Questions & Answers

Trusts and asset protection

ADDITIONAL INFORMATION:

Trust language specifies that after main beneficiary dies that the two remainder beneficiaries can receive their share as a total distribution after they reach age 25 if they request it. So they have the option of keeping some or all of their share in the trust per their request. Does this language offer the beneficiaries asset protection from divorce or creditors? If not, can anything be done to provide asset protection? The trust is irrevocable since the grantor is deceased.

ANSWER BY MARGARET CROSS-BELIVEAU:

If a Trustee is required to pay over assets when a beneficiary requests, then there is no asset protection. Those assets are the beneficiary’s. The beneficiary should consult an estate planning attorney of his own. [Read more…]

Filed Under: Questions & Answers

Executor for will

ADDITIONAL INFORMATION:

I have been named as executor for my parent’s will. For many years I have been his full time caregiver. I have few assets and basically no credit history. He left a house and a summer cottage. I am thinking it would be much better for my brother who has an excellent credit history and assets to become executor. I doubt I could be bonded as executor. Any advice/thoughts greatly appreciated.

ANSWER BY MARGARET CROSS-BELIVEAU:

In Massachusetts and in several other states (but not all), the bond requirement can be waived in the will and the court will honor the request.  If the assets are located in a state which will not waive the bond, you have to option of declining to serve as the personal representative.  The person who is nominated after you in the will may then serve, or in no one is nominated, the next of kin (your brother) may petition the court to be appointed.
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Can workers compensation put a lien on law suit money ?

ADDITIONAL INFORMATION:

I’m on workers compensation and I’m suing the people responsible for it. Is workers compensation entitled to some of the money?

ANSWER BY MARGARET CROSS-BELIVEAU:

Yes, worker’s compensation is entitle to recover money it advanced to you.  Your attorney may be able to negotiate a lien reduction.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The litigation attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Stepmother did a lady bird deed to her son and cut us right out of the will . 2 weeks after fathers death

ADDITIONAL INFORMATION:

My dad passed away in 2014 . He had a will and stepmom had a will both basic mirror wills . My dad actually gave me copies of both and it named me executor in both of there wills . Before my dads death he called me up very upset he lived in Florida said I’m going to my bank and changing you to beneficiary . He said stepmom and stepson are aggravating him because he wants to move in and my dad couldn’t stand him . I was like dad relax I was busy driving told him I would call him back . The next day I get a call my dad fell but he’s OK. He should be home the next day I was told by them. Had I known he was in grave condition I would’ve flown there right away. They lied to me. I called the hospital and stepmom instructor that no information is to be given out. I explained I had a healthcare proxy. At that time I got a call saying he was unconscious and not waking up . I was very suspicious also by the time I got my flight he had passed they robbed me of being able to say goodbye. When I found out he passed I collapsed I need an ambulance and never made the trip there. Their behavior got more suspicious when she called to say she was going to ship my father’s ashes me .2 weeks later [Read more…]

Filed Under: Questions & Answers

How does a living trust work?

ADDITIONAL INFORMATION:

I spoke to an elder care attorney about my mother going into a nursing home. I told him I have POA, healthcare surrogate and Will with me as executor. I had concerns about my mother’s home. My sister has been caring for her in our mother’s home for 4 years. She has Alzheimer’s and it’s time for her to be in a nursing home. He advised me what paperwork to get together and that she needs a living trust where her monthly income goes into I’m assuming to pay her portion of the nursing home but why can’t it just be her bank account and why $2500 for him to set it up?

ANSWER BY MARGARET CROSS-BELIVEAU:

Florida is an income cap state for Medicaid. It sounds like your mother has too much income to qualify for Medicaid. In which case, a trust must be set up to capture the excess income. It will be turned over to the state after she passes away. The other part of her income will be paid to the nursing home as her patient pay amount.  Also, in Florida, Medicaid can’t place a lien on an applicant’s homestead.  The home will not be placed in the trust.
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Filed Under: Questions & Answers

Does my grandmother have any right to clear out my father’s house & keep what she wants?

ADDITIONAL INFORMATION:

My father recently passed away. He had a seizure, hit his head multiple times & was unconscious for 5 days before he passed away. My grandmother was notified when he was in the hospital the 1rst day. She didn’t call me or my brother’s until the 2nd day. By then the hospital gave her my father’s personal things ie keys, wallet etc. She went into his house & cleaned it out while he was dying. Now she’s saying he was her son so she could. She says she’s going to sell my dad’s things in a yard sale.

ANSWER BY MARGARET CROSS-BELIVEAU:

Who inherits you father’s assets depends on what his will says.  If he didn’t have a will, under the law of intestacy, (presuming he is single) his children inherit.  If your father owned substantial assets, a probate will have to be opened to transfer the ownership to his heirs.
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Filed Under: Questions & Answers

Can I get reimbursed? My ex-wife is paying the mortgage late intentionally?

ADDITIONAL INFORMATION:

I divorced my wife 3 years ago. The judge awarded her full custody and residency (not ownership) of my home, even though my name (only) is on the mortgage loan. My ex has paid the mortgage late over the past two years, hurting my credit and has now moved out of the home. It appears she will try to let the home go into foreclosure, while still trying to make it appear that she lives in the home. I am engaged and expecting a new child soon. Is it reasonable to be reimbursed for her intentional financial negligence? Is it possible that I would get rewarded via child support allocation? Please advise.

