Estate Planning Legal Questions

There are a lot of moving pieces in the scenario you described.  Additionally, it looks like your question was cut off.  From what you describe, you really do need to retain a probate attorney to review your situation in detail and figure out a game plan.  I suggest finding an attorney in or near the County where your husband resided prior to his passing.  Every County has its own probate court with their own way of doing things. Best of luck.... Read More

You can either open an estate or let the check go to unclaimed property with the state comptroller's office and, after four to six years (It varies by state), submit proof of who the heirs are to attempt to reclaim it.  The preferred approach turns on whether your mother left anything beyond the final paycheck.... Read More

Generally speaking, yes, everyone needs a Will.  While estate planning is an unpleasant subject to discuss, it's something that needs to be addressed.  If nothing is done you're stuck in the probate court for potentially a very long time.  You have no control over how your affairs are managed, who is involved, and who gets what.  You also have the ability to nominated a guardian if you have any minor or disabled children.  If nothing else, it will make a difficult time a little bit easier to get through. Best of luck.    ... Read More

Has the Will been probated yet?  Under Ohio statutes you have strict guidelines on how a Will is contested, and how long you have to file such an action.  Unless an asset is set to pass outside of probate (e.g. beneficiary designation, or joint owner with rights of survivorship), an asset which is owned by a deceased person cannot legally be sold until a probate estate has been opened and the Court has issued letters of authority to the administrator of the estate.  As Ms. Garrett suggested, you may want to sit down and discuss the situation with an attorney. Best of luck.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. When one of the joint owners of property dies, that does not necessarily mean that the surviving owner has to sell their share of the property. However, the heirs of the owner that died can attempt to force the sale of the property through a partition and sale action depending on how the property was originally held (if legally held as tenants in common as explained below). So, it is not automatic that the property has to be put up for sale. Either one or the other owners can buy out the other owner or owners or there is a sale to a third party. If the owners do not agree to the sale, one of the owners can attempt to petition the court to force the sale of the property in a partition and sale action. Note that when there are multiple owners of properties, the owners can own the property as tenants in common or joint tenants of rights of survivorship. If the deed says with joint tenants with rights of survivorship, then the surviving owner inherits the property. If the deed does not say joint tenants with rights of survivorship, then it is presumed to hold as tenants in common wherein each owner's heirs inherit their share. If you need any assistance, a New York Trusts & Estates Attorney could help you.... Read More

Please accept my condolences on the loss of your father. As for your question, something is odd about what you are saying you've been told. If the property was owned by your father when he died, then either (1) the title to the property is still in his estate, because he was either the sole owner or he owned his interest in the property with other owners, but as tenants in common, or (2) the title to the property actually belongs to other people already, and no part of it is in his estate, either because he and the other owners held the property as joint tenants with rights of survivorship or because he died without any valid Will in place and the property passed to his heirs at his death under Georgia law, subject to being pulled back into his estate by the appointment of an administrator. If your father's interest in the property did not pass automatically to you and your brother as surviving joint tenants, then you and your brother should not be able to sell the property at all until his estate is opened, UNLESS you are selling it as his only heirs, he had no Will, and his estate has not been opened for administration. However, in that case, the check should be made out directly to the two of you, not to your father's estate. If you are being told that the check should be made to the estate, and the estate has not been opened yet, you should not be able to even sell the property until the estate has been opened. You need to hire a probate attorney who can sit down and actually review all of the relevant facts of the situation and guide you on what to do and what to tell the person who is trying to make out the check. If you need to open the estate, the probate attorney can help with that. If you and your brother really don't need to open the estate, then the probate attorney may be able to help you explain that to the real estate attorney and get the check made out directly to you. This kind of forum does not allow anyone to provide you with that kind of situation-specific legal advice, however. Best wishes to you.... Read More

A quit claim deed does not transfer title.  It merely records that one person quits their claim to use someone else's property, as in using a neighbor's driveway.  Hire a local residential real estate lawyer to file an action to quiet title, undoing the fraud.  Consider asking the lawyer to educate your exwife on the possible suit for fraud as well.... Read More

Wills cannot be changed legally using a power of attorney. You cannot challenge that until the person dies and the will is offered for probate.   As for the property disappearing, you can file for a guardianship over the person and have the power of attorney declared invalid.  You should discuss this with a lawyer specializing in guardianship law.... Read More

Hello. My name is Damien. I am a Trusts & Estates attorney in New York City practicing in the New York City metropolitan area. Generally, in order to sell the property when there is a life estate, all of the life tenants and remaindermen have to agree to the sale. Yet, a remainderman could sell, assign or transfer his or her interest in the property, but the buyer would have to take the property subject to the rights of the life tenants and other remaindermen. In other words, in effect, if all the life tenants and some remaindermen agree to sell their share of the property, the remaindermen who did not sell their share would remain as property owners holding the property as tenants in common with the new buyer or buyers. So, it is possible to argue that a contract among the other parties to sell their share of the property remains valid while the remainderman who did not agree to sell her or his property interest would keep her or his property interest and become a tenant in common with the other buyer or buyers. If you need any assistance, a New York Trusts & Estates Attorney could help you. If you wish to speak on the phone about it, you can call Damien Bosco, P.C. at (646) 452-7082 or email me at DamienBoscoEsq@gmail.com... Read More

All  too frequently, family members empty out the house before the funeral.   If your mother had a Will, all her assets should pass according to the Will.  If she did not, you can hire a probate lawyer who practices in her county to file and Application for Determination of Heirship and be named to administer her estate.  You can then sue your brothers for conversion (converting the estate's property to their own).  The value of the property, your evidence of its existence and your evidence of who took it may help determine whether this is a feasible or financially sensible approach.... Read More

Putting your childrens' names on the title is giving them a gift.  This may disqualify you for Medicaid for months or years if you need it within five years of changing the deed. Putting your childrens' names on the title is not necessary for the home to not be counted in determining your eligibility for nursing home Medicaid. If you want your home to pass to your children free of Medicaid estate recovery, consult a local elder law attorney about a transfer on death deed.  You can find one near you using the website of the National Academy of Elder Law Attorneys (www.naela.org).  ... Read More