They insurance settlement in question was supposed to go towards the burial of my mom, but my adopted sister is unwilling to sign the papers releasing her interest on the insurance policy, of which I am the executor.

I am sorry for your loss.

I have to give you a lawyer’s answer. It depends. You can always sue…the question is whether or not you will prevail.

I am not trying to be cute. Unfortunately many estate plans are incomplete or not done properly. Even though your mother wanted the proceeds of the insurance policy to go toward her funeral, it doesn’t mean that is what is going to happen.

If you mother had a life insurance contract with a funeral home, the proceeds would have to go towards her funeral and burial. However, if she had an insurance policy payable to your adopted sister, your adopted sister can do whatever she wants with her share of the money. She may have a moral obligation to pay the bill, but not a legal obligation. Her share belongs to her.

As executor you have the right to control all of the assets that are in probate. You do not control the proceeds of life insurance unless the beneficiary of the policy is the probate estate.

Check with your probate attorney to be certain.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

Many clients are shocked when they see the sheer volume of paper in a truly well-done estate plan. A trust by itself can be hundreds of pages, not to mention the other 6 to 16 documents you may or may not have—depending on your family situation. You may find that the “simple” estate plan you thought you were getting has turned into something of a size that would rival War and Peace!

It didn’t always used to be this way. The last will and testament of the great Jane Austen, for example, was only one paragraph long:

I Jane Austen of the Parish of Chawton do by this my last will I testament give and bequeath to my dearest sister Cassandra Elizabeth everything of which I may die possessed, or which may be hereafter due to me, subject to the payment of my Funeral expences, & to a Legacy of £50. to my Brother Henry, & £50 to Mde de Bigeon – which I request may be paid as soon as convenient. And I appoint my said dear sister the executrix of this my last will & testament.

Jane Austen

April 27 1817

Although this simplicity may have worked in 1817 England, it isn’t practical in the here and now. Things just aren’t that simple anymore. First of all, although Austen appoints her sister Cassandra as the executrix of her will, the will itself neglects to specify what powers are included in that appointment, leaving Cassandra effectively unable to carry out Austen’s wishes. Secondly, the will neglects to make alternative provisions—what if Cassandra had unexpectedly died before Jane? Also notably lacking (from our contemporary perspective) are any provisions for estate taxes. And finally, discerning readers may notice that the will does not include the signatures of any witnesses, something which is absolutely necessary in order to execute a valid will today (with the exception of holographic wills, which are often created in emergency situations, are entirely hand written, and do not require the signatures of witnesses.)

We all may long for simpler times, especially when it comes to something most people think will only benefit their heirs and not themselves; but many of the rules and regulations that are dismissively thought of as “hoops to jump through” are there for your best interest. They exist to protect your heirs and your legacy from fraud, misuse, greed and neglect. Far from being a chore, creating a thoughtful and legally valid will these days is actually an act of love… One might even say it’s a matter of sense and sensibility.

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Would I need a living trust or what forms would I need?

A sensible way to transfer assets to children, in the event of your death, is through a revocable living trust.

Transferring assets to children through a last will generally gives the children assets at age 18, Most of my clients believe that children cannot manage assets at that age.

Another common way to transfer assets is a trust inside a last will. The assets can be held for a longer time period. However, you have to probate the will in order to get to the trust. A probate generally means extra time and costs.

A revocable (changeable) living (established during your lifetime) trust works well because it is set up during your lifetime, you can change it over time and it allows you to give your assets to children when you want and exactly the way you want.

You will need an estate planning attorney to draft the trust for you. The attorney will need to prepare a “pour over” last will as well as the trust to make certain all of your assets are controlled by the trust.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

If a married woman dies and had a valid will; owned a house with her husband and 4 (independent) adult children, is it necessary to file for probate? Her Will stipulated that “…bequeath to my husband….. all of the rest, residue and remainder of my estate, whether real or personal………”. There is no Community Property Agreement.

Your question is not only about probate. The question is about whether or not the assets must pass through the probate process to go to her beneficiaries. If the assets were held jointly with her husband, the assets would pass to him by operation of law. No probate is needed. In addition, the community property agreement would not help answer your question.

I would recommend that you see an attorney in your area to see if a probate is necessary. Many times a probate is not needed. The attorney will need to see the will and a list of all of her assets.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

My father was diagnosed with Alzheimer’s in 2007. My mother passed 02/27/08, and my father just passed away in May 2010, My older brother declared himself Power of Attorney immediately after my mother’s death. According to the last will, it was amended in late 2008 after my dad’s Alzheimer’s had already begun to show signs of progression but it bears my father’s signature. Is his Last Will and Testament considered valid?

I am sorry for your loss.

The rules about competency vary from state to state. Even though someone has been diagnosed with a Alzheimer’s, the individual may still have times of clarity when the will can be signed. If the Last Will was prepared by an attorney and signed by witnesses, the attorney and witnesses would be able to discuss the mental ability of your father on the day of signing. Only the probate court can determine whether or not the Last Will is valid.

If you have doubts about the ability of your father to sign his Last Will, these doubts should be raised with the court when the will comes to probate. You will probably need an attorney to raise these issues. However, you haven’t said if the Last Will is being entered into probate.

Remember, just because a Last Will is written, doesn’t mean it is going to be entered into probate. Assets pass to beneficiaries in many different ways, not just through the probate court. Good luck.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

The POA made a verbal contract with me to provide care for the person in question. The person in question has dementia. His wife – not the POA now refuses to abide by the verbal contract and pay the bill. Who do I take to small claims court?

Additional information
The fee turned out to be about $200 since it was canceled the next day.