ANSWER BY MARGARET L. CROSS-BELIVEAU:

As you are the legal title owner and the mortgagee, it is legally your responsibility to make sure the mortgage was paid on time.  If you are on the loan it was your responsibility to make sure the loan was paid on time.  Child support is earmarked for the child.  The fact that you are engaged and expecting is immaterial.

You should consult a family law attorney to determine if she is in contempt of the divorce agreement.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The family law attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

 

Filed Under: Questions & Answers

What can I do if the executor of a will is refusing to follow the wishes in the will?

ADDITIONAL INFORMATION:

My mother left her estate to her 5 daughters equally. (per her will). The executor, one of the daughters, is not executing her wishes. She will not even speak about it. She did not tell us about the will. We found out by writing several lawyers in town. It has been over 2 months since our mother passed. She (the executor) has all ready taken property out of the house which was supposed to be divided equally. What can we do legally?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

When there is a will, the person in possession of the will is legally required to submit the will to the Probate Court.  You may petition the court for an order to produce the will.  You may object to her appointment as the Personal Representative (aka Executor) as she has refused to file the will and has taken things from the home.  There is an option to file suit against her for the value of the objects taken from the home.  However, the cost of the suit may be far more than the value of the assets.
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Filed Under: Questions & Answers

Selling a house in probate in Massachusetts

ADDITIONAL INFORMATION:

I understand there is a year for creditors to submit claims to the estate. Does this mean the heirs have to wait a full year to sell the house? Thank you!

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Yes, you may sell the house during probate.  In order to pass a clean title to the buyers, a formal probate proceeding is required.  Unless the will has specifically waived the requirement, the personal representative will need to petition for a license to sell from the probate court.   You will still need to wait until the creditor period is over before distributing the proceeds.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

How would i get q legal god mother for my two children if anything ever happens to me i am not relgous at all?

ADDITIONAL INFORMATION:

Just want to make sure if anything is to ever happen to me that my kids will be able to stay together and be taking great care of.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

A Godparent is a religious designation, not a legal one.  You wish to appoint a guardian.  In order to do so, you should execute a will.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate planning attorneys at the Beliveau Law Group provide legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

During divorce proceedings, can a person who was placed as an executor of real property use or sell that property?

ADDITIONAL INFORMATION:

Land was purchased during the marriage and put into a trust for the children. The wife was placed as the executor. They are now divorcing and the husband is concerned that the wife will sell the property, in part or in whole, to fund her part of the divorce.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Wife was named as a Trustee of a trust.  As a trustee, she has fiduciary responsibilities to follow the terms of the trust.  This trust may allow her to make distributions to herself.  It is impossible to answer your question without knowing the provisions of the trust.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate planning attorneys at the Beliveau Law Group provide legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

What should I do with a municipal bond that is part of an estate and cannot be redeemed?

ADDITIONAL INFORMATION:

I am the court appointed personal representative of the estate of my mother. This concerns a bond entitled, “Port Authority of the City of Saint Paul Industrial Development Revenue Bond Series 1988-F”

This bond, which matured in 1988, has a face value of $5,000, but is no longer redeemable. The projects the bond supported never generated enough income to redeem the bonds, due to the real estate ”bust” of the 1980’s. After five years of litigation, the city of St. Paul established the “876 Fund” and will continue to make tax-exempt interest payments on the bond until 2032, according to an article in the Minneapolis Star Tribune by Rochelle Olson, September 20, 2011. (On this particular bond, these payments have been anywhere from $100 to $300 per year for the last 5 years).

So, do I leave the Estate open for the next 14 years? Can I transfer the bond from the estate to myself, with the notorized permission of the two other beneficiaries of the estate, (My sisters, and we get along really, really good). Could I make this bond the payment for my work as a beneficary? Or is there some other, better option?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

The bond is an asset of the estate. Assets should be transfer to the beneficiaries in accordance to the terms of the Will. No one can answer what better options you have without reviewing the probate asset list. Any fiduciary fee you take is considered income and must be reported on your 1040.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Do I pay tax for child support?

ADDITIONAL INFORMATION:

I will pay few hundreds of dollars to my husband for the child support. Do I pay tax for it? Does my husband pay tax for it? Thanks!

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Child support is neither deductible by the payor nor is  it income to the recipient. Alimony is deductible by the payor and income to the recipient.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The tax attorneys at the Beliveau Law Group provide legal services for taxation. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

How can I take care of my unmarried brother’s financial obligations now that he is in a coma and has no Power of Attorney?

ADDITIONAL INFORMATION:

My brother is in a coma and will likely not recover to the point of being able to work or care for himself. I need to take care of his bills, loan accounts and bank account and start the process of obtaining disability benefits and Medicare for him. He has no Power of Attorney, spouse or children. Upon discharge from the hospital, he will be moved to a Long Term Acute Care Hospital. How can I obtain the legal authority to take care of his financial responsibilities and obtain the financial and medical assistance he needs?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

You will need to apply for a conservatorship in order to gain control over his bank accounts and any real estate.  To make medical decisions, you will also need to file for a guardianship.  You do not need these to begin the application process for Medicaid. (However, you will have to provide the state agency financial records to receive the approval.) You will have upfront costs, such as filing fees. However, once you are appointed as guardian and conservator, you can reimburse yourself for the expenses from your brother’s assets. You should consult with an attorney who is also well versed in elder law. [Read more…]

Filed Under: Questions & Answers

How do I get my dads name off of my mother’s estate?

