fiduciary litigation as well as general trust and estate administration- that kind of attorney is most likely to have the experience and knowledge needed to help you figure out what needs to happen and get it done.   Best wishes to you.  ... Read More

I highly recommend against co-ownership.  There are issues with liability, gifting/ Medicaid, finances and taxes that can arise.  The two main ways that you can transfer property without probate are through the use of a Trust, or setting up the title to the asset to pass to a beneficiary via a transfer on death designation.  Keep in mind that you will probably want to ensure that your children recevie a step up in basis when they inherit the asset to reduce any capital gains tax that they may need to pay.  You may want to sit down with an estate planning attorney to review the specifics of your situation and advise you. Best of luck.... Read More

Yoou could try.  Depending on the county you are in, some county courts, which exercise probate jurisdiction, sometimes allow individuals who are not lawyers to represent themselves.  Probate courts in larger counties, like Dallas or Houson will not let a non lawyer represent themselves.... Read More

Without a Will the rights to the inheritance are governed by Section 2105.06 of the Ohio Revised Code. (link below)  The fact that the great granddaughter was living with your mother does not change any rights of inheritance.  If your brother is properly administering the probate estate is a whole other issue and is too complex for a quick answer on this forum.  If you're concerned about your rights, then I suggest sitting down with a probate attorney who practices in the county where the probate case has been opened. https://codes.ohio.gov/ohio-revised-code/section-2105.06 Best of luck.... Read More

I'm sorry, but I can't tell from your post what your question is. I do want to point out a couple of things, however, in hope that the information helps you some. But if none of this answers your question, you will need to post another one with more information.   A "Living Will" does not transfer property. It's a document that says what kinds of medical treatments or other life-support measures one wants if one is incapacitated and either terminally ill or in a permanent coma or vegetative state.   I assume you mean that your mother had a Will (or a "Last Will and Testament". She may also have had a revocable trust, which is often called a "Living Trust." If your mother moved from Georgia to Florida, then ideally she would have updated her estate planning, including any Will, revocable trust, Power of Attorney, Advance Directive for Health Care, or Living Will documents. That's because what works in Georgia is not exactly the same as what works in Florida, and so if you change states, you ideally should eventually update your documents to reflect the laws in the new state and not your former state. However, your stepfather would not normally have any legal power to change your mother's Will- if you believe that he actually did forge a Will, or if he essentially forced her to change her Will (or other estate planning documents), then you may be able to challenge the document in question. Since she was in Florida, you will need to speak with a Florida attorney about what rights and options you might have.   As for the part about your grandmother's house: if your mother owned that house in her own name, and if it was not subject to any kind of legal restrictions imposed by your grandmother's estate planning documents or the deed, then most likely your mother (or someone acting on her behalf) had the legal right to sell it, even if you were expecting to receive it someday. If you believe that there WAS some kind of trust or deed-based restriction on the property, however, then you'll need to actually talk to an attorney about how the property was owned before the sale. The attorney can then investigate your claims and tell you if you have any rights and how to go about pursuing them if you do.   Best wishes to you.  ... Read More

In order to ensure protection against a claim by your spouse, this will require estate planning by your parents.  Simply adding your name to title while they are still alive and while you are married is problematic.  Estate planning can not only help protect against a future divorcing spouse and creditors, but there are also tax benefits to transferring assets through death.   ... Read More

The answer is going to depend on a number os factors and is too complex for a simple response on this forum.  In order to create a valid Will the person signing must have "testamentary capacity."  This is a relatively low standard.  Moreover, even if someone has good days and bad days, as long as they are having a "lucid interval" and can meet the standard for testamentary capacity at the time the Will is signed, the Will should be upheld.  All that being said, there may be some exploitation or undue influence concerns based on what facts you provided.  I highly recommend sitting down with a probate attorney in your area to review the situation in detail and advise you of your options. Best of luck.... Read More

