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.

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.

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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.

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.

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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.

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.

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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.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

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.

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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.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

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.

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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.

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.

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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.

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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.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

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.

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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.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

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.

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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.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

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.

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.

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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.

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.

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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.

Beliveau Law Group: Massachusetts | Florida | New Hampshire

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.

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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.

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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.

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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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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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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.

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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.

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Do I have any rights to a property that I am on the loan and a verbal agreement is made, but I am not on the deed?

ADDITIONAL INFORMATION:

I made an agreement with someone that we would both buy a property and have shared interest, but that the other person would be the only one on the deed. I have filed taxes based on that agreement. There was a personal dispute and now the person is claiming full ownership and denying any agreement we had even though it has been established in emails, texts, and through federal tax submissions. Do I have any rights to the property? If not, is it possible to claim fraud in the inducement?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Under the Statute of Frauds, agreements regarding real estate must be in writing and signed by the person who is being charged. Being on the deed is the proof to ownership. It gives notice to third parties that you own the property. Agreeing to co-sign a loan does not give you ownership. Taking a deduction on your taxes does not give you ownership. The e-mail may be enough to establish a claim of ownership if he admitted to the agreement. You will need to consult an attorney to determine if it is enough.
You did not say that you were paying on the loan, only taking deductions. Fraud includes intent and that you have been harmed in a tangible way. You will need to prove a monetary loss.

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 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

My father is drafting a will and making me a sole beneficiary, my question is sheltering these assets from my debt and leins

ADDITIONAL INFORMATION:

The inheritance is free and clear and positive in a financial sense. But I have legal medical, and other debts… my question is can they force me to liquidate by leins or the sort and what would be a adaquate
Means to shelter these assets from any interests so I can inherit what will be left to me as owner the inheritance is Real property 2, 3 parcels and vehicles and personal effects and any monies in accounts …
So how to shelter this from my debts…. and assume ownership …. this is my question

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Your father needs to inform his attorney of your financial situation. If you inherit these assets outright, the assets will be seized by your creditors. One option that may work is for your father to set up a discretionary trust for your benefit. This means that the Trustee cannot be forced to make distributions to you or your creditors. His attorney will be able to work through the options with him. Ultimately it is his choice.

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

Can my sister legally file for Probate without me waiving my PR rights to her ?

ADDITIONAL INFORMATION:

My sister has not provided me with my father’s will, death certificate, his bank statements ( which she still has open after death) and any other legal documents of interest. I am afraid to give up my PR rights at this point in time because I am not sure of her honesty and integrity concerning my father’s estate.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

The Personal Representative is named in the Will. You do not automatically have a right to be PR if the will has not named you. If it has been months since your father’s death, you should consult an attorney. The PR has a duty to file the will in a timely manner.
Until a PR is appointed, no one has authority over probate assets. It is normal for the bank accounts to still be open. Once a PR is appointed, those accounts will be transferred to estate accounts.

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

What if the deed was not signed before the death of the grantor of an irrevocable trust.

ADDITIONAL INFORMATION:

My uncle had an irrevocable trust drawn up for my grandmother ( his mother) so he would get the house. Does the deed need to be signed before the death of grantor? Next question if the granddaughter lived with and cared for grandmother for 44 years and the grantor/ grandmother dies and uncle wants to sell the home should the granddaughter get copies of court hearings and from the attorneys as the heirs did?.

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Yes, the deed would have needed to have been signed in order to transfer title to the trust. So, here it sits in probate. The ownership of the house will now go according to the direction of the Will, if she executed one, or, if not, under the laws of intestacy. Caring for a relative does not make you next of kin or an heir to the estate.

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

How can I obtain guardianship of individual?