ADDITIONAL INFORMATION:

My mom is gonna pass away soon and my dads name is still on the title, he hasn’t been around in 20 years. He didn’t have much to do with the payoff at all. I don’t know where he is to ask him to sign the paperwork for my mother

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

I am sorry for your loss. If your parents had divorced, the property division should have been addressed in the divorce decree.  Unfortunately, if your parents did not divorce, your father will become the sole owner of the property if he owns the property jointly with your mother. You can hire an heir search firm to track down your father. Perhaps he has already passed away, in which case filing a death certificate at the registry of deeds will clear your father’s name from the title.
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Can we take action to immediately change locks and take possession of property and all remaining content?

ADDITIONAL INFORMATION:

My sister and her husband moved into the family home place after our parents passed… About 3 months ago my sister passed, her husband eventually moved back into his original home , but left lots of his “junk” behind…saying at some point he may return and clean it up. he has the only keys to the property. what legal rights do we have as far as,Immediately having all locks changed and demanding he remove ALL his belongings,and we take total repossession of our property? [Read more…]

Filed Under: Questions & Answers

If I find out 25 years later I have a daughter?

ADDITIONAL INFORMATION:

I was just contacted by a old girlfriend that her 25years old daughter is mine. I will be willing to take a dna, but I have all kinds of worries, I’m married and have other children, if she is my daughter what it the law states I have to give to her. Can actually take a legal matter for depriving me with my parental rights.  what can they possible want after 25 years.?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

This could be spurred by the fact that your daughter just wants to know her father. If they are asking for back child support, they could force you to take a DNA test. Most likely you are past the statute of limitations, but a family law attorney should verify that. This is not a guardianship issue because the daughter is over 18. If she is your daughter, she is your heir. You may wish to consult with an estate planning attorney because you may want to specifically disinherit her.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate planning attorneys at the Beliveau Law Group provide legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

What constitutes elder abuse?

ADDITIONAL INFORMATION:

Our mother is 89 years old and relatively good health. My dad passed away 2/2016 and my older sister moved home due to losing her job. She now takes care of my mom although my mom is in assisted living. She has said to my mom “spend all your money” My dad left her with 3 million dollars that he worked extremely hard for. My mom is spending the money like crazy. Trips , dinners out all to the benefit of my sister. My brother is in charge of the financial matters along with my mom who is still competent. He sees the money being spent. As far as we know the will has not been changed and is distributed among the five surviving children and if any of us pass away our share goes to our [Read more…]

Filed Under: Questions & Answers

Can I evict a renter from my sisters house if I have a simple real estate contract with sister but mortgage is in her name?

ADDITIONAL INFORMATION:

My sister has agreed to sell her house to me and had a friend residing in the house with her daughter. I agreed to my sister she could stay as a renter for $600 a month. She has failed to make a complete payment and has only paid $425 in the past three months. In the beginning of October I had my sister sign, as did I, a Simple Real Estate Contract. The agreement is that I pay the house payment and that the mortgage will stay in her name. I have payed all mortgage payments on time. I have told the renter I am evicting them due to none payment and they are now pushing back that the house is still in my sisters name. Do I have a legal right to evict the renter or would it have to come from my sister?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

The renters are correct that you do not own the property. Your sister must sign over the ownership of the house by executing a deed and you must record the deed at the Registry of Deeds. Right now you have no ownership interest in this property.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The litigation attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

deferral, estate administration, probate, accounting, inventory, estate planning, estate recovery, estate tax, inheritance, MassHealth, probate, separation, waiver, disclaimer, qualified disclaimer, capital gains, foreclosure, 1041, 1040, income tax, will contest, real estate, deed, life estate, joint ownership, trust, living trust, revocable trust, Medicaid trust, irrevocable trust, durable power of attorney, guardianship, springing power of attorney, incompetency, Trustee removal, trustee succession, trustee appointment, elder abuse

Filed Under: Questions & Answers

I am heir to a portion of my grandpas estate and home with sister, brother, aunt, uncle. Can’t sell because brother has liens.

ADDITIONAL INFORMATION:

Grandpa had 3 kids and my dad passed away before grandpa and me , my sister and brother own my dad’s portion of home. My uncle lied to us about not being able sell the home due to my brother tax lien and we waited for 2 years and now he said the title search came back with my brother now has 30k lien on property and we cant close. We want to know if that would hold up a closing and can we use a quitclaim deed so we can close or take executor to probate court? What’s best advice for this situation?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Use a lawyer to close the sale of the house. The attorney can obtain a release of lien from the IRS so that the sale of the home can proceed. The attorney would collect your brother’s share of the proceeds and then pay the IRS. The money will never go to your brother. [Read more…]

Filed Under: Questions & Answers

I have two sisters and we all got 1/3 of money that comes in each year! My sister died so where will her share go?

ADDITIONAL INFORMATION:

It was not stipulated in will if any of us die before the 5 years are up! It also doesn’t say pay to next of kin in the will it only states the money is divided 1/3 each! What do we do because my brother in law is asking for the money!

