Category Archives: Estate Law

My mother died in FLA without a will

Q: My sister who lives in FL (I’m in PA) got an attorney and become the executor. It seems the lawyer is not working with me and will not talk to me. I think I need to get my own lawyer and if I do, will my portion of the estate have to pay both? I never signed anything. Also, can the executor avoid going into probate as she is not dividing the estate equally. I also know she uses marijuana. Can I ask for a drug test and get her removed as she is not making good decisions? Any help would be great appreciated. Thank you. (Pittsburgh, PA)

A: If an estate has been opened in FLA and your mother died without a will, you are likely to be an heir under FLA law if there is anything to inherit. If the attorney for the estate is not responding to you, that is not good. I would send him or her a certified letter containing all your questions. If you get no response, you may want to see if the county has a probate court website for you to look for her estate or call the Probate Court and see what you can find out. If your inquiries are not satisfied, you should call a lawyer in that county who handles estates. There is a process involved in petitioning the court to remove an executor. An attorney in FLA can advise you if this is necessary.

My mother died with no will, a car and $1000

Q: She has no spouse. She has about $1000 in a checking account and an older car, Blue Book Value $2000, which is currently sitting in our driveway. We are not using it. The registration is expired, and it requires repairs. She has no life insurance or other assets of any kind. Her current medical bills/nursing home payments due will wipe out the checking account. We have limited resources after caring for her for years and cannot afford a lawyer, court fees, etc. We would like to pay off her debts as far as possible utilizing her assets. How can we do this legally without incurring expenses for ourselves? Is there any way to just walk away from this and let the creditors and state figure it out? (Pittsburgh, PA)

A: Assuming she has $1000 and an old car, you might want to do nothing. You can get the $1000 from the bank under section 3101 of the Probate, Estate and Fiduciary Code if you are a child and go to the bank with a copy of the paid funeral bill and a death certificate. The car can be sold through AAA or other motor vehicle transfer agent. It will cost you thousands of dollars to open an estate and then you will be harassed by creditors. If your mom received Medicaid, hang on to the $1000 for about a year to see if the PA Department of Human Services will file a Medicaid claim against her. They can claim the $1000 as an exception to Rule 3101. You can file an inheritance tax return and “0” it out as I am sure someone paid more than $1000 in funeral expenses which are deductions. Again, you could do nothing and leave the money sit. You will have no personal liability. Her estate, if someone opens one, is the only party who will owe her bills.

Do I need to probate my mom’s estate?

Q: My mom passed away two years ago. She lived with me and I paid all her bills. I paid $13,000 for her funeral expenses. Recently, I received refunds from the hospital for approx. $2000 in checks for copays when my mom was paying. I helped her pay them. I didn’t probate the estate because I was told it’s insolvent and there wasn’t any need to do so. Now I have these checks made out to her name. What do I do? The $600 in her bank account was split between myself and my brother. The credit cards are still unpaid, but they were told her estate is insolvent. Where do I go from here? (Pittsburgh, PA)

A: To answer your question I would need more information on the extent and type of assets and debts. The Estate Recovery program managed by the PA Department of Human Services can seek recovery of monies paid out to a Medicaid recipient, from their estate. If there no estate opened, it is doubtful if they will pursue recovery. However, they can go after other monies held in your mother’s name with others. You may want to consult with an attorney to determine if it is worth opening an estate. From what you describe, it may not be. You have no duty or obligation to open an estate.

Is a POA entitled to payment from estate?

Q: My father’s personal injury attorneys created a Power of Attorney and I was the Agent. I served in that capacity for about 2.5 years. The estate is being settled exclusively by the probate/estate attorney.

A: Possibly. If the Power of Attorney authorizes payment of a fee for Agent services performed, then yes. If not, then no. If the POA authorizes payment of the Agent, you can submit a bill to the Executor.

How do I find out what was in my mother’s will?

Q: I found out my mother passed away from an ex-son in law that send us a text regarding her funeral services. I had been visiting my mother in California, four times a year because they would not let me bring her to PA to take care of her. She had dementia and it was hard seeing her neglected in their care. I am the only daughter I was pushed away by my brothers. (Ligonier, PA)

A: If your mother had a will and there was a need to file it, the person appointed as her executor in the will would likely have filed it in the Probate Court of the county in which she died. You can call that county’s probate court and see if they can tell you or direct you on how to do a record search. If you find the will and can get a copy of it and still have questions, you would need to consult with a lawyer to review the will. If you need legal representation to challenge the will or find more information, it would be best to hire a lawyer in the same county where she died.

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)