Hello, Even though you have the POA, I reccommend, if she is able, for your mom to sign. That way there can be no question of the authority to sell. With respect to taxes, the first $250,000 gain on the value of a home is exempt from taxes. Your tax preparer will be able to assist you in claming this. Best of luck to you.... Read More

A very open ended question.  A very open ended answer is "It depends!" And it does, there are so many things that go into designing and implementing an estate plan that accomplishes your goals based upon your assets, beliefs, wants, etc, that it is impossible to answer without knowing a great deal more. Suggest you engage an estate planning lawyer to assist you.... Read More

It should be pretty easy.  Your Trust should tell you how to phrase the transfer and look something like this: ----------------------------------------------------- For the consideration of Ten Dollars, and other valuable consideration, I, Jane Q. Public, formerly known as Jane Q. Single, do hereby convey to JOHN Q. PUBLIC and JANE Q. PUBLIC, Trustees of the JOHN AND JANE PUBLIC LIVING TRUST, dated September 35, 2021, and any amendments thereto, the following real property situated in Maricopa County, Arizona: -----------------------------------------------------------   Best wishes.... Read More

No, living in the house gives him no additional rights to ownership after the owner dies.  Assuming no major creditors of you sister's estate (which could be you if you claim that you are owed something for the work you did on the house), ownership of the house would pass pursuant to her will.  If no will, it would pass by the laws of intestacy.  I am not familiar with the Pennsylvania intestacy statutes, but they likely provide that, if there are no surviving children or grandchildren (or parents) it owuld be divided equally between the surviving siblings.... Read More

Hi, If I am understanding the background to your question correctly, your father had a Trust made in 2004. Do you know if it was revocable or irrevocable? Then, he created a new (revocable?) Trust with his (new?) wife in 2008.  The new trust is completely new, but no assets were added. As described, your situation is hard to respond to.  Usually, when a person has a trust but then creates a new one, the new trust is often done as a Restatement of Trust.  This is a re-designing of the first trust, but keeps the same name.  The benefit is that it provides a whole-sale re-accomplishment of the trust but, because the name doesn't change, the property that was titled in the name of the first trust is automatically part of the restatement. Additionally, the new trust (restatement or no) usually includes language stating that any previous trust or will is revoked by the new trust.  So, the old trust documents should be destroyed.  Any personal property that your father documented as being in the old trust, should be carried forward into the new one. With respect to vehicles, it's pretty common that, unless they are special collector's edition vehicles (classic old cars or specialized vehicles), many estate planning attorneys advise their clients to not title the vehicle in the name of the trust because people don't usually keep cars for longer than 5-10 years and re-selling or trading in can be problematic because banks prefer them to be titled in a person's name.  That being said, if your father's new trust is a re-statement of the old trust and he had titled his vehicles in the name of the trust, then the vehicles will still be part of the trust.  If that is the case, there is nothing for you to do. Hopefully this answers your question.... Read More

Assuming there is no will, then the land should have been distributed to your grandmother’s spouse, if living at the time of her death, and to her children living at the time of her death. Children who died, but have children, will have that child’s share distributed to the deceased child’s children.  ... Read More

Hello - I am an attorney in Oregon. You have 2 options to accesst the funds in your brother's bank account. First, a  bank may, but is not required to, disburse a deceased depositor’s account of $25,000 or less if the claimant furnishes the affidavit prescribed in ORS 708A.430(2). So, if you can point that process out to the bank they likely have a form of affidavit that you can sign to get access to the funds. Second, you can file a small estate affidavit in the probate court of the county where your brother lived. Unfortunately the cost of filing this affidavit would be almost as much as what is left in the account. So, this may not be a viable alternative. You can likely get a form of a small estate affidavit from the probate court where it would be filed. Hope that helps.   John SorlieBryant, Lovlien & Jarvis... Read More

It is my practice, and that of many estate planning attorneys, that a trust be witnessed by two persons that are unrelated by blood or marriage to the grantor, as well as being notarized.  If the orginial trust was witnessed by two people and notarized, I would follow that and have the amendment witnessed as notarized as well.  ... Read More