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

You need to consult with a probate attorney to review the will and its testamentary trust.  A certain word may be meaningless to you as a lay person but have legal meaning. If the testamentary trust truly does not have succession instructions, you may need to request instructions from the court. You should not make any distributions until you have sought counsel.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

If a living trust and last will gets modified within 180 days of death, is it valid?

ADDITIONAL INFORMATION:

I was named as executor of a last will, and trustee of the living trust. My brother moved in next door to my Mom (the grantor) and now the trust has been restated with my brother as the executor of the last will and trustee of the living trust. Mom has fallen ill. How many days must pass before the newest last will/living trust is valid? Is there a minimum number of days that must pass between the time a last will/living trust changes to the time of death? Perhaps cold but objective question.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

The new versions are valid as soon as they are executed. Unless you can prove either your brother exerted undue influence over your mother causing her to execute different provisions where your inheritance is now diminished or your mother was incompetent at the time of the signing, the new will and restated trust will stand.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Can my siblings petition my mothers “irrevocable trust” to have me removed if I have done nothing wrong?

ADDITIONAL INFORMATION:

My brother and sister have indicated that they want access to my moms money in the bank and will get a lawyer to help them. I am the sole trustee and POA for all of her assets and medical care and have done nothing wrong. Can they have me removed by majority, as the other two beneficiaries?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

As Trustee, you are allowed to hire experts to help you in your duties. You should consult with an estate planning attorney who can review the trust to determine what prerequisites must be met in order for your siblings to remove you as Trustee. In most cases, the trust will pay for the legal fees incurred by the Trustee.
The attorney can also advise you about making distributions from the trust. As you stated in your question, your mother funded the trust but your siblings are beneficiaries of the trust. As beneficiaries, unless the trust states otherwise, your siblings do have rights to information and possibly distributions.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate planning attorneys at the Beliveau Law Group provide legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Should I include survivorship language in my deed, I am not married and I am the only one purchasing the property, ?

ADDITIONAL INFORMATION:

I have two children.  I am the only one purchasing the house and I am not married.  What type of deed would be best for me?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

You should always consult with an estate planning attorney as there are many options.  Which one you pick depends on your age, your financial situation, and the ages of your children and grandchildren.

If you add other people as joint owners on the deed, you will be making a gift to them.  This means that your ownership will be subject to their creditors as well as future divorces.  If one of your children predecease you, you have no control over who inherits your child’s ownership in your property.  If you want to sell the property during your life, all the owners must agree.  The proceeds of the sale will be divided among the owners.  Also, a joint owner has the right to sell his portion of the property.  If you did not buy the interest back, the joint owner has the right to force a sale of the property on the open market. [Read more…]

Filed Under: Questions & Answers

Can I file for compensation as a caregiver and daughter against my mothers will?

ADDITIONAL INFORMATION:

I was caregiver for my step father when he had terminal cancer for five years, also for my mother during and after that time. This was a twenty four- seven situation which included all aspects of care for them plus taking care of their home inside and out. I had to move in with them as they could not be left alone, putting my entire life on hold for a period of approximately ten years. Now I am sixty years old with no job, no home, and not enough money to get back on my feet. My siblings ,who did not participate in caring for our parents , have equal shares in the estate and cannot understand or don’t care that I will be homeless in a month when I have to be out of our parents house so they can sell it.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

I am sorry for your situation.  This is not an uncommon situation.  One child put his life on hold to care for sick parent and there is not a discussion within the family on how this will impact the caretaker’s finances.  Often the estate plan is not updated because the care alone is overwhelming to the parent.  You may have a claim against the estate if you can prove you had an agreement with your parents that you were to be compensated.  You should speak with a probate attorney.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Mom has stage 4 dementia. Can she make financial decisions and changes regarding the trust?

ADDITIONAL INFORMATION:

Mom and dad set up a trust in 1993. Dad was a farmer and passed in 2001. The trust states that my brother may farm the land at fair market value.  Mom is 87 and recently fell and broke her hip. She has been diagnosed with stage 4 dementia. Mom will probably need extra care (assisted living, nursing home type care). Checking moms finances, I realized my brother, who is a trustee, has been only paying about half of fair market value. Mom is the grantor and also a trustee on the trust. Can she still make decisions regarding the trust?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

An incompetent person cannot serve as a Trustee. The trust should have provisions in it spelling out Trustee succession. You should consult an estate planning attorney who is also familiar with elder law. The trust will need to be reviewed to see if your mother can qualify for benefits from such programs as Medicaid. [Read more…]

Filed Under: Questions & Answers

Does a living trust have precedence over a previously written will?

ADDITIONAL INFORMATION:

My mother in law recently passed away. She had been going downhill since she had surgery August of 2016. She was showing signs of dementia and it got worse as the days went on. Her previous doctor even has that in her medical records.
Before she had surgery she filled out a will.  She had four children. In the will she left all four children equal shares of real estate that she owned.
In March of 2017, 2 weeks after she was admitted into a nursing home, she signed a living trust transferring all of her real estate to my wife’s sister. We thought that once my mother in law passed, the property would be divided equally. It wasn’t! My sister in law gave one of her brothers a parcel and she kept the rest. [Read more…]

Filed Under: Questions & Answers

If an individual has been married to someone for 4 months, does the surviving spouse have Spousal Rights??