ADDITIONAL INFORMATION:

My husband and I currently have permanent guardianship of our 17 year old grandson. The issue is when he turns 18 years old we have been informed this expires and we will have to go before the Courts again. He has been diagnosed with Autism, ADHD and Mood Disorder Unspecified. Also, history of PTSD and Oppositional Defiant Disorder. He is unable to complete life decisions, is easily persuaded by others into unfavorable decisions (some of the students who realize he is different take advantage of him by taking his treasured items/money and saying they will return them but never do/he responds by protecting the individual who tried to cause him harm.) He is unable to manage money (cannot decipher change and will walk away from the cashier if he presents her with $10.00 bill and the item was say $6.00. He feels he can buy anything no matter what the cost and no matter amount of explaining he doesn’t seem to understand). Our question is how do we pursue this? Is the current guardianship valid until the new order in place or because it states permanent guardianship do we even need to pursue another one?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

A guardianship for a minor ends when the minor turns 18. You will need to petition the court for an adult permanent guardianship. He will receive a notice about the petition. His doctor will need to certify that a guardianship/conservatorship is needed based on his mental abilities. Your grandson will have the right to object. You should begin this process well before he turns 18. I suggest you retain an attorney to help you.

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

Can I make out a check for funeral

ADDITIONAL INFORMATION:

I was P.O.A. for someone who just passed, her wish was to be cremated. Now that I have had the funeral home take care of this, I need to know if I can write a check out to the funeral home. It is my understanding my role as P.O.A. ceased as of her passing. what can I do. there is no executor of her estate

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

As power of attorney, your authority ceased upon her passing. If she owned a joint account, the joint owner can write out the check. If there are no joint owners, the cost of the funeral becomes a debt of the estate. Often times, family members pay for the funeral themselves and then are reimbursed once the executor of the estate is appointed.

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

Will my ira, 401k and/or annuity which have charitys as beneficiarys protect my 1.4 mill estate from estate tax?

ADDITIONAL INFORMATION:

If the answer is no,would it work to give these to charity be for my demise?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

Provided that your charitable deductions after your death bring your estate value below the Massachusetts 1 million dollar threshold, there will be no estate tax due in Massachusetts. A Massachusetts estate tax return will still be required to be filed as your taxable estate started at an amount above a million dollars.
If you would like to avoid your heirs filing an estate tax return, you would have to make withdrawals from these accounts, take the charitable deduction on your 1040. However, there are charitable deduction limitations applied to lifetime gifts, which is generally 50% of your adjusted gross income. You should work with a CPA or tax attorney to determine the best way to spend it down.
Also, please remember that end of life care is very expensive. An assisted living can run close to $10,000 a month. So while $1.4 million sounds like a lot, you can easily spend that down below the million tax threshold to avoid entering a nursing home.

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

Can my sibling be evicted from my step father’s home after he dies?

ADDITIONAL INFORMATION:

My sibling was living with my step dad for 4 months before his sudden death, now my step brother who was named as the executive of the will has told her she has to leave. What rights does she have?

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

If she is a beneficiary of the will, she may have a right to continue to live there if the will grants her an ownership interest in the house. In Massachusetts, the ownership interest would vest immediately upon the step-father’s death, assuming the estate is solvent. If she is not a beneficiary or if the will states that the property is to be sold, then she is a tenant at will. The Executor is within his rights to have her evicted from the 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.

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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

How does Power of Attorney work when the person it’s transferred to also transfers their own?

ADDITIONAL INFORMATION:

My grandmother is in her 80’s and still very active and mentally “with it”. After a recent hospitalization, though, she decided to transfer Power of Attorney to her only child, my father, just to be prudent in case of future situations.
Separately, during the past month, my father has been diagnosed with Stage IV cancer that is terminal. He has signed over his OWN Power of Attorney to his wife, my stepmother. Where does this leave my grandmother’s Power of Attorney? Still with my father? Or transferred to my stepmother along my father’s by default? Thank you. [Read more…]

Filed Under: Questions & Answers

If a parent was never put on a child’s birth certificate, can that adult child make medical decisions for that parent?

ADDITIONAL INFORMATION:

My mother’s father abandoned them after she was born. About 5 years ago, he showed back up in her life and she has since grown to have a relationship with him. With that being said, I do not believe he was ever listed on her birth certificate and she was given her mother’s last name when she was born. Now, he has suffered a brain injury and is incapacitated and unable to make decisions for himself. He does have other children, that up until recently, were letting my mother have an input in any decisions being made. They have now changed thier minds and are trying to exclude my mother. They are excluding her now because the other children are after his assets. House, car, etc. Let it be known that one son lives in Texas and the other lives here. My grandmother and my mom’s father have been living together the past few years and his other son lives in his old house. Does my mother have any legal say so? Or could she doe anything to get one?
[Read more…]

Filed Under: Questions & Answers

Can a person legally take communications/documents from another person’s home without their knowledge/permission?

