Category Archives: Estate Law

Who gets dad’s bank account?

Q:  Father opened a bank account in his name only in 1974. He was divorced in 1981. The bank account was not mentioned in divorce. He remarried in 1982. He died in 1998. Who does the account belong to? the first wife, current widow or kids?  Father opened bank account in his name only in 1974 and he was divorced in 1981. The bank account was not mentioned in divorce. He remarried in 1982. Died in 1998. Who does the account belong to, the first wife, current widow or kids?

A: If he has a will, it goes to the person or persons in the will. If he excludes his widow, she can elect to take against the will. If he has no will, his estate will pass through intestate succession in PA which means the wife get s the first $30,000.00 and the balance is shared between her and the children. If this is any amount of money worth fighting for, I would consult with a lawyer as soon as possible.

 

Have I committed elder abuse? He is 77 and spent $ 70,000 on me

Q: He is caring for me as he wants to marry me. I agree to marry him if he pays for my law school. He has been paying all old bills and new bills, taking me shopping. Deposit directly into my bank account about $25,000.00. However, I have become concern that I can’t marry him even if he did pay for my law school. Every time he meets with his attorney she says I am committing elderly abuse of the large sums of money I keep extracting from him. He offers he runs to the bank in deposits I have not promised him sex nor love nor have I said I love him It was simple he wants to marry me. I want to be taken care of and obtain my education. But if I am accused of elderly abuse now what is going to happen when I do marry him and I am never home and he becomes ill or I am 55 and he is like 90?

A: If you are contemplating a legal career, this is not the way to learn elder law.  77 years is not that old, but some people do have an early onset of dementia. Even if he has no clinical diagnosis and is clearly competent, if he is paying out all of this money with hope that you will marry him, and you seriously doubt if you will fulfill his hope, then you are taking advantage of him. You need to tell him that you will not marry him. The worst he can do is stop paying your way. It will be tough, but if you have a conscience, you will feel better. As a word of caution, if his lawyer has the opinion that your actions constitute elder abuse, there may be a basis for such allegation, which should give you all the more reason to stop. With your interest in the law, you may want to look up PA’s specific crimes for exploitation and fraud upon the elderly.

 

Can an injury settlement be given in a will?

Q: If the person writing a will is waiting for a claim settlement that could take a long time, is he able to put it in his will?

A: I have seen it in wills. For example, language such as “I hereby give and bequeath any injury settlement proceeds I obtain from my pending law suit against ACME Corporation, to my dear friend, Hans.” If the injury settlement comes in after the estate closes, letters of administration can be subsequently raised temporarily to handle the settlement and payment of  inheritance tax.

How can my step children inherit from me in my will?

Q: In Family section of my Will I have included both my children and my step children and called them all “my children.“ Is it permissible in Pennsylvania to include both natural children and step children as children in my will without being specific. My intent is to treat them all equally.

A: In PA, they may not be legally considered “children” unless adopted unless paternity was established putatively (by your actions as raising them from birth as your own). However, the beauty of a will is that you have the complete discretion to choose the persons who will inherit from you, regardless of their biological relation. If you spell their names out in the will that would accomplish what you want. If you would die without a will (intestate), then inheritance of children is based on bloodlines established by the PA intestate succession statue. If there is the potential for any riff between your natural children and step children, make sure that your will is secured and protected so that it can be probated when you die. If your children would resent that your step children should inherit from you, they could destroy your will so it would not be probated and intestate law would be followed which may cause the step children to be excluded as heirs.

If I am in Bankruptcy, can my aunt put my name on the deed to her house?

Q: In Chapter 13 can I be put on another house’s deed? I declared Chapter 13 about 3 years ago and have been making payments. My aunt wants to put me on her deed. What are the ramifications of that, and the risks to her? She will be entering a nursing home and doesn’t wish to sell the home.

A: Two issues. Is this wise to do for estate planning purposes for your aunt and is this wise for you to do while you are in bankruptcy? From an estate planning point of view, if she titles the house jointly with you, only half of the value of the house will be subject to inheritance tax when she dies. Since the applicable inheritance tax rate for a nephew is 15%, this could save some money. The negative side of such transfer is that if in within five years following the transfer, your aunt needs to apply for Medicaid, such a transfer could make her ineligible for Medicaid funding. The house would have to be included in her assets subject to the Medicaid claim and you may be forced to sell this house unless you could pay the fair market value to Medicaid. This is of course unless some Medicaid exclusion applies for example if you lived in the home as her caretaker for a period of two years prior to the application date. If your aunt really foresees Medicaid funding in her future, you should have her consult with an attorney versed in Medicaid law in order determine if she can shelter some of her estate now perhaps through a Medicaid trust. As far as your bankruptcy, I would check with your bankruptcy attorney as the acquisition of an interest in real estate while under a bankruptcy plan, may, violate your agreement with the trustee assigned to your bankruptcy case.