ADDITIONAL INFORMATION:

Is the surviving spouse entitled to exercise their right in the sale of property, if the deceased spouse was a joint heir to property before they died! Does the surviving spouse have the right to confirm or deny the sale of the property? If the couple actually lived on the property does the surviving spouse have to move?

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

This is not a straightforward scenario. You state that the decedent was a joint heir. This does not tell me how the property was owned when he died. Was it still part of someone else’s probate estate? If yes, then the PR of the other person’s estate can still sell the property.
Was the other person’s estate closed so that the two of you owned the property in you names when he died? And if so, was it joint ownership or tenant in-common ownership? With joint ownership, title passes to the survivor of the two by operation of law. If it is tenant in common, then a probate must be opened for the decedent to sell the property. Then we have to look to see when and if the decedent executed a will and/or a prenup. You should consult an attorney. [Read more…]

Filed Under: Questions & Answers

When someone is made executor should there not be some bookkeeping records provide to the others named in the will?

ADDITIONAL INFORMATION:

Brother is executor. All was to be divided equally, only the executor knows the full amount in the estate, there have been some shady purchases. Has caused a divide in the family, feel there should be some accountability for the executor to be sure they are following the requirements of the will. Bank statements list of expenses.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Personal representatives are required to file an inventory within 3 months of their appointment.   They are required to submit an accounting to the court and the beneficiaries before the executor is discharged and should also be filed annually.   Copies of the accounting are provided to the beneficiaries, who are requested to assent.   However, if you feel that the executor is not acting in the best interest of you as a beneficiary or you have not received copies of these documents, you should consult an attorney.  The attorney can file with the court to compel action from the personal representative.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration attorneys at the Beliveau Law Group provide legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

How do I register an international divorce?

ADDITIONAL INFORMATION:

My (non-US citizen husband) and I married both in Taiwan and in USA? We divorced amicably in Taiwan. I’d like to register the divorce the US . There are no settlement issues. We have two adult children and one child still under the age of 18. I have sole custody.
We executed the Taiwan divorce agreement in both English and Chinese. I’d also like to reclaim my maiden name.

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

There is a procedure for registering foreign judgments. You will need an exemplified copy of the judgments. You likely will need to consult with an experienced attorney on this.  Now that you are divorced it would be a good idea to meet with an estate planning attorney to execute a new will, health care proxy and power of attorney.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The family law attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

 

Filed Under: Questions & Answers

How do I enact a power of attorney?

ADDITIONAL INFORMATION:

My Mom has been giving her money to a scam artist. So far l think it’s about $150,000. She thinks she is going to marry this guy she’s never met. The police have been called by 2 different banks and they have explained that she could go to jail for money laundering but this is not stopping her. I am her poa but how do I get it enacted

ATTORNEY ANSWER BY MARGARET L. CROSS-BELIVEAU:

Generally, the agent’s power under the durable power of attorney begins as soon as the document is executed.  It is practically impossible for you to keep her from giving away her money if she has not been declared incompetent by her doctors.  Sometimes a parent’s behavior can only be curtailed by the child filing for a guardianship.  Once again, your mother will need to be declared incompetent in the proceeding.

I do not see this as a case of money laundering, but rather elder abuse.  You need to report the matter to Adult Protective Services.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The elder law attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Can you make a trust trump a will

ADDITIONAL INFORMATION:

My Grandfather died leaving money and assets to my father who was alive when my grandfather died, now my grnadmother still lived but went behind my fathers back and made a trust to kick him out of the will and had thier attorney never settle the will after my grandfather died and now doesnt want to give my father anything. they told us she made the trust to trump the will can they do that without contacting the parties in the will and go to court for the change?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Your grandfather’s Will only governs probate property. If all of his assets were owned jointly with your grandmother, then those assets are hers to do with as she sees fit. I am not sure what you mean by not settling the will. I am assuming that the probate was not opened. One would not have been needed if the assets were held jointly.
If a probate was opened, you can obtain a copy of the Will from the probate court to review for yourself. If your grandmother took assets without authority, your father will need to hire an attorney to intervene in the situation.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

What can we do about a discrepancy between a verbal agreement and the wording in a will?

ADDITIONAL INFORMATION:

My husband’s mother asked us to move to her property to take care of it after she remarried when her husband died. She would then give the house and five acres to us in her will. She gave money to her oldest son and said she would take an equal amount off what the youngest son owed on a loan. Their mom has passed away. The will states the house and acres go to my husband. However it does not say this is separate from the rest of the estate. His older brother has passed away. Now his other brother says the house goes back into the pot and that he never received anything. Everyone,including this brother was aware of the verbal agreement.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

You need to submit the Will for probate and follow the terms of the Will as it is written. You have no authority to change the terms. If the younger brother wishes to challenge the Will, he will need to do so through the probate process. If there is already contention, you should hire an attorney for the probate process.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

My mother died so I was appointed the PR over the estate when I did the deed of distribution I did it in all Four heirs name

ADDITIONAL INFORMATION:

My brother has been told he has cancer so it was to my understanding that the estate would be left to the other three to keep things straight ; then after his sickness 2 heirs had words leaving their share to the youngest of their gran children is this possible ?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

As personal representative, it is your responsibility to distribute the estate assets according to the terms of your mother’s heirs as named in her Will or according to the intestate statute if she didn’t have a Will. You have no authority to distribute property to anyone else other than the heirs. If you do, you will create a title problem. Your siblings can transfer their ownership of the property to whomever they wish after you deed the property to them.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Is my tax preparer liable for understating my income ?