ADDITIONAL INFORMATION:

My mother lives in a house that is in a trust and was formerly a trustee of that trust. She kept hard copies of all her communications with other trustees (before and after her time as trustee) and various copies of trust documents in her office. A beneficiary of the trust recently revealed that they went into her office and took all communications/documents and have been keeping them at their house.

I am another beneficiary and I told them they couldn’t just go into someone else’s house and take their private communications without their permission and/or the trustee’s permission. I also asked that they return all the documents (without retaining copies) to the current trustees immediately. They claim they did nothing wrong because the communications/documents relate to the trust, that they have a right to have all these communications/documents, and they did not agree to return the documents.

Are they legally allowed to do this? I am not so concerned with the contents of these communications/documents as I am with this beneficiary feeling they can do/take whatever they want.
[Read more…]

Filed Under: Questions & Answers

My father died in Florida and had no will but his home was deeded to him only and paid for before he married my stepmother.

ADDITIONAL INFORMATION:

Do I have any rights as a son and the stepmother says she has a life estate and she says the property will go to my father’s Aires when she passes but we have never seen any paperwork to say what the situation is..

ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:

The surviving spouse is granted a life estate in the property in order to protect her rights. A life estate means that she has the right to use and occupy the property during her lifetime. Should she move out, she is entitled to any income generated from the property. At the same time, she has the responsibility to pay for the expenses relating to the house. She must pay the taxes, insurance, maintenance and upkeep. If she wishes to sell the property in the future, she will be entitled to a percentage of the proceeds and the remainder men will split that balance. The percentage is determined according to her age. As she gets older, the value of her ownership interest declines.
At some point a homestead determination will need to be made and a new deed executed with your mother-in-law and you and your siblings, if any.

Filed Under: Questions & Answers

Will I be able to contest my only older sister’s will after her death–

ADDITIONAL INFORMATION:

My only sister had me listed on her deed of her home and due to a petty argument she had me removed from her deed and I feel she is being heavily influenced by her friend and she is putting her in her will–I am family verses a friend –is it possible to contest this and win this over?

ATTORNEY ANSWER BY MARGARET L. CROSS:

There are not enough facts to make an informed decision on whether you have a valid cause of action. While your sister may listen to her friend, it may or may not come to the level of undue influence. Is your sister vulnerable in some way? Has the friend isolated her? Did the friend force your sister to make her a substantial beneficiary of the estate? Is your sister elderly and easily confused. Have long were your sister and her friend close. These are all things that the court will consider. Just because you are her sister does not mean that you will win your argument. I have seen many, many estate plans where family members are not inheriting. Also, you can’t contest her will until after she dies and it will be expensive. The executor will have estate assets to defend a claim, where you will have to pay your attorney with your own money.
If you feel the friend is taking advantage of your sister, now, financially, you can report it to Elder Services, assuming she is elderly. Elder Services will hold an investigation.er 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

I want to be executor

ADDITIONAL INFORMATION:

Hello. My sister is the executor of my moms estate. I live with my mom, take care of my mom, take my mom to dr, make sure shes fed and clothed, etc. My mom is elderly. My sister does absolutely nothing for our mom– no visits, no contact, no doctor visits — nothing at all. But she is in charge of the money and bank account my mom received for my dads wrongful death lawsuit. My sister refuses to give us money or even tell us about the account. How can I become executor of this account in order to take care of our mom

[Read more…]

Filed Under: Questions & Answers

Can I get some sort of custody for my newborn half sister?

ADDITIONAL INFORMATION:

My parents seperated when i was 7, im now 20. My dad and his wife are having a baby girl in a few weeks but with mines & dads wifes history… she is not allowing me nor my brother to be apart of our sisters life. both my brother and i want to be apart and active in her life, is there any sort of custody we can get without making the situation worse?

