Do I, as executrix have the right to charge rent to a sibling who resides in an estate property?

Additional  Infgormation:

My sister resides in an estate property. My mom passed about 2 1/2 years ago & I have repeatedly asked my sister to pay rent as she is living there for free. She has waffled back & forth repeatedly as to her desires to purchase the house. When I attempted to put it on the market, she removed the lockbox & denies me access to the property. Now, with pressure put upon her, she has offered a ridiculously low price for the property. Also, how would I get an appraiser into the property?

ATTORNEY ANSWER:

In order to answer your questions, we would first need to look at the provisions of your mother’s will. Did she instruct that the real estate be sold? If not, did she state that her estate should be divide equally among her beneficiaries? In Massachusetts, real estate ownership vests immediately upon death in the beneficiaries subject to divestiture. Therefore it is the beneficiaries’ right to use the property provided there is not a creditor lurking out there with a claim against the property.

If the will stated the estate was to be transferred to the children equally, you have the same rights as your sister to use the property and there is no right to restrict her use or charge rent. It also means that you are a co-owner of the property. You may force the sale of the home by filing a petition to partition the property.  Please keep in mind that this is all conjecture as I have not read your mother’s will. I would be happy to review your mother’s will and discuss your options with you. There is no charge for an initial conference.

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Is a lawyer liable to maintain your last will in safe storage at his office?

Additional Information:

What does the lawyer who stores your last will required to do upon your death?

ATTORNEY ANSWER:

An attorney can take no legal steps to probate your will unless directed by the executor who is named in the will. Upon your death, your executor may request your will from the attorney and proceed with any probate filings himself, retain your original attorney to open the probate, or retain his own attorney to open the probate.  Also, in Massachusetts, there is a procedure where a copy of a lost will can be submitted to the Probate Court in lieu of the original.

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What if a beneficiary refuses to communicate with me regarding disbursement? As trustee what can I do if she refuses the money?

Additional Information:

I am trustee of my fathers estate. I have attempted to communicate with one of the beneficiaries who was left a designated amount but she refuses to reply to my letters. I have been told by a family member that she does not want the money but as stated, I have received no replies to my letters.

ATTORNEY ANSWER:

A beneficiary is always free to refuse to accept benefits under a trust or a will. You should ask the beneficiary to execute what is called a disclaimer. Once a beneficiary disclaims her interest, she is treated as predeceasing the Donor of the trust and you are free to distribute the bequest to the next beneficiary in line. The beneficiary may be willing to sign a disclaimer as she does not wish to accept the bequest. The disclaimer would protect you as Trustee from a breach of a fiduciary duty by distributing the assets to a different beneficiary.
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How to prevent slip-and-fall claims

More than a million people suffer a slip-and-fall injury each year, and some 16,000 die as a result. Slip-and-fall injuries often lead to significant legal awards against property owners and landlords, so it’s wise to take precautions.

A recent study by the insurance company CNA makes the following recommendations for commercial property owners:

  • Putting carpet runners and mats at an entrance-way can reduce falls, but make sure mats are not more than a half-inch higher than the floor and inspect them regularly to make sure the ends are not curling up.
  • In warm weather, place an abrasive mat outside and an absorptive mat inside. In cold weather, put an absorptive mat just inside the door, followed by an abrasive mat. [Read more…]

My father’s home has been in my name for the past 10yrs. He’s 70 and wants me to put his house back into his name.

Additional Information:

I told him that I didn’t think it’s a good idea, but he refuses to listen. Any suggestions of what to tell my dad.

ATTORNEY ANSWER:

I suggest that you and your father consult with an elder law attorney in your area. (You can visit the website for the National Academy of Elder Law Attorneys’ website to obtain elder law attorneys in your area.)  By transferring the home to you ten years ago, the disqualification period for long term care planning has expired and thus the transfer will not be held against him in the event he enters a nursing home. He apparently has developed concerns over your outright ownership of the property. An elder law attorney may be able to broker a compromise between you. One option that may be possible is that you could create a trust for your father and transfer the home to the trust.

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Who handles our revocable trust we setup in 2004 after a tragic death in the family? 2 parties claim to handle it.

Additional Information:

Rev. Trust was setup by WESI Family of Comanies/American Family Legal Centers now called the Estate Services Group/Michael Fisher. He is being sued by the other party claiming to represent our trust: United Integrity Group. They transferred our trust to Puritan Life Insurance Services. Michael Fisher claims he still handles the trust. Originally when we opened the trust for aprox $900, we were told we would have lifetime free changes annually, and reviews. We are now told there is a $150 charge for changes. Our income is reduced, and I am currently working for my spouse and seeking employment. Should we takeover handling our trust ourselves? Do we need to file any legal papers to do so? I am so overwhelmed with this mess. Thank you!

