Trusts Legal Questions

I'm sorry for your loss.  Regarding the appraisal, it depends on what it will be used for.  If estate taxes are an issue or you plan to hold on to some valuable items and want to document their value at the time of your father's death for tax basis purposes, or if there is another heir who will question the value of the estate, then hiring a professional appraiser is worth the cost.  There should be estate appraisal businesses in the area who will provide appraisals and even handle the sale and disposal of items.  In other cases, simply doing some research online of similar items to your father's property should be suffiicent.  If you are truly the only heir, then there is no one to question the appraisal and an estimate for the probate court should be enough.   You can serve as administrator from out of state, unless there is some specific law in Ohio that you cannot.  You may need to hire local people to handle certain tasks, but much can be done by mail or phone.  You also could hire a local attorney to do the court filing for you and provide you with specific information about the probate process.   Yes, you can move into the house.  I would advise getting appointed as the administrator first.  If you are not the only heir, or if there are substantial creditors, I would advise writing a lease between the estate and yourself that spells out who pays what expenses.  Be sure to continue the insurance and inform them that your father has died.  ... Read More

As co-executors you'll both have to sign off on most transactions involving the Estate.  Neither of you has power that different than the other.  I don't think the vehicles can be sold without your prior consent -- and especially not for less than fair value.  That might expose both of you to claims by the beneficiaries for waste or negligence.  So you might tell the attorney that you'll hold onto them until the vehicles are ready for sale or distribution in kind to the beneficiaries.... Read More

As a beneificary?  Follow the rules set forth in the trust, if any, about making a demand upon the trustee to perform.  If that fails, you would need to file a petition with the orphans court setting forth the terms of the trust, your rights, and why you areentitled to recovery.  Trust litigation can be complicated and the rules of procedure in Orphan's Court difficult to understand.  You will have your best chance of success if you retain experienced counsel to assist you.  The trust might even be required to pay your attorney fees.... Read More

Her debts are her own now, and will become debts of her estate once she has passed.  So, only her estate assets must be used to pay her debts after she dies, and there is usually a small amount of assets that are allowed to be exempt from creditor's claims by the family.  (In Maine, it is $7,000 if there are no dependents or surviving spouse).   The law also prioritizes creditors:  funeral homes usually get paid first, lawyers and costs of probate, taxes and secured creditors all have priority over medical bills.  Retirement benefits that your mother receives now are her assets and are subject to her creditors.  If she named you and your sisters as beneficiaries, those benefits will be paid direclty to the three of you once she dies and should not be considered estate assets. ... Read More

No.  As long as a Will or a trust is valid at the time of signing in one state, it will be recognized in others.  I would write a Will in Maryland that confirms to Maryland law.  Trusts are a bit more complicated.  If the trust will be holding real estate, I would write it in the state where the state where the real estate is located.  Good luck.... Read More

The trust document itself may define heirs at law.  If it does not, you need to look to the definition in the trust statutes for the state where the trust was created.  Heirs usually mean the closest relatives including a surviving spouse and adopted children.  Please note that, if the trust states that the remaining assets of the trust go to heirs at law when the disabled son dies, this means those heirs living at that time.  It also might be defined as his heirs, not his mother's.  Again, look at the language of the trust document.  If you are unclear, you (as trustee) can petition the probate court to guidance as to how to administer the trust.  This cost would be paid by the trust. ... Read More

Hi - See if you can get a copy of the trust agreement, if you don't have it already, and look for any rights granted to beneficiaries.  There may be a process for you to remove your brother as trustee.  There probably is not a way for you to change the terms of the trust from distributions by discretion of the trustee, but it's worth looking.  You also have rights under state law to periodic accountings and court review and/or oversight of his administration of the trust, as well as to remove him if he is not administering the trust in accorance with its terms.   ... Read More