ATTORNEY ANSWER BY MARGARET L. CROSS:

You have no rights to demand visitation or custody if the child’s parents are living and treat her well. Not allowing you in her life will not be considered abuse by the court system.

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 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

What do I do if the other parent claimed our child on their taxes?

ADDITIONAL INFORMATION:

According to the child support agreement I’m suppose to claim our child for even tax years while she can claim her on odd tax years. So for this year’s tax season(2016 tax season) the mom claimed our child on her taxes, before I can file my taxes. Now, I can’t file my taxes while claiming our child. What do I do to fix this to be able to claim our child for my taxes this year?

ATTORNEY ANSWER BY MARGARET L. CROSS:

Report your deductions on your own tax return. If she has already claimed the deduction, the IRS will disallow your claim and at that point, you can provide proof that you are the custodial parent. The IRS will then disallow your ex-wife’s deduction and allow yours.

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 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

If I was omitted from a will do I have the right to receive a copy of the will? And do I have to sign a paper i won’t contest?

ADDITIONAL INFORMATION:

Dad just passed away my aunt who is executor told me I was omitted from will. I don’t trust. Will I still be entitled to original copy or just get a paper saying I will not contest and if I don’t sign what happens?

ATTORNEY ANSWER BY MARGARET L. CROSS:

Once the personal representative submits the Will to the Probate Court for probate with the petition, all heirs at law are notified that the will has been submitted, whether they are to receive a bequest or not. The Will is on record at the Court. You can obtain a copy. You will have the opportunity to object to the Will at that time. You are not required to sign away your rights.
If you have been omitted and you feel that you want to object to the will, you should retain an attorney. There are filing requirements that must be met. Also, if your aunt delays in filing the Will, you should retain an attorney to force her to file the 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 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

I am a beneficiary of irrevocable trust which last asset is a home that my mother is allowed to live in but not life right.

ADDITIONAL INFORMATION:

She must maintain the home carry liability fire etc. Repair replace and provide all upkeep including taxes to remain there. She HAS NOT DONE THIS. I informed trustee and my sisters tried to get a loan for her unsuccessfully even the trustee tried and was denied. I want to stop the delapitation of my inheritance and have her removed. I am also on SSI and am homeless and have been denied access to the home to live. No one cares. Help.

ATTORNEY ANSWER BY MARGARET L. CROSS:

The Trustee has a fiduciary responsibility to make sure that the terms of the trust are followed. You may be able to file a petition to have the Trustee removed and seek that the terms of the trust be followed. You will need to work with an attorney to accomplish this.
However, without reviewing the trust, I can’t tell you what would happen after the petition is enforced. Is your mother then turned out into the streets? Does the trust spell out that the house is to be sold? What happens to the proceeds of the sale? Can the proceeds be reinvested into a home that your mother can afford? No matter what the outcome it will be difficult for both you and your mother.

Filed Under: Questions & Answers

Inquiring to see if my brother and I have a case against my sister.

ADDITIONAL INFORMATION:

30 years ago my sister was given $40,000 by our father. He told me and my brother about it and told us he wanted to leave us something for our future. He said my sister would invest it and not be touched until he dies. This past January he passed and now my sister doesn’t seem to want to, or can’t discuss it she says. What can we do?

ATTORNEY ANSWER BY MARGARET L. CROSS:

What your father tried to set up for you and your brother is called an oral trust. What you are running into is what a lot of other families experience when mom or dad trusts only one child to save move for all of the children. The trusted child not longer wishes to share. Is there anything besides the fact that dad told you about it to prove that it was his intention that the money be split. That is the only way that a judge would order your sister to distribute money to you and your brother. Do you even have proof that she received $40,000? Did dad file a gift tax return to report the gift? I assume not if he didn’t want to set up a written trust. It will be extremely hard to find bank records that far back if you don’t already have them. Plus, she could easily say that he gave it to her as a gift for herself. Assuming you do find proof, a lawsuit is extremely expensive and she has $40,000 with which to defend herself. You may want to hire an attorney investigate and promote a settlement without going so far as to file a lawsuit. It will still be expensive.