ATTORNEY ANSWER:
A revocable trust is a trust that can be amended or revoked by the grantor of the trust at any time. Typically the grantor of the revocable trust also serves as the Trustee and a successor Trustee is named within the document. If you are unhappy with the service which is being provided to you, you have the option to amend the trust and name new trustees. No attorney or corporation has ownership over your trust.

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Can I break my lease if the apartment has bedbugs?

Additional  Information:

Moved into this apartment when I was pregnant, and found out that there are bedbugs in the apartment. Told the landlord and they exterminated my bedroom. After the extermination, still getting bitten, reported again and they exterminated again and still seeing bedbugs not just in the bedroom but in other parts of the apartment. We were told that they will continue to exterminate until they are gone, but how long will that take? We have a new born baby and very concern for his health in this situation. Do we have the right to break the lease or move into another unit that does not have bedbugs? Please help. Thank you!

ATTORNEY ANSWER:

Sorry to hear (especially since you have a newborn baby). My firm through our litigation attorney is currently handling a bed bug case for a client. Unfortunately, I keep hearing about more such cases. I recommend you hire a landlord tenant attorney to represent you. The attorney will prepare and send a letter to the landlord citing the legalease of your case. Based on the facts of your case, the attorney may recomend that you move out and claim constructive eviction. I hope the matter is resolved soon.

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How do we do a house transfer, not purchasing it just transfer?

Additional Information:

My father in law wants to transfer the house to my husband now due to health issues. My questions is do my husband and I have to get rid of our credit card debt before the transfer can take place. We aren’t purchasing the house it’s just being transferred now.

ATTORNEY ANSWER:

Your father-in-law should consult with an elder law attorney before making the contemplated property transfer. Also: You should make sure you can manage your credit card debt if your father-in-law is going to transfer his property to you. If you default on your credit card debt, your credit card company could bring suit against you to recover the debt. The property you received from your father-in-law could be attached if your credit card company obtained a judgment against you. [Read more…]

Is a deed under seal which was signed under duress enforceable?

Additional Information:

X hired Y to renovate his shop for a certain amount.  There is a contract between X and Y which specify which items will be renovated and how much will be paid. However halfway during the renovations, Y refused to finish the job unless X pays him an additional amount. At first X did not want to do so, however, he later agreed as he had no other choice. X and Y later signed a deed under seal.

Is the deed under seal still valid even though there was some duress?

Thank you so much for your reply.

ATTORNEY ANSWER:

Is there a contract between X and Y for the respective work (there should have been one)? If so, what does the contract say? This is a matter between two businesses. Consequently, both parties probably will be considered to be informed and savy with respect business dealings between them. I think X has a tough case. I don’t think Y’s actions rise to the level of duress. Y did not force X to sign the deed. X did not have to sign the deed. X could have come up with money (through a loan or otherwise) to pay Y.

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Consider making large gifts before the end of 2010

It’s not for everyone, but certain people can save a lot of taxes by making large gifts to family members or others before the end of 2010, and paying a gift tax on the transfer.

In general, you can give up to $13,000 to as many people as you like each year without having to pay gift tax. Also, you can give up to $1 million above that limit over the course of your lifetime, and defer the tax. You won’t have to pay gift tax now, but the amount of the gift will reduce the credit that can be taken against estate taxes when you die. [Read more…]

What if you want to give one child more than another?

There are many reasons you might want to leave more assets to one child than to another in your will. One child might have a greater need, or have been more loyal over the years, or have gone out of his or her way to be a caretaker. [Read more…]

Do your tax homework if you’re converting to a Roth IRA

A lot of people are converting their regular IRA or old 401(k) plan into a Roth IRA in 2010. That’s because Congress lifted a number of restrictions on these conversions this year. It also gave people who convert in 2010 a special one-time benefit: Rather than reporting the resulting income on their 2010 tax return, they can choose to report nothing for 2010, and then report half the income on their 2011 return and half on their 2012 return.

However, you might be better off recognizing all the income in 2010. To decide, you’ll need to do some tax homework. [Read more…]

Fall 2010 Newsletters

How to give assets to your grandchildren (but keep control)

Many older people would like to make significant gifts to their grandchildren, in order to help them and in order to reduce the size of their own estate for tax purposes. But they also worry that the grandchildren won’t be able to handle large sums of money.

The good news is that you can give each of your grandchildren up to $13,000 a year without incurring any gift tax. If you’re married, your spouse can also give each grandchild up to $13,000 a year.

The bad news is that young people are notoriously immature with money, and simply handing a young adult up to $26,000 a year won’t necessarily result in the wisest and most cautious financial decisions.

