Category Archives: Estate Law

Can a convicted felon be executor?

Q: My brother wants to be executor of my mom’s estate. He’s a criminal and I won’t stand for that. He was convicted in Pittsburgh Pennsylvania and served a little time.

A: Much to your chagrin, yes. Section 3156 of the PA Probate Estates and Fiduciary Code excludes those charged with homicide but does not exclude someone with a felony conviction.

  1. Persons not qualified. Section 3156 reads as follows:
    No person shall be qualified to serve as a personal representative who is:
    (1) Under 18 years of age.
    (2) A corporation not authorized to act as fiduciary in the Commonwealth.
    (3) A person, other than an executor designated by name or description in the will, found by the register to be unfit to be entrusted with the administration of the estate.
    (4) The nominee of any beneficiary, legatee or person having any interest whatsoever, when such beneficiary, legatee or person is a citizen or resident of any country outside the territorial limits or possessions of the United States, when it shall appear doubtful to the register that in the distribution of the estate any such person will have the actual benefit, use, enjoyment or control of the money or other property representing his share or interest therein.
    (5) Charged, whether by indictment, information or otherwise, by the United States, the Commonwealth or any of the several states, with voluntary manslaughter or homicide, except homicide by vehicle, in connection with a decedent’s death unless and until the charge is withdrawn, dismissed or a verdict of not guilty is returned.

Now, if you feel that this person is otherwise not qualified, you can object to appointment by filing a Petition for Rule to Show Cause with the Orphan’s Court. If you feel the person is dishonest you may be able to tie his criminal history in with other instances of conduct. It may help if the crimes were those of crimin falsi, Latin for crimes of dishonesty. If you want to challenge his or her appointment, I suggest consulting with a lawyer.

Can I use Small Estate Affidavit to obtain insurance proceeds?

Q: My son was killed in a single car accident in Pennsylvania, where he also was a resident. He had no will. The auto insurance paid for the car (he owed nothing on it) payable to the “estate of (his name)” in the amount of $11,200. I was not going to open an estate for such a small amount. Can I use the Small Estate Affidavit under the 3101(d) Probate Code to have the insurance company make the check payable to me? He had no wife or children. I realize 3101(d) just covers up to $11,000. I would be willing to ask the insurance company to forego the $200 if they will reissue the check to me. The insurance company says they can only make the check payable to whoever the car was titled to. Any suggestions on how to handle this situation? Thanks. (Pittsburgh, PA)

A I believe the statute reads, accident, life, etc. so I am not sure why they will not pay up to $11,000.00. Sometimes, claims people at insurance companies, especially if they are not in PA, are not familiar with the statute. You may want to send a copy to them and highlight the applicable portions of Section (d). Whether the issue is the $200.00 excess with them, I don’t know. I would think you can sign a waiver of that and the $200.00 would then be transferred to the PA Department of Unclaimed Property.

How do I hold POA uncle accountable for my mom’s money?

Q: My mom had a will and trust. My uncle had power of attorney over her and he went on a power trip. I know he had some bank accounts in his and her names on that were considered part of my mom’s estate and is he accountable for the bank accounts. If so, how do I go about getting him to be accountable and showing receipts for his withdrawals of the bank accounts during his time of power of attorney. During that time, he filed a restraining order against me, my mother’s only child. (Pittsburgh, PA)

A: You can ask him for an accounting of all bank statements and receipts, but it sounds like that is not going to happen. The correct legal procedure needed to hold an Agent on a Power of Attorney accountable is to file a petition in probate court asking for an accounting of all expenditures and deposits. I would not try this on my own if I were you. You should consult with an attorney.

My mother’s will was never notarized. How do I handle her estate?

Q: I have the original will with signatures, however, it is not notarized. The will has 2 executors who have not started any legal proceedings to settle my mother’s estate due to them not wanting the responsibility. The estate includes a house and an Allstate insurance claim. The will states that my mother’s four children and her boyfriend (executor #1) are to be willed her house, belongings and any monies left. Two of my siblings (over 18) still reside in my mother’s home. I pay the property taxes as there is no mortgage and they pay the utilities. The Allstate claim is from an accident settlement my mother received for a car accident that turned her quadriplegic. We believe this Allstate claim is to pay back Medicare since the settlement monies were put in a trust for her medical expenses. To our understanding, once Medicare is paid, whatever monies left over will be split amongst all parties listed in the will. To our knowledge it is over $400,000 that Allstate must disburse. Us four siblings have no clue how to move forward with getting her estate settled and being legally put on the deed to her house. (Pittsburgh, PA)

A:  It sounds doable. A will is not required to be notarized to be legal and admitted to probate. As stated, if she signed at the end of the document and two witnesses have signed below her, it should be admitted. If the boyfriend does not want to be executor, he can renounce, and the testate heirs (in the will) can choose another person to serve if they all agree. Are you sure it is Medicare and not Medicaid? My thought is that it is Medicaid who has a lien, and they will be need notified of the estate and settled with. I think the more complicated issue may be dealing with the two siblings who live in the house. Nothing here is that unusual that an estate attorney cannot help you with so you need to make an appointment.