ADDITIONAL INFORMATION:

My tax preparer did not include my wife’s Social Security income on my 2015 Federal and State taxes. Now I received a bill from the IRS, plus interest charges.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

You are still responsible for the tax whether or not he failed to input the data into the return. As a taxpayer, it is your responsibility to review the return before you sign and submit it to the IRS. You are obligated to pay the tax and the interest. Typically, if you use the same accountants or tax attorneys each, they will correct their mistake by paying the interest because they want to keep you as a client.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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Filed Under: Questions & Answers

Tax consequences of foreclosure and capital gains.

ADDITIONAL INFORMATION:

My mom passed away in September 2014. Her mortgage co filed foreclosure a month later. $74,000 was owed on the original debt, but unpaid taxes and fees made it closer to $104,000. Property sold for a profit in June 2016 and her estate received a check for $10,000.   Mortgage co reported original debt of $74,000 and sale price of $114,00, meaning it looks as though her estate earned $40,000 instead of the $10,000 received.
Do I, as her trustee, have to somehow pay taxes on that $40,000 even though the profit was only $10,000? Her estate was small and does not have that kind of money left to pay.   What can I do, if anything? Thanks.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Capital gains is applied to the difference between the sales price and the basis price of the property. Basis price is the fair market purchase price plus capital gains minus any depreciation. The basis of a property is “stepped-up” to fair market value on the date of the decedent’s death. The debt on the property is not considered when reporting the gain. Typically the sales price of the property is the de facto fair market value if the property is sold within a year from death. Conceivably, the gain could be zero if you placed the property on the market soon after the decedent’s death requesting a reasonable price and it did not sell because the market was so bad. A CPA or a tax attorney will be able to file the 1041 correctly to minimize the gain reported.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The tax attorneys at the Beliveau Law Group provides legal services for taxation. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

How do I decline my inheritance?

ADDITIONAL INFORMATION:

I do not want to accept any inheritance that my parents may leave me. Can I just write a letter and have it notarized or is there some type of legal form/letter that I need to fill out?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

To decline a gift or inheritance, you need to execute a disclaimer. In order for the disclaimer not to have any effect on you for estate or gift tax it must be a “qualified disclaimer”.  A Qualified Disclaimer must be done within nine months of date of the gift and you must not have exerted any control over the property. By doing the qualified disclaimer, you will have been deemed to have predeceased the gift and the gift goes to the next person in line to inherit under your parents’ estate plans. By only doing a disclaimer, the government will count the inheritance as going to you and then you made the gift to the next person in line.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Can my sister force my disabled sister out of the family home?

ADDITIONAL INFORMATION:

My sister is disabled and living in our mother’s home. My mother now resides in a memory ward of a senior living facility. My other sister wants to kick my disabled sister out, but she’s on disability and can’t afford housing. She claims that they need to sell the house in order to pay the $5000/mo facility cost. Please advise

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Assisted living bills need to be paid or your mother will be evicted. Unlike nursing homes, there is little public assistance to help keep the elder in assisted living. Your sister has no right to continue to live in her mother’s house just because she is disabled.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The elder law attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Procedure for transferring property, which is already designated to be gifted to someone in a will?

ADDITIONAL INFORMATION:

The person who has the will, is the Mother of 4 children. She is also diagnosed with mild dementia. She has decided to give one piece of her property to one dependent, but it was set to be given to another in her will. The 4 dependents are all in favor of this gift. However, there is a piece of property that the dependent who is going to be gifted this property is due to be given in the will. What we want to do is gift him the new property and sign his future property over to two of the other siblings. Is there any legal means to do so or can her will be changed?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

You need to consult with an elder law attorney. First, at some point in the near future your mother may need to enter a nursing home and apply for Medicaid. Gifting property within the five year look back will cause a disqualification period.
Second, gifting property instead of waiting for an inheritance means that the beneficiary takes the property at the basis that your mother had in the property. By waiting for the inheritance, the gain in the property is eliminated because the heir receives the property with a new basis of the fair market value on the date of your mother’s death.
Third, revising a will if a person has dementia is dangerous. You mother needs to be able to understand what document she is signing and what the ramifications are. As she already has a diagnosis, the new will can be challenged after her death. You will be put in the position of having to prove that your mother had mental capacity on the day she signed.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate planning attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

North Carolina trustee for Massachusetts trust

ADDITIONAL INFORMATION:

