Trusts Legal Questions

Please accept my condolences on your loss. It does sound like you are likely the only heir. One question is whether or not your brother had a Will. If he had a Will, then it will likely need to be offered for probate. If he didn't, you will likely need to file a Petition for Letters of Administration. However, before you rush into this on your own, please consider having an experienced probate attorney sit down with you to go over as much as you know about your brother's entire situation. It may be that opening the estate would just expose you to liability risk without much payoff, if he has significant debts. In addition, an attorney's help can make the whole probate and administration process as easy and inexpensive as possible; if you don't have that help you can end up costing yourself more time and money than you might have had to pay otherwise. You might also end up making mistakes that can result in your becoming personally responsible for his debts. If you think you really can't afford an attorney, then at least check with the probate court that would have jurisdiction over your brother's estate: they may have a probate information center staffed by volunteer attorneys that can provide at least some help. One other thing: if the only significant asset in your brother's estate is likely to be the Social Security claim, you may also be able to collect that directly from Social Security as his heir, without having to open the estate. You will need to look into that possibility. Again, having an attorney may help. Best wishes to you.... Read More

Figure out how the house is titled - look it up in the county records.  You will be able to see the original deed that was recorded when the house was purchased.  Have an attorney prepare a new deed, and send it with a demand letter telling your father its his obligation to sign it over to be in compliance with the trust, if he refuses, you can make an application to court and ask for him to have to pay the attorney's fees. ... Read More

Ok, these matters are very complicated and you've given me very few facts: 1. Did your mother die in FL? What county? 2. I presume there is a will as you said cousin is executor. Do you have a copy of the will? 3.  Are you a beneficiary under a will  4. Did your mother die having a trust as well?If there was a trust is cousin the successor trustee? 5. Was your mother survived by a husband? 6. Was mother's house her FL homestead?  7. Are there other beneficiaries and if so what were they to receive? &. Personal representatives (executors) do not have authority to sell homesteads so I assume that he actually owned the property by virtue of a will or trust. This is confusing. 9. What are the assets that your cousin controls? It sounds like your cousin might have been named as trustee of a trust for your benefit, although you would have a right to know about this if this were the case.... Read More

Yes you should have access to the money by now.  On what basis does she refuse to give you the money?  Has she refused to give you information about the account?  There is certainly a court proceeding that will result in getting you information and the money.  Are you prepared to "sue" your mother?  That's a tough emotional choice. ... Read More

Your assessment of the situation is troublesome.  You do not say what your suspicions on the first lawyer were.   There are bad people in all professions and walks of life.  If you have hit upon two, either your process for choosing your counsel is flawed or you have terrible luck.   My advice is to hire the very best lawyer you can find who LIMITS his or her law practice to trusts and estates.  The attorney's hourly rate may be higher than you like, but this generally reflects higher expertise.  That "top of the head" knowledge alone often results in significant time and money savings due to less need for information and precedent research and figuring out how procedures work.   Do not engage any laywer without a written engagement letter that spells out the service to be provided.  You actually provide a lot of the information the lawyer needs to assist you. Be organized. Your job is to pay all the bills and debts, file the final tax returns and follow the dictates of the trust. If anything that should have been in the trust did not get titled to the trust, you may have to probate as well.   These things do take time. If you think you have a procrastinator  as an attorney and you want to move things along, set a monthly appointment to basically insist on your own deadlines to have items accomplished.  Taking a long time does not necessarily mean it will cost more.  It usually means nothing is being done and thus no fees are being generated.   If you choose to move to a third lawyer, do your research.  Look for credentials and experience, specifically in handling estates and trusts.  To your success, Gale Allison        ... Read More

There is no way to answer your question based on the information you provided. For one thing, you don't discuss what kind of trust you're looking to put the money into or who created the trust. It may be that you should not put ANY money into the trust in question, ever (if, for example, someone else set up an irrevocable trust for your benefit with their money). It may be that you could have simply deposited the check straight into the trust in the first place, instead of first having to put it into a separate account (if, for example, it is a revocable trust that you created for your own benefit). And there is also the factor about how long you should wait to be sure the deposited check clears the bank, but that question is completely unrelated to whether or not the money should eventually be moved into a trust account.... Read More

There is no way to answer this question in this forum; there's way too much information that would need to be reviewed by the attorney. But the short answer is "Maybe" the disclosure would be sufficient to start the statute of limitations running. Unfortunately, for a better answer, you will need to consult an actual attorney in person.... Read More

Dear Sir,   Assuming this is an irrevocable trust (Settlor has died), Trustees are required to advise qualified beneficiaries of the trust and, upon request, to provide them copies w/i 60 days of the trustee(s) assuming trusteeship. Also, trustees are to provide annual accountings of trust transactions. A trustee's authority derives from the terms of the trust so it is possible for co-trustees to have independent authority but this is rare. Improper distribution of trust assets can serve as a basis for action for breach of trust.... Read More

If the trust is revocable, it can be revoked by the settlor.  If an attorney-in-fact has the authority under a power of attorney, then that agent can act for him. If the trust is irrevocable, it can be modified or revoked with the consent of the settlor and the beneficiaries.  This would require a court ruling. Call or email an attorney for a full consutlation.... Read More

I'm not certain what taxes you seek to avoid but if your trust is receiving income, I presume the investment bank will issue 1099s to the tax id associated with the account.  You'll have to deal with that on your tax return if you're not paying tax on that income but have a 1099 showing investment income.  You can't just shuffle the money to a different trust to avoid the income tax.  In addition, if you give any one person an amount in excess of $14,000, the excess amount is subject to federal gift tax unless you file a tax return and use some of your unified credit to cover the tax obligation. I'd suggest tha tyou consult with a tax advisor to get specific advice before doing anything. ... Read More

You can leave all of your assets to your daughter in your will.  If you and your wife both do wills, one will have a survival presumption meaning there will be a clause in one will that says "if my spouse and I die together, its going to be presumed that I survived".  The other will says "Its is to be presumed that I died first".  This way, one estate pours into the other, and then the second will is what governs the distribution.  If your daughter keeps all of her inheritence separate and does not co-minlge the money with marital assets, the inhreitance does not become part of equitable distribution and will not go to her husband. ... Read More

You need to ensure that the estate has been administered properly before you transfer the house to yourself, including paying all debts. If the house has no mortgage or other loan associated with it, you should then be able to prepare an Administrator's Deed to transfer the house to yourself, as the heir/beneficiary of the estate. Please note: you should NOT use a quit claim deed, a warranty deed, or a limited warranty deed, as none of these are appropriate for a transfer from an estate to a beneficiary. I very strongly recommend that you get either an experienced probate attorney or a real estate attorney who has a lot of probate-related experience to help you prepare and file the correct deed. If the house is subject to a mortgage, credit line, or other debt, you will need to have the administrator's deed note the existence of any security deeds that secure the loans. You will then also need to get all of those loans paid off in full. You may have to do a refinance of the existing debt if you are not already a borrower of the existing loan. That is a very tricky process and you may have to talk to more than one potential lender to find someone who will take the trouble to understand the situation and help you get the refinance done. It's not the same as a normal refinance. Best wishes to you.... Read More

There isn't enough information to answer this question.  Generally, trusts can be set up during your life time, or after you've passed away (set up in your will).  The reason you may want a trust now could be to protect assets for a child, someone who is disabled, or to take assets out of your name.  There are many reasons to set up a trust, but there are also reasons why a trust woul dnot be appropriate.  Consult with an attorney to find out the pros and cons and determine if a trust is right for you.  ... Read More