Category Archives: Estate Law

Am I entitled to my Deceased fathers estate step mother dies?

Q: My natural father divorced my mother when I was 10 years old. I have 2 siblings. He remarried a woman with two children and didn’t father any of his own with her. He gained custody of me but due to the physical abuse by my father and stepmother, I became a ward of the state until I was 16. My father had a sizable estate when he passed away, which I believe could be millions of dollars. This stepmother controls all assets and when my father was alive prevented any type of relationship or financial assistance to any of his children. When she passes away are we entitled to sue the estate? She lives in Florida now. (Finleyville, PA)

A: I assume your father did not leave anything to you when he passed? If so I am not sure why his wife would. However, you never know. There is no law that says you are entitled to any inheritance from either your father or your step mother. Both have the free will to exclude you from their estate or inheriting in any way from them. There is too little information here to provide an answer. When you learn she passes, you may want to talk with the attorney of her estate or trust to determine if by chance there you are an heir. If you are an heir of her estate, or their trust, you will be contacted. However, it wouldn’t hurt to be proactive and call the attorney handling her estate.

Can executor disconnect power without notice?

Q: I was living with my mother-in-law when she passed. Her “best friend” who is the executor in the will, has turned off the power without notice and closed her bank accounts. She has not informed any of the creditors of her passing or close friends. The house that she resided in for 32 years has a reverse mortgage. However, I still reside there with her seven cats who I love dearly. I pay the water, sewer, garbage and gas bills. The gas bill was three months behind when she passed and am currently trying to bring current. Please advise thank you for your time, any information is very much appreciated. (Squirrel Hill, PA)

A: If this “best friend” has not been appointed Executor by the court, she has no authority to act on your mother-in-law’s behalf. Merely being named Executor in the will does not give her such authority. She needs to be appointed by the court. I would call the utility companies and inform them what happened, and that no executor has been appointed and you are living in this house. If you get nowhere, call the PA Public Utilities Commission. It regulates utility companies. They may have a remedy and complaint filing procedure.

If my husband dies does ex-wife get his life insurance?

Q: My husband had a pretty nasty divorce and his ex-wife has made comments to their adult children that “she has plans to sue me in the case that he dies”. Does she have this right and can she sue if we have a good will in place? (Jeanette, PA)

A: Once divorced she no longer has rights to inherit from him under the intestacy (no will). In his new will he can leave his property to whomever he wishes with no obligation to her. As a precaution, he may want to check his insurance policies, annuities, 401Ks and other non-probate property to make sure he has removed her as a beneficiary, and replaced her with someone else. This is not a difficult process. It usually involves calling the financial company and having them mail you a change of beneficiary form. The forms are often on-line. I would make an appointment with a local attorney for a will and other estate planning documents.

If a person is power of attorney of their grandfather, can they give themselves gifts?

Q: Co-worker has power of attorney over his grandfather’s finances. Since then he has spent over $400,000 on buying himself vehicles, a boat, property, and other personal items on himself. The grandfather is being kept in nursing home. We are wondering if he can legally use the money this way, while his grandfather is still alive. (Bethel Park, PA)

A: It does not sound right as there is a strong duty for the agent to only act in the best interests of the principal. However, if the POA document states in writing the Agent can make gifts to himself, then it may be permissible. However, even if the agent is authorized to make gifts to himself, he may be liquidating funds that might be needed in the future to maintain adequate health care. This would be a violation of his fiduciary duties. Such spending may also jeopardize the uncle’ eligibility to receive Medicaid funding if he ever needs it. Therefore, even if gifts to himself are permitted, he would not be acting in the interests of the principal by diminishing the principal’s liquid assets. If you want to get involved, you may want to call Adult Protective Services to assess the situation.

Do we need to open an estate?

Q: Our dad passed Mar 7 and mom on March 13. An insurance policy needs to be paid to my sister and I. Do we need a Small Estate? No real estate involved. Bank accounts have been closed. They were both in an assisted living facility and most of their estate was spent on their care. The insurance company is insisting we need a Small Estate Affidavit. The insurance policy was issued by Dad’s employer in the amount of $2150. We do not want to probate the will for this small amount. What do we need to do and can we do it ourselves or do we need an attorney? Since our mother died so soon after our dad and we had no time to have the insurance paid to her, is this complicating the issue? Their will names my sister and I as co-executrices. (Pittsburgh, PA)

A: If there are living beneficiaries on the policy, the proceeds can be paid directly to the be beneficiaries without court or lawyer involvement. If the named beneficiaries are deceased, then the insurance company will only release the money to the estate. If the amount of the proceeds is under $11,000.00, section 3101 of the PA Probate, Estate and Fiduciary Code allows the insurance company to pay certain next of kin directly, without opening an estate. The insurance company may be from out of town and not know PA law. If you show them the statute, they may change their minds. If they still will not release the money, you can have an attorney file a small estates petition in Allegheny County as there are assets under 25k and no real estate. It may be a long shot, but some insurance companies have allowed me to obtain such proceeds with a document they have or which I craft if necessary, titled, Waiver of Probate and Release.

Does cash under the mattress get reported to probate court?