Regarding the trust, it sounds like you need to use the power of the court to get the trustee to meet her obligations.  If you have not sent a written request to her for information, I recommend sending that first.  Mail it registered mail so you have proof she received it.  If you are a beneficiary of the trust, you have the right to receive accountings.  You even could give her a deadine and tell her that you will file a complaint if she does not respond. In general, the duties of a trustee and how disputes regarding the trust are determined first by the language of the trust itself, so I recommending reading it carefully or obtaining a copy if you don't have one already. The probate court has jurisdiction over trusts so you can file suit there to enforce the trust terms or against the trustee for malfeasance or failure to perform some duty.  I would advise hiring an attorney to do this. If you have not done so already, I recommend revoking your power of attorney.  Provide her with a copy of this revocation.     ... Read More

Good question.  You can name the trust in your Wills (Smith Family Trust, for example) and not fund it, and then refer to that name, adding the detail that is it a testamentary trust (trust created by a Will).  For investment assets, life insurance, etc. you can either name the trust as a contingent beneficiary or name your estate and it will be directed to the trust.  Naming the trust directly avoids the assets having to go through the Will and hence the probate process. Naming a trust as a beneficiary of retirement funds is a bit more complicated.  Because a trust is not a person, there is no lifetime over which benefits will be paid.  As a result, the benefits are paid to the trust in full over five years.  This is true for naming estates as beneficiaries of retirement funds as well.  There are two better options:  have an attorney write the trust so that it is a "see-through trust" that conforms with certain IRS regulations that allow it to collect and pay retirement benefits over a trust beneficiary's lifetime, or name your daughter as the contingent beneficiary for retirement funds.  Both options allow your daughter's lifetime to be used to maximize the tax benefits of the retirement fund, although only paying them to a trust can prevent your daughter from withdrawing retirement funds early (if you include such restrictions in the trust language.)   ... Read More

It depends on the complexity of the Will and trust, but a simple Will is probably cheaper than a trust for you.  With a Will, there are additional costs of probate once you die, but those are paid by your estate whereas establishing a trust would be paid by you now.   You can add up the value of your house and IRAs and decide how to divide them.  Grandchildren are a good choice for IRAs because their  young age means that the benefits have the ability to grow tax-free for longer.  You can designate IRA beneficiaries with the entity managing the IRA for you, not in your Will so that is no cost.  A will is needed to give your house to your daughter and/or grandchildren, and, if that is all you want to do, you may be able to use an online form or hire an attorney for a small fee.  Putting your house in trust would require an attorney to write the terms of the trust and you to write and record a deed transferring your house into the trust.  A trust owning a house can complicate property tax rebate programs, your mortgage or home equity loan, and possibily insurance.  It avoids probate costs later but usually costs more upfront.  A local attorney would be able to quote your the costs for all. ... Read More

Trusts are useful to avoid the expense and time of probate, to keep ownership and inheritance information private (probate documents are public), and to provide for more control over how assets are managed and distributed, both during your life and after your deaths.  Although trusts have been used in the past for estate tax avoidance, Florida does not have an estate tax and the federal estate tax only applies to estates worth more than 5.45 million.  Trusts cost some money to execute and administer, so you should balance your interest in saving your beneficiaries time and some effort after you die with your spending some money and effort now.  If you want to control your beneficiaries' access to their inheritances after your death (for example, distributing income only until beneficiaries reach a certain age or for life, with the principal going to second generation or even continuing), trusts also can be useful. If you do not end up forming a trust, I would recommend a Will.  Florida also has a somewhat unique homestead law that limits how your residence can be distributed upon your death.  This depends on how your house is owned and who survives you, and is worth your learning more about before you draft either a Will or a trust. ... Read More