Can someone leave an assisted living and go home with a nurse of they want?

Q: He would go home to his “wife”, but she doesn’t want him at home. It is not right. He is wealthy and is now on walker and needs assistance but wife doesn’t want to help. His mind is sharp as a tack still but when he was ill he gave wife and son power of attorney. His son has control over his money. He wants to go home and get a nurse but they won’t let him. Can he get help? They just don’t want to be bothered and have a nurse there all the time. It cost him 6,000 a month to live at this nursing place. He is not dead yet and they won’t let him live his life what he has left.

A: If he is still competent, it is up to him whether he wants to return home with a nurse. Even if the wife son are his Agents on a Power of Attorney, he still can make decisions for himself. He may also want to consider a new POA in which he appoints a new Agent. This will have the legal effect of revoking the old POA. If what you say is true and he is competent, he should consult with an attorney as to his wishes. In theory, he should be able to sign himself out of a nursing home and contract for home nursing care on his own. It sounds like there may be a family conflict, which is unfortunate. I am not sure if there is any service the Department of Aging can provide to intervene but it may be worth a call. I think it would be very beneficial and perhaps dispositive, if his doctor would approve of him returning home with nursing care.

If husband dies, can I change my will?

 

Q: My husband is in declining health. If he passes away before me, can I have our will changed? My husband has terminal cancer. We were married five years ago. This was a second marriage for both of us. When we had our will made, we divided everything equally between his two “adopted” adult daughters and my two biological children. In recent months his adult daughters have proven without a doubt that all they are after is money. His, mine and whatever they can get their hands on. I recently found out that they were foster children that he took in as teenagers and were never legally adopted. He refuses to change the will. My mother is very concerned about my future inheritance from my family, getting into the hands of these two women. Do you have any suggestions? I actually considered divorce.

 

A: Estate planning for second marriages with children from a prior marriage, is always difficult. No one can really advise you without looking at these wills. Are you are saying that you have traditional husband and wife wills where, you inherit from each other, then when the survivor dies, the estate his divided between his daughters and your daughters? If so, yes, when he dies you can make a new will. It runs contrary what you agreed with him, and he may come back to haunt you, however, you are free to change your will as you desire. If my assumption about what the will says is correct or incorrect, you nonetheless should consult with an attorney so you are fully advised of your options.

Can I sell property with a Power of Attorney without the person’s knowledge?

Q: Can you sell someone’s property under their general durable power of attorney without the person knowing or signing documents? Can you get in trouble for doing this?

A: All powers of attorney have an underlying understanding that the agent is acting in the best interest of the principle. If the principle is competent to make his or her own decisions and you, as agent, are operating behind their back doing this, you are not fulfilling your duty. If they are incompetent and you are acting in their best interest, that is another matter. You really need to have a local lawyer look at the POA and assess the situation. Is it a standard general durable POA or is it a springing POA? Is the principle competent? Is this move in the principal’s best interest? There have been two significant changes in POA language by the PA legislature, one is Act 39 in the year 2000 and one is Act 95 in the year 2014, effective January 1, 2015. Much of these changes were made to curb and police the actions of agents who exceed their powers in not acting in the principal’s best interest.

Brother has a will, but put us on his certificates of deposit

Q: My brother had his will drafted in 1999. In this will, all of his property was left to a certain friend of his.  However, several years later, he added me and our sister to his certificate of deposits.

A: Generally, jointly held property (joint tenants with right of survivorship) goes to the surviving tenants and does not go into the estate. Therefore, if your brother made you and the sister joint tenants with him on the CD’, when he passes, you and your sister own the CD’s and they do not go into the estate nor to the “certain person” listed in the will. If the transfer of the CD’s was done within a year of death, they are fully taxable with a $3,000.00 exclusion. If made beyond one year prior to death, the surviving tenants only pay inheritance tax on the deceased tenant’s share. Thus if you, your brother and your sister are joint tenants with right of survivorship, then inheritance tax is only due on one-third of the assets.