However, there are ways that you can “give” money to grandchildren for tax purposes, but retain control over it at the same time. [Read more…]

U.S. report questions continuing care retirement communities

A new U.S. government report warns that a number of “continuing care retirement communities” are facing financial problems, while regulation of these facilities is spotty. Continuing-care communities offer an entire continuum of care – from independent housing to assisted living to round-the-clock nursing services – in a single facility, with the goal of allowing residents to age in place. [Read more…]

‘Senior move managers’ can make moving easier

Moving can be stressful for anyone, but it’s particularly stressful for seniors. On top of hiring movers, packing, and setting up a new home, there is the emotional toll of leaving a house the senior may have lived in for decades. If a move seems overwhelming, a “senior move manager” may be able to help. [Read more…]

Does your estate plan include your pets?

Have you considered your pets when planning your estate? If not, you should, according to the Humane Society of the United States, the nation’s largest animal protection organization. “Since pets have shorter life spans, people don’t think to include them in their estate plans,” says Anne Culver, Director of Disaster Services for the Society. “But animals left homeless when an owner has failed to make adequate provisions for their care are distressingly common in animal shelters around the country.” [Read more…]

Not paying attention to property taxes can be costly

Even if you have paid off your mortgage, you still have to keep on top of property taxes. Most people who have a mortgage don’t pay their property taxes directly. Instead, a little of each mortgage payment is put into an escrow account, and the lender pays the taxes from the funds in the account. Thus, when many older people pay off a mortgage, and begin having to pay property taxes directly, they aren’t used to it, and they may miss their payments. [Read more…]

Don’t leave your children unequal shares by mistake

If you intend to leave your children equal shares of your estate, don’t forget to consider any money or property held jointly with a child. If you have recently added a child to a bank account, own property jointly with one of your children, or have set up a payable-on-death account with a child as the beneficiary, you might want to revise your will. [Read more…]

How parents can provide for a caregiver child

Taking care of an aging parent can be a full-time job. Adult children may have to give up paying jobs in order to provide care. Even if they don’t, they may still devote hundreds of hours of their time and make sacrifices in many other ways.

Often, aging parents want to find ways to compensate their caregiver children. Unfortunately, this is more complicated than it seems, because many techniques have tax or other consequences that aren’t obvious at first glance. For instance:

  • Gifts to children. You can compensate your children directly through gifts of money. However, you’ll need to be aware that gifts of more than $13,000 in a calendar year can make you subject to a large gift tax, and even smaller gifts can complicate financial or Medicaid planning. There are often ways around this, but you’ll want to talk with an attorney to determine the best method. [Read more…]

How does the new financial overhaul law affect you?

So what’s all the fuss over the new financial reform law? The headline-grabbing law raised quite a furor on Wall Street, but what does it mean for you and me? Here is how the law will affect ordinary folk.  The biggest change associated with the new law is the creation of a new federal agency, the Consumer Financial Protection Bureau. The mandate of the Bureau is to create and enforce regulations that will protect consumers of financial products much as the government now regulates safe practices for products such as vehicles and food. Areas of enforcement will include credit and debit cards, mortgages, and student loans. [Read more…]

Harvest some losses to lower your 2010 taxes

Consider the following strategy between now and the end of the year to restructure your investment portfolio in a tax-efficient manner.

Taxpayers are allowed to offset capital gains (such as from the sale of stocks) with capital losses. If capital losses exceed capital gains for the year, up to $3,000 of losses can be deducted from other income, such as wages. Any loss greater than that can be carried forward to future years. It’s important to remember that stocks you’ve owned for more than one year (called long-term) must be grouped together for purposes of calculating the capital gain or loss. The same is true for stocks held for one year or less (short-term).  [Read more…]

W-2 reporting of health costs optional for 2011

The IRS and the Treasury are giving employers additional time to adjust payroll systems and procedures to meet the requirement to include the cost of employer-sponsored health coverage on employees’ W-2 forms. This reporting requirement was mandated in the 2010 health care reform legislation and was scheduled to take effect with the issuance of W-2 forms for 2011.

Reporting the cost of coverage will be optional for Forms W-2 issued for 2011. Employers who fail to report the cost of health coverage for their employees will not be subject to penalties. The IRS notice included a reminder that the reporting requirement is for informational purposes only. The amount reported on an employee’s W-2 is not taxable income to the employee.

New restrictions on health accounts

This year a tax advantaged health account (such as a flexible spending account, health reimbursement account, health savings account, or medical savings account) can be used to purchase aspirin, flu medications, allergy pills, cold medicines, and other over-the-counter medications.

Effective January 1, 2011, funds from these accounts can no longer be used to purchase over-the-counter drugs unless the taxpayer has a prescription for them. Insulin is an exception and will still be eligible for tax-free reimbursement without a doctor’s prescription.