Filed Under: Questions & Answers

What happens if no one wants the responsibility of what the will entails?

ADDITIONAL INFORMATION:

I have a family member who passed away and has left in the will that all liquid assets remain apart of the estate and has asked that they be used to establish a foundation for children in another country to pay for education. It’s a noble idea, but also it sounds like it’s going to be a big undertaking. If the names executor has too much on their plate to do it and no other family members what the responsibility what happens?

ATTORNEY ANSWER BY MARGARET L. CROSS:

No one named as executor is required to take on the responsibility. If no one in the family wants to do so, then you can ask the court to appoint a public administrator. Please keep in mind the executor is doing a job and will be paid for his or her time whether it is a family member or the public administrator. Should the estate not have enough money to keep a foundation going, the executor could petition the court to make a straight charitable contribution. Your family member would need to have allocated a lot of money to the private foundation sustainable. If it doesn’t have a few hundred thousand dollars, the legal and accounting fees are going to eat it up after a few years.

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

Does a notarized document override an original Will

ADDITIONAL INFORMATION:

My father passed away leaving his children as the sole heirs in his will, but I have recently learned that a grandson in the family has greedily manipulated some notarized document claiming ownership of my fathers house and car. My father would have never knowingly signed any document giving him ownership of anything. Does a notarized document override the original Will?

ATTORNEY ANSWER BY MARGARET L. CROSS:

The will only governs the assets which go through probate. Re-titling an account so that it is joint will take the account out of probate. Adding a person to a deed will also avoid probate. This does not revoke the will. If your father was tricked into giving his assets away, a judge can issue an order to bring the assets back into the probate estate. You will have to prove that your father was incompetent or truly did not understand what he was signing. You need to consult with a probate attorney as soon as possible.

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

How do I legally report income for tax purposes on an investment that is held in the name of a friend?

ADDITIONAL INFORMATION:

If I give my friend money towards an investment in their name (equal to 50% of the total investment of one share of a restaurant), how can we each report this on our individual taxes?

ATTORNEY ANSWER BY MARGARET L. CROSS:

The income generated will be reported on the owner’s tax return. You will not own any shares. What you are doing is making a loan to a friend who in turn makes an investment. His only obligation to you will be to repay the loan at some point. If your agreement isn’t in writing, you friend can easily claim that you had made a gift to him. Your agreement should be set out in writing on how and when the money is to be paid back to you and at what interest rate. The agreement should be drafted by an attorney. If you are expecting a big return on your loan to your friend because this restaurant takes off, don’t. Invest in the restaurant under your own name if you want to secure the appreciation.

Filed Under: Questions & Answers

My father in law is in a 3 year court battle, he lives in a rv and recently had a stroke can we bring him to our state for care

ADDITIONAL INFORMATION:

His friend died a few years ago leaving everything to Dan (father in law) after the death unknown nephews came out looking for money and took Dan to court. His case has been continued for years now he was set to go to trial on Monday but had a systematic stroke he can’t use his left side and the Dr said he has a disk puting pressured on nerves in neck. He also is bipolar. He lives in a camper and has nothing. We want to bring him to nv for care we are his only family. How can we make it happen legally

ATTORNEY ANSWER BY MARGARET L. CROSS:

Is your father-in-law incompetent? Having physical side effects from a stroke does not mean that he has lost the ability to make decisions for himself. If he is still competent, you have no problems. He can move. He should execute a power of attorney and health care proxy immediately in case he suffers another stroke and does become incompetent. If he refuses to go and is incompetent, you will have to apply for the guardianship/conservatorship where he currently resides, move him, and then reapply in the new state. You will need attorneys in both states. His court case is a non-issue when it comes down to moving him.

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 [Read more…]

Filed Under: Questions & Answers

What do I do if my ex filed our daughter on his taxes, which violates the court order?

ADDITIONAL INFORMATION:

I have sole legal and primary physical custody of my daughter, her dad lives in another state. Our court order says I have the exclusive rights to file her as a dependent on my taxes, and file for her dividend every year. He knew about the court order and still claimed her on his taxes and filed for her PFD. How do I enforce the court order?

