Category Archives: Estate Law

Am I entitled to my Dad’s last will and testament?

Q: I was the beneficiary of my Dad’s military death insurance when he recently passed away. I don’t have my Dad’s last will and testament. 2 other family members have the will though. Am I legally entitled to have a copy? If so, what is the procedure for me to acquire the will if they don’t want to give me a copy?

A: You deserve answers to your questions. If your father died with any property in his name, a house, car, bank accounts, annuities, etc., it may be necessary to open an estate to pass this property on to his heirs. If your family has filed the will, and thus opened an estate, you can obtain a copy from your local Register of Wills. If you are in Pittsburgh, the Register of Wills is in the City-County Building at 414 Grant Street in downtown Pittsburgh. If family members will not share a copy with you upon request, that is unfortunate. If so, don’t despair, you can seek the help of a lawyer. A lawyer can send them a letter and if still no response, have them summoned to court to produce the will by filing a Petition for Rule to Show Cause.

Is healthcare POA enough to move my mother in with me?

Q: There is a greedy trustee in charge of my mother’s finances who wants to sell all my mother’s properties. The trust states that I can live rent free at one specific property for as long as I wish as my mother wants me to retire in this home. My father built it and I grew up in it. My mother also wants to move in with me since she has dementia and can’t take care of herself. Also, the in-home care she has at her late husband’s house is costing a fortune and will deplete all her assets. The trustee fights me on getting rid of the expensive in-home care. Don’t I have a right to look out for my mother’s best interests and wishes as her daughter and POA of healthcare? The trustee acts like a dictator and expects us to do but why can’t we do what we know is the best thing for us as a family in spite of the trustee using intimidation to get her own way? (Pittsburgh, PA)

A: You need someone with an unbiased and objective point of view to look at the entire situation. I would make an appointment with an estate attorney experienced with trusts and guardianship law in to have the POA and the trust agreement reviewed. In addition, the attorney needs to be apprised of all the facts. If what you say is correct, it may be possible under the language of the trust agreement for your mother to fire the Trustee and have another one appointed. If your mother is not competent, this can be done by an Agent under a POA if the language of the POA permits an Agent to do so. However, as you describe this as a medical POA, it is doubtful that it contains such language. In that is the case, you may need to be appointed as her Guardian. Again, you need a legal consultation.

Question about the Executrix fee

Q: My sister was left as the executrix of my mother’s estate but my mother’s will divides everything evenly among 3 children. To my understanding she gets an additional 5% as being the executrix? Now with, that being said, my mother had a reverse mortgage on her home. The house sold for 184,990.00 settlement expenses were 12,114.44 then the reverse mortgage had to be paid back in the amount of 137,319.03 which left the amount of net proceeds to be 28,741.91 Now does the 5% come from how much the house sold for which is the 184,990.00 or does the 5%come from the net proceeds of 28,741.91? Now I’m only asking because she is giving us a hard time with this and I don’t trust her or the paperwork that she sent to me and my brother that she wants us to sign. I would appreciate some help if you can give it. Because there is a big difference in the amount of money that she is getting compared to what we are getting. (Mt. Lebanon, PA)

A: Generally, executor and attorney fees are calculated from the gross estate, not the net. As far as the percentage for a permissible fee for an executor, 5% is generally the figure people speak of but it is not exactly a correct calculation. The permissible fees for executors and attorneys is explicitly addressed in an old PA common law case, titled the Johnson Estate. When there is a dispute over either fee, this is the case that many courts in PA look to. Johnson uses a sliding scale depending on the type of asset and the monetary value. It is not a straight application 5% for all assets.

How to go about getting Letters of Appointment in PA?

Q: I am trying to receive unclaimed money from my mother’s and father’s estate. The unclaimed amounts are not yet with the state, but are being held by Wells Fargo. I am told I need Letters of Appointment for each. Where and how do I get them? (Pittsburgh, PA)

A: Banks and financial institutions often tell people to “get letters”, or “get a short certificate.’ It sounds like a simple process as if every attorney has a stack of them on file that he can hand out for the asking. What these terms actually mean is that an estate needs to be opened in court. This is usually because the asset is titled in the decedent’s name and can only be passed on to another person from the estate of the decedent. Opening an estate involves preparing and filing a Petition for Probate, estate advertising, Notice to Heirs, Certification of Notice to Heirs, an estate Inventory, an inheritance tax return, possibly income tax preparation and closing of the estate. You should not do this on your own and will need an attorney. My advice is to consult with an attorney. There may be a way to get this money without opening an estate. Some companies accept Waiver of Estate Affidavits, especially if the company is based in another state with different or more liberal probate laws. Also, you may be able to accomplish obtaining this money by a Petition for Small Estate. It has some formality and must go through court but generally should involve less legal fees and time.

Does a home equity line of credit count as a “contract under seal” in PA act like a mortgage?

Q: Lender is considering foreclosure however no payments have been made in almost 5 years. Owner recently passed away and the beneficiaries want to keep house but the amount owed on the home equity line of credit would put the house too far under water. (Pittsburgh, PA)

A: I am not sure of the significance of “contract under seal” here. I would have to see the mortgage papers or look at the on-line docket. This sounds like an estate issue to me. If the home is in the name of the decedent, this is an estate debt and no one else’s debt. If the mortgage balance exceeds the market value of the home, the heirs must decide how bad they want to keep the home. If there is enough liquid cash in the estate, the heirs may be able to pay the lien off or interest the bank in refinancing. If not, this may be an insolvent estate and therefore let the bank foreclose. You may be able to negotiate a deed in lieu of foreclosure with the bank and avoid a messy foreclosure and more fees and charges. You need to be asking these questions to the estate attorney. If you do not have one, you need to get one.