I don’t know the rule in PA. However, in Arizona there is a rule that says any verbal agreement about a sum of money, or a value (like providing care for someone,) that is worth more than $400, cannot be enforced in court. If the agreement is in writing, it is okay. From your question, it seems like you have a verbal agreement.

In Arizona this rule is called the Statute of Frauds. I would guess that there is a similar rule in PA. That means that the agreement cannot be enforced in a court of law if it is not written down.

Before you file in small claims court, see an attorney in your area to discuss the rules.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

Father has recently remarried. He has his house; she has hers. Both are paid for and cars are paid for. My dad has an IRA which my brother and I are beneficiaries. We begged for a pre-nup, but they didn’t get one. If my father should pass, does his new wife get any of his IRA?

You ask a very interesting question. The answer is…it depends. Federal law says that pensions must pass to the surviving spouse by operation of law. An IRA is not a pension, however, it acts like a pension in many respects.

I agree that your father should have considered doing a pre-nup, but he didn’t. For IRA or pension purposes, it may not have mattered, because only a spouse can give up rights to a pension…not a girl friend or fiance. Tell your father that if he really wants the IRA to go to you and your brother he must take some additional action. I would recommend that he and his new bride go down to the office of the financial advisor and fill out the form which says she gives up her rights to the IRA. The form must be from the financial advisor and it must be notarized. If not, the beneficiary designation may not work.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

Serving as someone’s executor or personal representative is a HUGE job, and not for the faint of heart. Although it is commonly considered an honor, there is a lot of work involved, and an executor must have a great capacity for organization, attention to detail, meeting deadlines, and more. You may be tempted to name your favorite sibling or eldest child just to keep from hurting any feelings, but your family and heirs will not be well served if you choose your executor based on emotion rather than ability.

Keeping this in mind, here are 4 things to consider when choosing your executor or personal representative:

1. Your executor should be trustworthy. Your executor will be privy to all of your financial secrets: reviewing estate assets, determining your liabilities and paying off creditors, settling outstanding debts, and making distributions to heirs. Chances are you don’t want all that information spread throughout the family or community.
2. Your executor should be organized. The person you choose will be in charge of a number of detailed tasks, both large and small. He or she will be making lists of assets, meeting court deadlines, making timely distributions for estate taxes, and more. Missing or being late for one of these many steps can draw out the entire process, costing your heirs both time and money.
3. Your executor should be financially savvy. One of the responsibilities of executor is to keep the estate viable (making sure the mortgage and fees continue to be paid) during the probate process. If you have investment accounts you’ll want to ensure they won’t languish and lose their value before they can be distributed to your heirs.
4. Your executor should have heart. Although probate is a can be a difficult and detailed process, it is at its core about the people you love. Your executor should have the ability to be caring and compassionate during this emotional time.

If you don’t know anybody you would trust with all of these responsibilities don’t lose faith, there are other options. You can choose a bank or financial institution as your executor, or you can ask your estate planning attorney to partner with the person you choose as executor—helping them with the difficult tasks and ensuring a smooth probate for all involved.

www.blogprofs.com

My sister is stubbornly withholding my inheritance out of spite and won’t answer emails or phone calls. Everybody in the family has received their inheritance except me. How do I start this process? I was told to find the necessary forms at the law library. Are there filing fees and will this be costly, because I don’t have any money.

I will make several assumptions with your question. I will assume that a probate has been opened in Maricopa County and your sister has been appointed as Personal Representative. I will also assume your sister used the services of an attorney to open the probate. I believe you want your inheritance and you don’t really care about becoming Personal Representative yourself. You had to sign papers to open the estate which would allow your sister to be appointed as sole Personal Representative.

My first recommendation is that you contact the attorney for the estate and let the attorney know you have not been paid your inheritance. Under Arizona law the probate cannot be closed until all of the beneficiaries have been paid and they have signed receipts and approval documents. The attorney will be able to speak with your sister about the hold-up. That may move things along. I would also ask the attorney to see why you have not been paid. There may be a reason for the delay due to the type of asset you are going to receive.

If that doesn’t work, or there is no attorney, the court will contact your sister 2 years after the probate has been opened to demand that she pay all the beneficiaries and close out the estate. In the meantime you could send a letter to your sister, with a copy to the court, spelling out your concerns. The letter should contain the estate name and number. If all that doesn’t work, or you don’t want to wait so long, you will have to contact an attorney. Check with the State Bar of Arizona to get a free lawyer referral. The number is 602-252-4804 or go online to azbar.org.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.

If I don’t probate my dad’s will is there a penalty in New York?

I do not practice in NY, however I will answer your question under general law. There are no penalties that I know of, if you do not probate a will. The real question is whether or not you will be able to inherit your father’s assets without going through probate. Probate is the process that transfers the assets of the decedent (your father) to the beneficiaries (your family) through the courts. Some assets need to go through probate, other assets do not. Assets that generally don’t go through probate are life insurance poilicies and IRA accounts. These assets pass to the beneficiaries through beneficiary designations, done prior to death. The other benefit of probate is that in certain circumstances, it may limit creditor liability.

This answer does not constitute legal advice and does not and is not intended to create an attorney-client relationship. The law may vary depending on the state in which you reside. It is intended only to give some direction in which to seek assistance.

Circular 230 Disclosure: Pursuant to recently-enacted U.S. Treasury Department Regulations, I am now required to advise you that, unless otherwise expressly indicated, any federal tax advice contained in this communication, including attachments and enclosures, is not intended or written to be used, and may not be used, for the purpose of (i) avoiding tax-related penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any tax-related matters addressed herein.