ATTORNEY ANSWER BY MARGARET L. CROSS:

You are no longer linked to your ex-husband’s tax filing because you are no longer signing off of its veracity. If he reported deductions incorrectly, he alone will suffer the repercussions. Report your deductions on your own tax return. If he has already claimed the deduction, the IRS will disallow your claim and at that point, you can provide proof that you are the custodial parent. The IRS will then disallow your ex-husband’s deduction and allow yours.

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 [Read more…]

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Nursing Home Fraud.

ADDITIONAL INFORMATION:

The Nursing Home that my Deceased Dad was in after having a sudden stroke is trying to get a judgement against me stating that I was his POA & I should not have accepted yrly checks from him for my two children & myself. I did not sign any papers stating that I would be responsible. Their claims are that even though my dad was in good health taking care of his own home he should have kept his money due to the 5 yr lookback .( Dad started giving my children & I monetary gifts 11 yrs prior to his stroke. Can the Nursing Home get a judgement against me ? If so do they get a monetary settlement or a lien on my home. I am quite concerned & do not fully understand how they can go after me.
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Will I have to pay income tax on my Mothers house that was in a revocable trust?

ADDITIONAL INFORMATION:

I am sole heir in my Mothers revocable trust. She died in 2016, I sold her house in 2016. Will I have taxes to pay?

ATTORNEY ANSWER BY MARGARET L. CROSS:

Upon your mother’s death, the home receives a step up in basis to fair market value. By placing and selling the home on the market soon after your mother’s death, the basis will be presumed to be the selling price. You should consult with a knowledgeable accountant or CPA to do the tax returns, especially if the house was sold from the trust. Upon your mother’s death, the trust became irrevocable and an EIN should have been assigned to the trust.

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Can we protect my mother’s assets from Medicaid by having a family members live in her house and act as caretaker?

ADDITIONAL INFORMATION:

I heard from a neighbor but can’t confirm that Medicaid’s five year “look back” for assets that can be applied to nursing home expenses is cut back to two years if a family member lives in the house and acts as caretaker. If so, do they have to be living there for two years before the reduced look back takes effect? Or does it take effect right away? Thanks!

ATTORNEY ANSWER BY MARGARET L. CROSS:

There are a few exceptions to the transfer penalties that are applied by Medicaid to applications. One such exception is a caretaker child exception. It extends down only to a child, no further. If that child resides in the home for 2 years prior to the applicant entering the nursing home AND provided care which delayed the entry of the applicant into the nursing home,then Medicaid will not apply the transfer penalty. In Massachusetts, the current regulations read only that the entry is delayed, not that the care had to be for two years. The house can only be deeded to the child. You need to consult with an elder law attorney to determine if you can qualify for the caretaker child exception or any other. Planning early is the key to Medicaid.

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 [Read more…]

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How do i sell mothers home,without power of attorney?

ADDITIONAL INFORMATION:

Mother is in nursing home, money is running out soon. I am her daughter, but I don’t have durable power of attorney.What do I need to do,legally to sell her home, so that I can continue to pay her nursing home bill/utilities/property taxes/and medications?

ATTORNEY ANSWER BY MARGARET L. CROSS:

Under Medicaid, her home is a non-countable assets. Instead of trying to sell the house, you should consult with an elder law attorney about applying for Medicaid. In Florida, Medicaid can’t collect against the home after your mother’s death.

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. [Read more…]

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Can you charge a fee if you are the administrator or executor in an informal probate?

ADDITIONAL INFORMATION:

What would that fee be?

ATTORNEY ANSWER BY MARGARET L. CROSS:

As Personal Representative, you may charge reasonable fees to the estate. You may charge differently for different tasks. For example, cleaning out the basement would be charged out at a lesser amount than the preparation of the tax return for the estate or the decedent. You will need to keep records on how long you spent on each task. Your fee will be reported to the beneficiaries of the estate in the Accounting. The beneficiaries may object if they feel you overcompensated yourself. Please remember that any fee you take are considered income and should be reported on your own income tax return.

Filed Under: Questions & Answers