Category Archives: Estate Law

Living Will versus my oldest sibling?

Q: My father has a Living Will that says do not resuscitate but Dr. Says it is up to the oldest child, my sibling. Who is correct?

A: A valid legal living will with an appointed and designated agent/surrogate who is ready and willing to act, should be honored by a hospital or medical provider. Your father’s Living Will needs to be in full compliance with Pennsylvania law. If you are the designated agent or surrogate on such a legal Living Will, the end of life decision should be made by you as directed in the Living Will, regardless of what the doctor or hospital says. I have had certain hospitals that inform next of kin that they are not obligated to honor a Living Will, and I really don’t understand it. The Living Will I use in my practice is taken directly out of the Pennsylvania Probate, Estate and Fiduciary statute. It seems that some medical providers will only honor a Living Will or DNR code document drafted or endorsed by their lawyer, for whatever reason. You should have a meeting with the doctor or the social worker, tell them your position and ask them to explain their reason. If there is no resolution, change doctors. If that is not possible, hire a lawyer to contact the doctor or staff. If there is still no resolution, the lawyer can file a petition in which it is requested that the doctor or hospital appear in court and tell the judge why they do not conform to Pennsylvania law.

If mom enters a nursing home, can I keep her house?

Q. When my elderly mother enters a nursing home, can I keep her house? I am her 24/7 caregiver and have no home otherwise. I have household expenses, upkeep and taxes. The deed is in her name. I don’t know what other details are required here. I have lived here and been her caregiver for 12 years.

A. Make sure she has a Last Will and Testament in place in which the house is left to you, assuming that is her wish. If there are no other children and she has no surviving spouse, you can inherit the house even without a will. However, it is best for her to have one. If she runs out of cash to afford nursing home care, you may have to apply for Medicaid/DPW for her. They may claim an interest in the home but as a surviving child/caretaker living in the home, they will not throw you out of it. When she dies, DPW can go after the deceased person’s property under the Medicaid Recovery Act. However, since you were her caretaker for 2 years prior to DPW eligibility, you can file an undue hardship petition and probably keep the house. I would see a lawyer versed in Medicaid law to review your mother’s specific situation.

Can an Executor sell estate real estate to a Co-Executor without approval of an heir?

Q. Can an executor sell the home in the estate to a co executor at a discount without approval from the beneficiary?

A. The last time I visited that subject here in Allegheny County, an executor needs to seek court approval to purchase real estate owned by an estate. It is a conflict of interest for the executor to sell realty to himself or herself. If the beneficiary is in agreement with it, and the agreed upon sales price is not ridiculously low, things should go well with the judge. If the beneficiary is not in agreement with it, there could be a problem. The judge may require a hearing with notice provided to the beneficiary to attend. In this case, the purchase price should be fair or at least reflect being close to fair market value. Real estate appraisals may be required.

Is a prepaid funeral a proper way to do Medicaid “spend down”?

Q. My father is in a nursing home applying for Medicaid. My mother wants to pay for burial costs now. Would this be a bad thing, applying for Medicaid? My father is already in nursing home and afraid Medicaid will take all of his money.

A: Any “spend down” should be done as part of the spending down provisions through a Medicaid eligibility application. Certain prepaid funeral arrangements are Medicaid exempt, it would be a really, really bad idea to make prepaid funeral arrangements with the idea of protecting assets when long term care is needed UNLESS the arrangement is part of Medicaid planning under auspices of an elder law attorney. Why? Because prepaid funeral arrangements are exempt only if they satisfy state requirements, an arrangement that doesn’t meet state requirements can cost thousands of dollars by delaying eligibility, and a prepaid funeral may or may not be the most cost effective technique in different situations. It is well worth consulting a local elder law attorney.

Should my mother put my sister and I on the deed to her home?

Q: My mother thinks that her name should be taken off the deed to her home and my sister and I should be put on the deed to avoid complications when my mother ultimately goes into a nursing home or dies. First, we heard this is an expensive process. Is that true? Secondly, is it advisable?

A: To answer your first question about expense, this is not an expensive process in your case. Assuming your mother is the only name on the deed or she is on the deed with your deceased father, this transaction should be exempt from PA real estate transfer tax as it is a “family transfer”. If it were not exempt, such as the case with most real estate sales, or transfers to non-family members, the transfer tax is at least 2% of the sales price or market value of the realty. For a $100,000.00 home, this could be a $2,000.00 transfer tax. In your case, the only costs to you would be the attorney fee to draft the deed (usually $100.00 to $300.00) and the filing fee paid to the Department of Real Estate, which is $150.00 in Allegheny County. Whether this transfer is advisable in your situation, is a much bigger question. There are advantages and disadvantages to both parties of the transfer, you and your sister, as well as your mother. You should consult with an attorney before changing names on a deed to make sure you are well aware of all the issues including real estate tax discounts, inheritance tax, capital gains and PA Medicaid eligibility and liens. In summary, this transfer could exclude her from Medicaid eligibility if she needs to apply in the next five years, by transferring to you she may lose her senior citizen and Homestead Act real estate tax exclusions and discounts. You and your sister may face a capital gains tax when you sell this house. Such transfer will avoid inheritance tax if mom lives one year past the date of transfer, however, is it really worth it to avoid a tax rate of only 4.5%? Should mom transfer to mom and you two siblings as joint tenants instead? Those are just a few things you will need to discuss with an attorney before doing this.

