Category Archives: Estate Law

Can my lawyer keep my will from me?

Q: Does a lawyer have to provide me with a copy of my will that was drawn up by myself and the lawyer? Do I have a right to a copy of my will? I asked my lawyer for copy of my will so I could review it. He will review with me in office but refuses to give me copy of my will. Can he refuse to give?

A: Sounds weird. My understanding is that your will is your property, as you paid the attorney to draft it. If he or she is holding it for a good reason, for example if you are mentally unstable and prone to make sudden impulsive decisions that you later regret, he or she may have a good reason. However, like I said, it is your property. If nothing like that is going on here, and he or she won’t give it to you after you request, just go do another will with a new lawyer.  The new will revoke the old will.

 

Can an item once a gift from a deceased person be re-gifted to the deceased’s family?

Q: I have an item that was received many years ago as a gift from someone and we want to re-gift it to the deceased’s family, but by-pass the estate. The gift is currently in the hands of a New York resident, but would be gifted to a California resident. Or it could be gifted to a UK resident. (Chalfont, PA)

A: Once the deceased gave it to you, when he or she was alive, it was yours to keep. You can give it to whomever you want, even after he or she died. Unless it was “on lone” of sorts, and ownership was maintained by him and now by his estate. If I understand what you are saying, and this was a gift to you while the person who is now dead was alive, you can give to anyone with the exception of his estate. If that happened then it would be property acquired by the estate and likely be estate income.

Both witnesses on mother’s will are dead. Can I register it?

Q: Both the witnesses to my mother’s will have died. How do I prove the unregistered will is legal?

A: Wills are not filed until the person dies. The two deceased witnesses are not a problem. The law allows you to submit affidavits that the witnesses to the will are unavailable and that they recognize the signature at the end of the will to in fact be that of the testator. You can obtain these affidavits yourself and drive the probate clerk crazy and open the estate or hire a lawyer to do s

Do I have to pay mom’s money back to a nursing home?

Q:  My mom paid off my car and then went into the nursing home. The deal was, a few years later would I have to pay that amount to the nursing home. My mom is getting very forgetful if she gave me money to pay off some bills I have. If I have to have in home help or have her go to a nursing home. Would that penalize her, or would I have to come up with that money? I am on her checking account and I have durable power of attorney. Thank you.

A: I am a little confused and don’t have all the facts that I need. You really need to ask an elder law attorney who can look at the entire situation. Generally, transfers of a person’s money to others, without consideration (no payment in exchange) within 5 years of Medicaid eligibility, can cause that person to be ineligible for Medicaid in the amount of the transfers. It is not the nursing home that is the problem, it is if and when your mother needs to apply for Medicaid. It sounds like you and your mother could really benefit from legal advice, but the attorney has to know the entire situation.

Brother forged deceased mom’s check

Q: Can I press forgery charges on behalf of my late mother? My mother died recently and we have discovered that a sibling signed my mother’s name to several checks that were drawn on my mother’s credit card. I went to the bank to which these checks were written (to pay a mortgage) and the bank told me that only my mother could press charges.

A: Yes, you would have to open an estate on behalf of your mother. The estate could then sue or prosecute the sibling as the legal party of interest. If there are sufficient assets there are other options to prosecuting. The estate attorney can advise you.

 

 

Should I report injury settlement to Medicaid?

Q: Should I refrain from filling out my Medicaid recertification form? First let me say that Medicaid does not have any liens on my settlement in any way. I am due to have the recertification form filled out and returned in less than two weeks. However I recently received a personal injury settlement for less than $20,000 but more than $10,000 which I am not sure by may put me over the PA asset or resource threshold. One legal advisor informed me that I could let it lapse and try to find a Medicare Advantage program to replace Medicaid. I never have liked to inform anyone of what’s in my bank account; but then, who does? So should I not fill out the form which means automatic cancellation or fill it out and let them deny my Medicaid because of my suddenly inflated financial resources from the P.I. settlement?

A: There is not enough information to give you a reliable and through answer. Why would anybody want to risk losing Medicaid funding is my first question. If you handle this improperly you could risk violating the law and lose Medicaid benefits.  I would consult with a lawyer versed in Medicaid rules and regulations before doing anything.