A non grantor complex Massachusetts trust has a North Carolina trustee and one beneficiary in Massachusetts. There is no Massachusetts sourced income to the trust such as real estate rental income, only income and gains is from stock and bond portfolio. Should the trustee file a Massachusetts or NC trust tax return along with the federal return? The trust language allows the trustee discretion to allocate income and capital gains back to the corpus if desired or to distribute. However, trustee has been distributing 3 percent per year. Does Massachusetts and NC law allow capital gains to be distributed to the beneficiary?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Massachusetts will look to see if the trust is a “resident trust”. There are two types. A testamentary trust (a trust created through the decedent will is one. The other is an inter vivos trust (a trust created during the grantor’s life). To trigger a resident trust status for an inter vivos trust the following conditions must exist: At least one of the trustees is a Mass resident AND (1) at least one of the grantors was a Mass inhabitant when the trust was created or (2) at least one of the grantors resided in Mass during any part of the year for which the income is computed or (3) at least one of the grantors died a Mass resident.
If your trustee is an individual, it does not seem from your description that a return will be needed. However, if a business which also has locations in Massachusetts is the trustee, Mass will tax the trust. There was a case decided last year against Bank of America on that issue.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The tax attorneys at the Beliveau Law Group provides legal services for taxation. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

What Happen if my Trustee could not perform the duties due to illness, and what happen if she die.

ADDITIONAL INFORMATION:

My husband past away on last end of year. he pointed 2 persons for successor trustees. one of them already past away 7 years ago. and the estate attorney filed pleadings to appoint other one to be my trustee. Now, I have a question, my trustee has serious health condition ( heart disease) and she could not perform any duties. (basically I have to do everything for her) so I would like to know if in this situation what should I do? in the future if she die what can I do ? there has no other trustee on my husbands will and I am only beneficiary.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

This is a common situation. Trustees routinely resign, die or become unable to perform the function as Trustee. The Trust will have provisions spelling out how a new Trustee can be appointed. Your attorney can prepare the paperwork for the transition of Trustee.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate planning attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Does a beneficiary of an IRA payable upon death amount satisfies an amount designated to be left from an estate in a will?

ADDITIONAL INFORMATION:

In Massachusetts, My dad left his IRA payable upon death to my brother and myself 50/50. His will states $50,000 for each of us. His IRA is not in the will. His cousin gets what’s left over from estate. Does the fact he left us money in his IRA satisfies the will’s listed amount or is that from the sale of his house? The financial advisor says the IRA is a contract and has nothing to do with the will. The cousin disagrees and states as executor that it does satisfies the will so he ends up keeping the house. Who is correct?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

The IRA is not subject to the probate estate. It passes outside of the control of the Will. The personal representative cannot ignore the terms of the will. Occasionally a Will is written where it references non-probate assets and sets out a formula based on what the beneficiaries receive out side of probate. For instance, he could have written, if my son receives $50,000 from my IRA, then he will receive nothing from my probate estate. If your father’s Will simply states, $50,000 to each of my children and the balance to my cousin, then you are to receive $50,000 each. You need to hire an attorney to represent you as beneficiaries if your cousin is refusing to follow the terms of the Will. If the personal representative deeds the house to himself in contradiction to the Will, he could be creating a title problem, which is very costly to fix.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

 

Filed Under: Questions & Answers

Am I still obligated to pay?

ADDITIONAL INFORMATION:

My mother has had 2 strokes within the past year. The 2nd stroke was severe enough that my mother needed to be placed in a long term/nursing facility. According to the admissions person at the nursing facility, my mother’s 100 days of Medicare ended 9/15/16. Mom was Medicaid eligible as of 7/1/16. The nursing facility sent a bill for the resident responsibility for the entire month of September. Since Medicare coverage was until 9/15/16 and Medicaid took over on 9/16/16, is my mother responsible for the entire resident payment amount for September? She has recently passed away. Am I still responsible for the funds?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

While Medicare covers 100 days, it does not cover the entire bill for the 100 days. After 20 days, the patient is responsible for a 20% co-pay. After 40 days, the patient is responsible for a 40% co-pay, and it continues that way every 20 days. It appears that there is a gap in the coverage for your mother. The start date requested for Medicaid should have been when the first co-pay started. A call to the facility is in order to straighten out exactly for what it is billing, and be sure to point out the Medicaid start date. If you used a company to file for Medicaid, be sure to contact the company as well.

Your mother’s estate is responsible for payment of the bills. You could be responsible if you signed her admission papers individually and not in the capacity of her health care agent or power of attorney.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The elder law attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

 

Filed Under: Questions & Answers

Is it necessary to have a will if you have beneficiaries on everything?

ADDITIONAL INFORMATION:

Beneficiaries are on everything.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Assets with beneficiary designations typically avoid probate. Occasionally things go awry if a beneficiary predeceases you and alternates are not named. The account could end up going to a person you don’t want, a minor, or the deceased person’s probate estate. Owning property jointly with another is risky because the joint owner has total access to the account. This means that the joint owner’s creditors can reach your assets.