My sister and I inherited mom’s house. Do we need to pay inheritance tax?

Q: My sister and I inherited my parent’s house and I have lived in it for the past 7 years since my mom died. We want to sell the house to a neighbor but her attorney says my sister and I must file an inheritance tax return and we will probably owe inheritance tax dating back to when my mother died. What do you think?

A: The attorney may be correct. Your parent’s home was probably jointly held by them by the entireties as is usually the case. When your father died, your mother inherited it from him by the law of entireties but was subject to the spousal inheritance tax rate of zero, so no inheritance tax was owed. Assuming you and your sister are the only children, you both inherited this house under your mother’s will or under intestate law from your mother. At the time of her death the house was most likely subject to inheritance tax which would have been due within 9 months of the date of her death. If that is the case, this tax and any interest that has accrued and possibly penalties are now owed. You should consult with an attorney to confirm this and to prepare a PA inheritance tax return using all available expenses as deductions. You will likely need to pay inheritance tax.

If I die without a will, does the state take all of my money?

Q:I have heard that if I die without a will, the government takes all of my money and property and my heirs receive nothing. Is this correct?

A: Absolutely not, but you would be surprised how many people think so. If you have a valid will at the time of your death, your property and money will pass to whom you name as heirs in the will. This is of course after all estate taxes and expenses are paid. If you die without a will, your property and money will pass according to PA laws of intestate succession, which means Pennsylvania decides what portion of your property passes between your surviving heirs. The other degree of control over your estate that you lose by not having a will is that without a will there is no named Executor and therefore, if not otherwise agreed upon by your heirs, the court decides between your surviving heirs who should be in charge of your estate. In some cases this can lead to a family feud in probate court.

POA for Aging Mother

Q.           A year ago my mom fell and broke her femur, I also think there is more health issues. She cannot live alone anymore. I’ve been with her seven months it was to be one month only, she doesn’t want a nurse and she doesn’t want to sell her home. I have my own family to go home to, I need help please. I don’t know what to do anymore she is being very selfish and uncaring of me and my family. she wants what she wants. Can you please help me.

A.            I would consult with a local elder law attorney. You have no obligation to take on such a role, especially if it is detrimental to your health. Dealing with aging parents can be frustrating, time consuming and can cause stress. You can call the Department of Aging for assistance, but that may not be the best answer. If she is competent, you could get a Power of Attorney from her and make decisions that are in her best interest. For example, you could hire in home care at first to see how that works before moving her into an assisted living situation.

How do I revoke my Power of Attorney?

Q: How can I revoke my power of attorney? What if my agent engages in unauthorized acts after the power of attorney has been revoked or terminated? I’ve worked outside of the United States for the past 10 years. I granted my wife POA to purchase a home and access finances in 2004. We later divorced and I retained possession of the document. We’ve since remarried and reestablished a joint residence but because I was out of the country she oversaw the movement of my property into her home. When the question came up I was told that several documents including the POA had accidentally been misplaced or destroyed during the move. During my last visit, we moved once again into the house I own so she could sell hers. While checking online records of the sell of her house I discovered that the misplaced POA had been entered into county records at the same time.

A: Normally, at least in PA, POA’s are not filed  as part of estate planning. They are filed when an incapacitated person, who has a POA, wants to transfer real estate. In such case, they are filed simultaneously with the deed. Most POAs should have language that states that the POA can be revoked in writing by the Principal. Therefore, you should be able to revoke this, by drafting a written Revocation of POA. The Revocation of POA should be sent or delivered to all those persons or entities who have a copy of the original POA on file.

Married With No Wills

Q: I am married and my wife and I do not have wills. We heard that not having wills doesn’t really matter to us as we would inherit from each other anyway under PA law. Is this true?

A: This is true if the deceased spouse and you have no surviving child or the deceased spouse has no surviving parent. When a person dies without a will, his or her probate estate passes in accordance with the laws of intestate (no will) succession. Under PA intestate law, if one spouse dies and is survived by a child (who is also the child of the surviving spouse) or a parent, any property of the deceased spouse that would pass through his or her estate will pass to his surviving spouse and a portion of it will also be shared by his surviving child, or if none, a surviving parent. If you are married and have a child or living parents, the only way to make certain that you and your wife inherit from each other is to have husband and wife joint wills prepared by an attorney.