For purposes of Medicaid, what assets are exempt?

Q: I am widowed and getting up there in age. I want to make sure I can protect myself. I own a home, a car, some certificate of deposits and a bank account.

A: This is a very complicated issue and you should sit down with an elder law attorney to review your entire situation-assets, income, insurance, health, everything. Very generally what is exempt are one automobile of any value, prepaid burial expenses, special needs trusts and $2,000 in liquid assets. Some assets are conditionally exempt, for example, the principal residence, while residing in it and some income producing property.

 

Financial Power of Attorney issue. Did the law change?

Q: Long story short, my father has been in and out of a hospital for the last 2 years with complications arising from a benign tumor. Because of his medical setbacks, and in trying to conserve his money, I was able to find POA papers for PA online in order to handle his financial matters. We signed them in front of a notary, and I thought that was the end of it. However, when providing a copy of the POA to the bank to gain access to his accounts, I was informed that the form that we filled out was an old form, and since PA changed their POA laws at the beginning of 2015, was no longer valid. I would need to have a new 1st and last page signed by him and I that include the new 2015 legalese, and resubmit. The issue now, however, is that he has taken a somewhat turn for the worse, and is suffering from delirium. Because of this, I can’t have him sign anything knowing he doesn’t understand or comprehend what he is signing. Do I have any recourse to getting this rectified in his current condition without having to go through the courts to request guardianship/conservatorship privileges?

A: There is an inherit danger with pulling legal documents off the internet. PA House Bill 1429 was signed by the governor on July 2014 and made sweeping pages to Title 20 Sections 5601 through 5620, the law which governs Powers of Attorney in PA. The changes were effective on January 1, 2015. The changes not only affected the Notice requirements, but the Acknowledgement language and much more. I am sorry to say that if your father is not competent to sign a new POA, and the bank will not accept your current POA, you are out of luck. Your only option will be to seek a guardianship over your father. You should see an attorney immediately to review your options, which will likely be to file for guardianship. Unless of course, if your father rebounds, his signature can be taken, or, if he would unfortunately die, then the need for either would not be necessary.

 

I need Elder Law advice on moving mom’s assets.

Q: I am moving all my mom’s assets into Irrevocable Trust for Medicaid nursing home care purposes. I’m aware of 5 yr look back period. The PA Department of Public Welfare Medicaid worker informed me my mom’s $1300/month is too much to qualify for in home help but, nursing home help would be possible. Mom is healthy now but, SHE wants to plan for the future and so do us kids. So protect as much of her assets as much as possible should we place all of the following (IRA, paid for House, Life Insurance Policy, a small Savings Account) into an Irrevocable Trust? We could set the trust up to distribute $700/month automatically to my mom every month making her monthly income $2000 and then, when/if need arises, apply for Medicaid to help cover the rest of the nursing home expenses. Is this a workable plan? Thanks!

A: An irrevocable trust is one tool, among many that people use. If you are planning to move retirement plans into it, they need to be cashed out which often triggers income tax consequences which could make this move not advisable. To advise you thoroughly on this would require an in depth analysis of your mother’s entire situation including her complete assets, health, age, social security income, etc. I suggest that you meet with and Elder Law attorney to work on a blueprint as opposed to just doing this yourself.

How can my daughter get her trust money?

Q: Approximately 6 years ago my daughter, then 12, was a passenger in an auto accident. Her insurance compensation was put in a trust with her mother as the trustee (I was the driver in the accident). I contributed money to the trust so that my daughter would have money for college at age 18. Now my daughter is 18, but, her mother refuses to release the money to our daughter who needs it for school tuition. Is the law on our side to compel the mother to release the money?

A: There is too much information missing to possibly answer this. I will attempt based on what I think may have happened. The way these things are usually handled is that the money is put in a restrictive account, in the minor’s name. The minor is permitted to have access to the money when he or she turns 18. The trust you describe sounds a bit unusual in that her mother (I assume father remarried?) is the trustee. In order to determine what needs to happen to have the money released to the child now that she is 18, the trust document will have to be examined. It no doubt has language that addresses what conditions need to be met in order for the child to access the money. If you truly have your daughter’s interest in mind, you may want to have a lawyer look at the trust document to advise you on the options available.