As personal representative, you have the ability to transfer probate property of the person who died.  Probate property is only that property that was owned solely by that person (no joint owner or not owned by a trust) and did not have a beneficiary or pay-on-death designation to another person.  If the real estate subject to the mortgage was owned solely by the person who died, it is probate property.  If the person left no Will, the law of intestacy applies.  Assets go to a surviving spouse, children, parents, siblings, nieces and nephews, etc. depending on the closest relatives that survived that person.  Nolo.com has a good summary of Arizona intestacy law.  It then is your responsibility to execute a deed for the real estate to those who are entitled to it under the law of intestacy.  This person or persons takes the real estate subject to the mortgage.  The mortgage agreement may require that the loan be paid in full upon tranfer of ownership, but, in most cases, there is an exception for property inherited by relative if the payments are kept up.  You have the authority to request the mortgage document as the personal representative, and to negotiate with the bank on behalf of the estate.  If the estate has any funds, it should keep current with the mortgage payments as well as other expenses for the real estate, such as insurance.  I don't know all of the details of this situation, but it sounds like you need to determine who is entitled to this property and then arrange for a professional to draft a deed for it.  Also keep in mind that there is a creditor period for estate when any creditors can come forward to present claims, so you may not want to transfer this real estate if the creditor period has not ended.  In most states, the creditor period is four months starting when the personal representative is appointed.   ... Read More

This sounds like a difficult situation.  I am sorry for your loss. If your dad owned any assets just in his name (in other words, not owned jointly with his wife, or in a trust) and that do not have named beneficiaries (such as retirement funds or pay-on-death designated accounts), then his wife will need to be appointed personal representative of his estate by the probate court in order to control those assets.  As your father's heir, you have the right to receive notice of probate proceedings.  You can contest her appointment, seek to be appointed instead of her, or ask the court to oversee her actions.  If she doesn't provide you with information or takes any actions contrary to your father's Will or the law, you can seek to have her removed or have the court order her to act.  As far as the truck, if your dad wrote in his Will that you get the truck, then she will be obligated to transfer ownership to you or subject to a court order to do so if she fails to do it.  But if it is just something that your dad said to you, she is under no legal obligation to transfer ownership of the truck to you.  Last wishes are not legal obligations and, in that case, you woudl have to rely on your stepmom's willingess to honor them, which is more likely to happen if you are super nice to her than if you bring a court challenge.   If your dad did not leave a Will, his wife is entitled to all of his community property and a third of the assets in just his name.  You and your siblings (if any) are entitled to the remaining two-thirds - again, of assets just in his name that are not considered community assets - pursuant to California's law of intestacy.  You can find more information at nolo.com. Good luck.   ... Read More

I'm sorry to hear of your loss.  It sounds like your son's daughter was appointed the executor of his estate, so she is the one who would need to represent his estate in any law suit.  If you want to represent his estate instead, you would need to petition the court that appointed his daughter to remove her and appoint you as executor.  If she does not file the wrongful death for the estate, that may be sufficient grounds for the court to remove her.  Please note that there is a two year time limit for wrongful death actions so any law suite needs to be filed by Sept 7, 2018.  Also, it is not unusual that she was appointed to represent the estate without a hearing.  If she was named in his Will as executor she had priority to be appointed.  Otherwise all heirs and beneficiaries have equal priority.  It depends on the specifics of your situation with your son, but parents can receive part of a wrongful death award.  This is determined by the court as part of the lawsuit.   ... Read More

It is difficult to give a solid answer without reading the actual language of the trust and Will, but I'll give you some general information.  Part of the answer depends on whether your dad or the trust owns the assets.  Assets owned by your father (without named beneficiaries or co-owners) are to be distributed in accordance with his Will by the personal representative appointed by the probate court, while assets owned by the trust are distributed by the trustee(s) in accordance with the terms of the trust.  If the trust was executed in Maryland, then it will be interpeted under Maryland law.  If your dad was a Virginia resident when he died, then his estate will be probated in Virginia (f probate is necessary.)  Again, the trust and the Will are two separate things.  If the trust states that after both parents are dead, all assets are divided among the children, then any assets owned by the trust should be divided between the children by the trustee(s) once all trust expenses are paid, which includes taxes and costs of the final accounting.  Some people form trusts but fail to transfer some of their assets to them, so the fact that your father had this trust does not necessarily mean that the trust owns all of his assets.  The trust also may have provisions stating who is trustee or co-trustees once your father dies.  Good luck.  ... Read More