Trusts Legal Questions

Please accept my condolences on the loss of your father. If your father died without a Will, as you state, and if he did not have more than $10,000 in his account, Georgia law allows the bank to close the account and turn the money in it over to his next of kin. Here are the relevant parts of the law. Please note: as described at the end of the quoted statute, the persons trying to claim the account must provide an appropriate affidavit stating that they qualify under OCGA Section 7-1-239 to receive the property in the account. It may be helpful for you to have an attorney prepare that affidavit for you; that shouldn't be an expensive thing. The attorney can also review with you the entire situation and help you make sure that you know what to do to protect yourself and your brothers from potential liability to the IRS or anyone else to whom your father may have owed money. But if the facts are as you've described them, dealing with the estate properly may not be all that complicated. Best wishes to you. § 7-1-239. Payment of large deposits of deceased intestate depositors; deposit of sums held for deceased intestate residents; affidavit included with application for deposit. (a) Except as provided in subsection (b) of this Code section and in Article 8 of this chapter, whenever any person dies intestate having a deposit of not more than $10,000.00 in a financial institution, such financial institution shall be authorized to pay the proceeds of such deposit directly to the following persons: (2) If no surviving spouse, to the children pro rata; (c) Payments pursuant to subsections (a) and (b) of this Code section shall operate as a complete acquittal and discharge to the financial institution of liability from any suit, claim, or demand of whatever nature by any heir, distributee, creditor of the decedent, or any other person. Such payment is authorized to be made as provided in this Code section without the necessity of administration of the estate of the decedent or without the necessity of obtaining an order that no administration is necessary. (g) Application by any claimant or claimants entitled in this Code section to receive deposits at a financial institution shall include an affidavit by the claimant or claimants which states that they qualify as the proper relation to the decedent as specified in this Code section and that the claimant or claimants know of no other corresponding claimant or claimants to such deposit. The financial institution may rely on a properly executed affidavit in disbursing the funds according to this Code section. GA. Code 7-1-239 Payment of large deposits of deceased intestate depositors; deposit of sums held for deceased intestate residents; affidavit included with application for deposit (Georgia Code (2018 Edition))... Read More

I would suggest sending a certified letter to her at her mother's address, telling her to cease and desist from having mail sent to your mother's address, and telling her you will have any mail sent to your mother's address returned "addressee unknown." As trustee, you should change the locks and instruct your brother not to let her stay in the home. I think your gutl instinct is correct -- she may well attempt to claim a right to reside in the home after your mother passes. ... Read More

The presumption is that a joint account belongs to the surviving joint account holder. That presumption can be overcome if it can be shown that the other holder was just put on for convenience. That is usually shown by showing that all the funds in the account came from the older person. In your case, you can apparently show that you put your own funds in the account also, which gives you a stronger case. In any event, the trustee has no authority over the account, since it was not in the trust. If the trustee is also the executor, she may attempt to fight to gain control of the account. You have to decide whether you want to fight about this. If it had all been your dad's money, I would have encouraged you to voluntarily split the funds with other beneficiaries.... Read More

Trusts are not documented anywhere other than in the document itself. If she has a home, and it was deeded into the trust, that would be in the county recorder's files. If that hasn't been done, you should make sure it's done before her death. Otherwise, you will have to do at least a limited probate to take care of things.... Read More

Unfortunately, you need to get an estate litigation attorney to represent you, and fast. No, your half sister does not have the right to just go into your father's possessions and take things, and if your aunt who is the nominated Executor isn't taking appropriate actions to get the property back so that the estate can be administered properly then you may need to have a different Executor appointed. Keep in mind that you will be facing an uphill battle, but that you are the only one who can ensure that your interests are being protected. Best wishes to you and please accept my condolences on the loss of your father.... Read More

There is no central database of bank accounts that you can search to see if there's an account in your name or your grandfather's name.  have you asked family members who might know the answer to this question?  have you checked the PA bureau of unclaimed property?  You might also send a request for information to the bank(s) where he typically held accounts to see if there's any account with your name.  If the account did not have your name on it at all, none of these suggestions will result in you getting the money though.  When he died, was an estate administration proceeding opened for him?  The personal representative of the estate could assist with this investigation or might know the answer already.  ... Read More

I'm sorry for your loss.  One possible way to address this is to interview new attorneys and when you decide to hire the new attorney have that attorney reach out to the attorney you met with in September and ask for your file and a refund of the retainer.  The attorney from September will probably respond to a demand for such from your new attorney more promptly than a request from you.  Unfortunetaly I've had to do this several times this year and its amazing how many times the client will say "the attorney never responded to me" but when I send a request for the file it shows up on my doorstep by FedEx a couple days later.  Best of luck.... Read More

The trustee can ask you to give back money if unexpected expenses happen, such as the IRS auditing the decedent's taxes and demanding payment of back taxes, or someone coming out of nowhere claiming to be an omitted heir, requiring the trustee to go to court to fight them.  If the trustee asked you to give back some money to help with those expenses, you would be legally required to give back what was demanded. These situations don't happen that often, but the takeaway is don't spend your entire inheritance right away. Keep some in reserve.... Read More

That depends. If your parents left the money for Kathy in a trust, and named you and Mary as trustees, then you are co-trustees, unless you can talk Mary into resigning. I assume that money is in a special needs trust. If it is not, you need to meet with an attorney and make that happen. The court appointed you and your wife as conservators. If they made you conservator of her person, you can make her medical and housing decisions. Being conservator of her estate gives you control of her finances; but those finances do not include funds held in trust.  If she has public benefits, you have or need to get authority as her representative payee. The three roles are separate: trustee, representative payee, and conservator.... Read More

No, that would be a violation of your duties as power of attorney. A power of attorney can only act in the interests of the person they're acting for. Doing documents that give away his half of community property is not acting in his interests. You have two legally valid choices: (1) wait until after his death, and then (assuming the properties are held as joint tenants) have a trust drafted disposing of the property as you wish; or (2) file a petition for substituted judgment requesting to do a trust with the terms you state. Frankly, option #2 is a long shot. You would need strong written proof that your husband's wishes, when he could speak for himself, was for your children and not his siblings to inherit.... Read More

You have 60 days after you have received a copy of the trust to contest. They should have also given you an official 60-day notice to quit, which must be personally served. I don’t know what your mother wanted; if you’re not disabled, perhaps she wanted you to learn to support yourself.... Read More