 

Q: Does cash under the mattress have to go to probate court when somebody dies? The death person gave this money to relatives to hold to prevent creditors of the estate from taking it when he dies. It is impossible for the creditor of the estate to know that this cash exists. A probate lawyer told the two adult children after examining all bank statements of the death person that it needs to be reported. The creditors think that this money was spend. The death person was living rent free in a house that legally belonged to relatives. (Uniontown, PA)

A: Yes, it must be reported. It is considered property of the “death person” in the form of cash and part of their estate. It must be reported on the estate Inventory and estate Inheritance Tax Return.

Am I entitled to my Dad’s last will and testament?

Q: I was the beneficiary of my Dad’s military death insurance when he recently passed away. I don’t have my Dad’s last will and testament. 2 other family members have the will though. Am I legally entitled to have a copy? If so, what is the procedure for me to acquire the will if they don’t want to give me a copy?

A: You deserve answers to your questions. If your father died with any property in his name, a house, car, bank accounts, annuities, etc., it may be necessary to open an estate to pass this property on to his heirs. If your family has filed the will, and thus opened an estate, you can obtain a copy from your local Register of Wills. If you are in Pittsburgh, the Register of Wills is in the City-County Building at 414 Grant Street in downtown Pittsburgh. If family members will not share a copy with you upon request, that is unfortunate. If so, don’t despair, you can seek the help of a lawyer. A lawyer can send them a letter and if still no response, have them summoned to court to produce the will by filing a Petition for Rule to Show Cause.

Is healthcare POA enough to move my mother in with me?

Q: There is a greedy trustee in charge of my mother’s finances who wants to sell all my mother’s properties. The trust states that I can live rent free at one specific property for as long as I wish as my mother wants me to retire in this home. My father built it and I grew up in it. My mother also wants to move in with me since she has dementia and can’t take care of herself. Also, the in-home care she has at her late husband’s house is costing a fortune and will deplete all her assets. The trustee fights me on getting rid of the expensive in-home care. Don’t I have a right to look out for my mother’s best interests and wishes as her daughter and POA of healthcare? The trustee acts like a dictator and expects us to do but why can’t we do what we know is the best thing for us as a family in spite of the trustee using intimidation to get her own way? (Pittsburgh, PA)

A: You need someone with an unbiased and objective point of view to look at the entire situation. I would make an appointment with an estate attorney experienced with trusts and guardianship law in to have the POA and the trust agreement reviewed. In addition, the attorney needs to be apprised of all the facts. If what you say is correct, it may be possible under the language of the trust agreement for your mother to fire the Trustee and have another one appointed. If your mother is not competent, this can be done by an Agent under a POA if the language of the POA permits an Agent to do so. However, as you describe this as a medical POA, it is doubtful that it contains such language. In that is the case, you may need to be appointed as her Guardian. Again, you need a legal consultation.

Question about the Executrix fee

Q: My sister was left as the executrix of my mother’s estate but my mother’s will divides everything evenly among 3 children. To my understanding she gets an additional 5% as being the executrix? Now with, that being said, my mother had a reverse mortgage on her home. The house sold for 184,990.00 settlement expenses were 12,114.44 then the reverse mortgage had to be paid back in the amount of 137,319.03 which left the amount of net proceeds to be 28,741.91 Now does the 5% come from how much the house sold for which is the 184,990.00 or does the 5%come from the net proceeds of 28,741.91? Now I’m only asking because she is giving us a hard time with this and I don’t trust her or the paperwork that she sent to me and my brother that she wants us to sign. I would appreciate some help if you can give it. Because there is a big difference in the amount of money that she is getting compared to what we are getting. (Mt. Lebanon, PA)

A: Generally, executor and attorney fees are calculated from the gross estate, not the net. As far as the percentage for a permissible fee for an executor, 5% is generally the figure people speak of but it is not exactly a correct calculation. The permissible fees for executors and attorneys is explicitly addressed in an old PA common law case, titled the Johnson Estate. When there is a dispute over either fee, this is the case that many courts in PA look to. Johnson uses a sliding scale depending on the type of asset and the monetary value. It is not a straight application 5% for all assets.

How to go about getting Letters of Appointment in PA?

Q: I am trying to receive unclaimed money from my mother’s and father’s estate. The unclaimed amounts are not yet with the state, but are being held by Wells Fargo. I am told I need Letters of Appointment for each. Where and how do I get them? (Pittsburgh, PA)

A:  Banks and financial institutions often tell people to “get letters”, or “get a short certificate.’ It sounds like a simple process as if every attorney has a stack of them on file that he can hand out for the asking. What these terms actually mean is that an estate needs to be opened in court. This is usually because the asset is titled in the decedent’s name and can only be passed on to another person from the estate of the decedent. Opening an estate involves preparing and filing a Petition for Probate, estate advertising, Notice to Heirs, Certification of Notice to Heirs, an estate Inventory, an inheritance tax return, possibly income tax preparation and closing of the estate. You should not do this on your own and will need an attorney. My advice is to consult with an attorney. There may be a way to get this money without opening an estate. Some companies accept Waiver of Estate Affidavits, especially if the company is based in another state with different or more liberal probate laws. Also, you may be able to accomplish obtaining this money by a Petition for Small Estate. It has some formality and must go through court but generally should involve less legal fees and time.