What to do when executor says there was a theft of named items in the will?

Q: Four years after mom’s passing I got a copy of the will. The two heirlooms left for me in the will, my sister, the executor, claims were stolen by a third sister. The executor will not communicate with me, a named beneficiary. I assume this alleged theft must have been discovered after mom’s passing, otherwise would not the attorney have advised the executor to amend the will to reflect the unknown whereabouts of these things in order to protect the executor from financial liability? And would the lawyer not advise the executor of the will to file a police report of the alleged theft? (Pittsburgh, PA)

A: Your questions are valid but there is much missing information here. Like, why did you just notice this after four years? Was an estate opened when your mother died? Is that estate still open? Things will generally go less smoothly if this estate was opened and closed and you had not raised this question before. I would at least try to get an answer from the estate attorney. He or she should be willing to speak with you and answer your questions. If you have no luck, you have a couple options. If the estate is still open, you could wait until the estate attorney moves to close the estate. He or she can close by family agreement which means you would be required to sign off on it. Don’t sign until you get an explanation. If you don’t sign, the estate can only be closed formally, by First and Final Account. The attorney would then attempt to close the estate formally by presenting a First and Final Account to Orphan’s Court. It is called an “Audit”. You will be notified of the date, time and location of the Audit and be supplied a copy of the First and Final Account with the Notice. You can choose to appear at the Audit and convey your objections and or questions to the judge. Your other option is to hire an attorney now to attempt to get an answer for you now, and if necessary file a petition in Orphans Court if the estate Inventory does not show the heirlooms. If the estate closed, you may have a tough time getting back in to court to open this issue.

Is there a length of time that a person needs to live after writing a will?

Q: I have an aunt who changed her will recently and she did it to spite the one son because of his remarriage. Where originally, he was to inherit 1/2 of her estate, and the other son the other half. He now has been reduced to 1/8 of her estate, and her riding mower, with the remaining being divided between his ex-wife and the adult children. Is there a length of time she needs to remain alive to be certain he will not try to contest it? (Delmont, PA)

A: I am not aware of any such law. If she is competent, not under undue influence or coercion, and it has been executed in compliance with the law, her Last Will and Testament is presumed to reflect her testamentary intentions.

How do I get my half of our inheritance back from my abusive, manipulative sister?

Q: My sister said she’d help me while going through a trial for assault by my husband. She’d never been kind before and I couldn’t understand why she was doing it now. Before I moved into her apartment she began telling me I owed her for the care of our parents. We’d never discussed money before but suddenly after our parents passed she decided I owed her my 1/2 of the inheritance. I’d lost everything during my divorce trials, used all my retirement and cashed in my CDs to pay my lawyers. She had no problem taking the money and leaving me with nothing. She said I’d get some back but so far, it’s been $1,000 from what she said was the sale of our mother’s jewelry. I’m in desperate need of that money, 64 years old & just had a heart attack. I’ve been on disability for more than 15 years and live from check to check. What can I do to get what she took by coercion, duress, bullying, guilt and flat out verbal abuse? I’m extremely distraught and am medicine since I’ve had my heart attack. (New Stanton, PA)

A: I know you are looking for a quick answer but there is no way any attorney can answer your question within the confines of email. You really need to sit down with a local estate attorney and bring all the documents and information you have. The attorney can look up to see if there was a will, if an estate was opened and if so, who the attorney was and possibly the extent of the probate assets if your county published inventories on line. Much more specific information is needed. I suggest talking to an attorney first over the telephone to see if you can get some guidance on how to find out as much as you can on your own, and then when you do, make an appointment for a consultation.

Does a will have to be notarized to be valid? Multiple wills?

Q: My dad wrote a will leaving his entire estate to me and my brothers several years ago. Since then he remarried. I’m not sure if he wrote another will or not. I’m just curious if the will he gave us is valid since it isn’t notarized and what happens if he wrote another will leaving everything to his wife acting as if that was the only will to exist. Would the latest one be the valid one? Would it come down to an ugly court battle if something ever happened to him?

A: A will does not have to be notarized to be admitted into probate, however, it makes the probate process easier. It is likely that the witnesses to the will, will need to appear in court to attest they witnessed the will, or provide an affidavit to the effect. Normally, the new will is the one in effect as the new will presumably preempts the prior wills. Most wills have language which states that all prior wills are revoked.

My aunt will not give back grandma’s house and cars in Ohio

Q: Aunt was over seeing my grandparent’s accounts and house. She was screaming at them and mocking them. Eating their food and spending their money. They asked to be rescued. I got them out of state back to PA from Ohio. Now my Aunt doesn’t want to relinquish house or cars. The police in Ohio won’t help, they say it’s PA’s problem. PA police here say they cannot force her to give up the keys in Ohio. Please give me a next step. Grandma had dementia but Grandpa has full faculties. (New Castle, PA)

A: Way more information is needed to answer this thoroughly. Is the aunt acting under a POA from grandfather or grandmother? If not, she should not be able to exercise custody of another person’s home or personal property. I think you should take your grandfather to an OH elder law attorney and have him execute a POA to you or someone trustworthy to handle business in OH. Perhaps you can find an OH lawyer who is licensed in PA. Once this is done, the Agent on the POA can go to OH, change the locks on the house and get the police involved. I think a letter from an attorney in advance to the aunt providing notice that she is in violation of the law and providing fair warning will help. If the aunt continues these actions, she is a trespasser in the home and an unauthorized user of the vehicles.

Pelger Law

William R. Pelger, Attorney at Law in Munhall, PA