What happens to my grandfather’s assets if no will?

Q: He had a wife. My father is his only child, but the wife has 4 adult children. I read that step children aren’t considered kids in TN and that all his assets would have to be equal distributed between my dad (his only child) and his wife. (Pittsburgh, PA)

A: When a person dies without a will, the laws of intestate succession apply. In PA, the surviving spouse takes the first $30,000.00 and the balance of the estate is divided between her and the children born to both of them. (their biological children)

Will I be liable back property tax if I am her POA?

Q: My friend wants to make me power of attorney. She wants to give me all her belongings when she passes away for taking care of her now. She owes $6,000.00 back property tax that she says she cannot pay, I just want to know if I will be liable for that? (Swissvale, PA)

A:  As an Agent for a Principal under a Power of Attorney, you would have no personal liability unless you acted beyond your scope of authority. You cannot sign a will for her as her Agent. She needs to sign the Will. If you inherit the house through the will, you would be liable for the property taxes. I have seen taxing bodies sue heirs of real estate under a will, even when they do not take title by deed. If you inherit other money from her, you may be able to pay the taxes. You should get an idea of what her estate would consist of and what her estate expenses will be and review it with a lawyer.

How long after probate does Medicaid have to recover money?

Q; Mom in Nursing home with Medicaid for 7 months. Dad paid cash for her. Mom died in May 20l6. Dad died July 20l6 with $70,000 in his bank account and the house. We never received a bill from Medicaid. We are in probate, but no response from Medicaid. The attorney said they lost the bill. We don’t want to be involved in Medicaid Fraud.

A: You need to ask your attorney what the status of the Medicaid claim is. Generally, once an estate is opened, the estate has an obligation to notify the state’s Medicaid program of an estate being opened, in which county it has been opened, the docket number and the contact person for the estate. Once this is done, Medicaid is considered to have been put on notice of the estate and to promptly file their claim. If the estate was legally advertised, in theory, all claimants have on year from the first date of advertising to file a claim. Even so, a Medicaid claim normally must be satisfied.

How can I have my 93-year-old mother declared incompetent?

Q: My sister and I have had joint POA since 2013, but not immediate. We have never exercised any POA. I have been taking care of her, although she is in an “independent living” place. I do her finances, her shopping…she should not be alone any more, as her health and mental condition are both deteriorating. She cannot live with me. My sister and her husband are willing to have her move in with them in another state, until a nursing home or hospice is the only option. She does not want to go, but at this point it cannot be her choice anymore. Ten years of my life are gone. (West Mifflin, PA)

A: This is a difficult situation. If your mother is deemed to be incompetent to manage her own affairs, you can file to be appointed her guardian. Until then, she can make her own decisions. You really need to sit down with a lawyer who handles guardian work and share all the facts.

During probate, can I get my belongings from decedent’s home?

Q: My aunt died without a will and left a property behind in Pennsylvania. She has only one living daughter in Florida. She hired a probate attorney who set up a trust to deal with the process because she is too busy to deal with it herself. There are many things in the house that are mine that my aunt had let me keep there for storage. I try to enter the home to retrieve them, but the trustee tells me I am not allowed on the premise. Is there a way I can be allowed inside? I am afraid that my valuable belongings will be inventoried along with my aunt’s things. (Pittsburgh, PA)

A: A Trustee or Executor, has legal authority over real and personal property of a deceased person. They have a duty to preserve it and keep it in tact until it can be inventoried and accounted for and properly disbursed pursuant to the trust agreement or will. If you cannot work this out with the Trustee or Executor, you will have to hire a lawyer to file a petition in the Orphan’s Court in the county which has jurisdiction. This is likely to be where your aunt resided and died. If this property is indisputably yours, you should have no problem. If there is a question and you have no clear proof such as receipts or records, it may be difficult.

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.