A will is also helpful for other reasons as well. You wishes on your burial can be spelled out in a will. Also, you do own other assets that aren’t in bank accounts. The will spells out who will inherit the tangible personal property. The executor is responsible for filing your last tax return and has the assets to pay it. If you use designations, the people in possession will be responsible for pay the tax. Each one is wholly liable for the tax, so if one beneficiary does not pay his or her share because they have spent the money, the IRS does not have to go after the person who spent the money. The IRS will go after the person with the deepest pockets.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

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The estate planning attorneys at the Beliveau Law Group provides legal services for estate and asset protection planning. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

How should I disperse savings of a deceased sibling of whom I was the guardian

ADDITIONAL INFORMATION:

My brother passed away recently I was his Guardian he has money in the bank with my name as representative what should I do with the money he told me to split it up amongst the siblings and Dad can I do this legally

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Your representative payee and guardian status ended upon your brother’s death. The bank account will need to be probated. The assets will be distributed according to your brother’s will, if he had one, otherwise it will be governed by the state’s intestacy statute.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

If a house is forclosed by the bank during probate is the PR and others named in the Will be liable or responsible for any unpaid

ADDITIONAL INFORMATION:

I am the PR or executor of my mothers will. I entered into probate as there is a house to consider in the mix. I am no longer able to make payments and thought I would have time before forclosure but did not. Will I and my siblings be liable for any part of the unpaid mortgage? will it affect our credit?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Only the estate is responsible for mortgage payments. There will be no effect to the credit scores of the beneficiaries or the personal representative (or executor).
The Personal Representative is responsible for preventing waste of the assets. If there are no other assets to pay the mortgage and PR made reasonable efforts to prevent the home going into foreclosure, then the PR will not be held to have breached his fiduciary duty.
You may wish to consult with a real estate attorney to see if the foreclosure sale can be stopped so that you can sell the home yourself. Typically you will get a much higher value for the home if you sell it yourself and you avoid having to pay for the legal expenses of the bank.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

If my son did not leave his parents as beneficiary, could we get his roth ira and ira transferred to our name?

ADDITIONAL INFORMATION:

My son who is 35 years old passed away suddenly. He is unmarried and has no issues.He kept us , his parents as his beneficiary for his 401k but did not keep anyone as beneficiary for his ira and roth ira. could we get his iras transferred to our name as we are the beneficiaries as parents or do we have to get a lawyer? Does his iras go into an estate as there is no beneficiary? Is there any loophole to this so that it will not go to his estate, so that we can avoid estate taxes. Can we do this on our own or do we need to hire a lawyer for his iras transferred to our name. we have our on ira and 401 k from work. can we merge his into ours.Also the HOA of his condo is saying we cannot rent it for two years. My son was paying mortgage until he passed away .I WOULD like to keep his condo for sentimental reason but cannot afford to pay mortgage without renting it. BUT the HOA is saying we cannot rent it for two years. It is in philadelphia. Is there any loophole to this law since my son passed away suddenly.
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Filed Under: Questions & Answers

Can I file an Affidavit of Indigency to waive a probate of will fee?

ADDITIONAL INFORMATION:

I had to probate a will using an MPC-170 form (Voluntary Administration Statement) and there was $115.00 fee, which I just couldn’t afford to pay, not without depriving myself of the necessities food, clothing, shelter, or paying related bills. The clerk specifically said that I could not file an Affidavit of Indigency for probating a will and could not waive the fee. I had no choice, I had to pay the fee. Now I have to decide what I’m going to do without this month, which bill I’m not going to pay. Is this right or am I being screwed over here?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

There is no waiving of the probate fee for indigency. The good news is that under a Voluntary Administration, you should be appointed as personal representative within a couple of weeks. You are entitled to reimburse yourself for the expenses.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers

Can I file a lien on someone who is in the process of selling their home?

ADDITIONAL INFORMATION:

My siblings, prior to my mother’s death, got dementia-stricken mother to take everything out of parent’s bank account and give it to them for safe keeping. Father will not sue his children for $87,000….besides, four out of five children have already received and spent their equal portion. I, the youngest and mother’s caregiver who knew that every morning mother had clarity and asked that their money be returned, have not received my equal portion. It is my understanding that they spent $30,000 of mother’s money, on what, I don’t know. But the sibling in control is selling her home and I would like to put a lien on that home so that I can get my portion of parent’s money. Of course, that money really belongs to my father and I want him to get every cent of it. Sibling has bought another home and lives in the new home while the old home is vacant with a “For Sale” sign in front.
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Filed Under: Questions & Answers

Do I have the right to know my deceased mother’s assets and to see her will? What rights, if any do I have at all?

ADDITIONAL INFORMATION:

My mother passed away Feb. 14, 2017. My father left approx. $1.5M in their shared bank account. Before my father passed, I was separated from my husband, so he signed over the house and everything in it. I had no assets of my own, as my husband was very close to filing for bankruptcy. My sister took my mother with her to MO. and was supposed to live with her. However, my mother moved into a nursing home, which admittedly, was for the best. Believing my mother was going to live in my sister’s home, I told my sister she could take what she liked. She took 2 moving vans of furniture, jewelry, etc., including some things which belonged to me. Within a week of his passing, my sister became my mother’s Power of Attorney, as well as the joint owner of her bank account.

After her passing, I asked for a copy of my mother’s will. My sister refused a number of times. She also stated that there was very little of my mother’s assets I would be receiving (She will send me a box of things my mother wished me to have. and 1/4 of her IRA – I don’t know its worth). She also asked that I not research my mother’s will, so I don’t know if it has ever been legally filed. Please advise.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

The personal representative of a will has a fiduciary duty to file the will and open a probate. It appears that in this case probate was avoided because your sister became joint owner of the accounts.
You should consult with a Missouri attorney immediately. The actions of your sister can be construed as undue influence. She effective bypassed your mother’s wishes if your mother’s will left you an equal share. The longer you wait, the less likely you will recover your share of the inheritance.

Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

The probate litigation attorneys attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.

Filed Under: Questions & Answers
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