Category Archives: Uncategorized

Can the value of husband and wife realty be included in an estate?

Q: My father started taking Donepezil for dementia in 2012. In 2013 he had a psychotic episode that required him to be placed at a behavioral health facility and being prescribed Quetiapine. On or about the day he was discharged from the facility my absent brother of 50 years became his Power of Attorney. Since then my brother has done everything to get an early inheritance. My brother even got our parents divorced but the PA Superior Court vacated the divorce and equitable distribution. In 2014 my father changed his Will giving everything to my brother. Now the tricky part is my brother took our father to live in Virginia for the last 5 years of his life, our father died in Virginia, and his Will was probated in Virginia. The real estate is in Pennsylvania. The Virginia attorney says the value of the real estate, along with the personal property located in Pennsylvania, must be included in the estate. If this is true then my mother will get no money, only the real estate. The real estate is valued at $110,000, the personal property $10,000, and the money $105,000. Essentially, if the VA attorney is correct, it is like my mother is buying real estate that belongs to her and my father. (Pittsburgh, PA)

A: I am not sure I understand all the facts. Can I assume you are saying that the house is held in the names of your father and mother and the new will has disinherited your mother? If that is correct, ownership will pass by operation of the law of entireties to the surviving parent and not into the estate and be distributed through the will. Under PA law, but I am not certain of VA law, a spouse can elect to inherit against the will. PA law allows a surviving wife to take a 1/3 interest of certain property transferred out of the husband’s name prior to his death but spouse is charged for the value of certain property he or she inherited. I am not sure if it would be wise to do so if VA has a similar statute, but it is something you should discuss with an attorney in VA. The property situated in PA may require the VA attorney to hire counsel in PA for an ancillary estate.

What should I do if my autistic son was arrested for retail theft?

Q: My 16-year-old autistic son went to a store last week by himself. He was arrested for stealing $5.53 worth of donuts and candy. He was cuffed and taken to a police station to be fingerprinted and all without me. When I got there, I was not able to go in the center. My son came out and they gave me a citation. He now has a plea hearing on April 29th. Do we need a lawyer? Can charges be dropped since he is autistic? (Pittsburgh, PA)

A: If they questioned him, they should have called you first for consent. The charges could potentially be dropped whether or not he has an attorney, given his age and it is presumed to be his first offense. You will have a better chance of accomplishing this result with a lawyer.

Is it illegal if her boyfriend sleeps in the same bed as her children?

Q: A mom who has 2 minor children, ages four and seven. She has her boyfriend living with her and the children. He is sleeping in the same bed with the mom and children. And I will add, this “boyfriend ” drinks every day in front of the children,. A recent accident happened while the two children were in the supervision of the boyfriend. The 7-yearold child fell ten to twelve feet and broke his arm. Child protection is now involved, because of the above. But I would like to know the law as to whether a stranger can sleep in a bed with the mom and the children. (Pittsburgh, PA)

A: I am assuming this is not the biological father. I know of no such law. However, it doesn’t sound right by any means. I have represented pedophiles in the past who have targeted women to date with young children then involve themselves in inappropriate activities with the children such as napping together, “snuggling” on the couch and excessive tickling. I’d be concerned enough that I would tell her it has got to stop and if she does not acknowledge it is wrong, report it to CYF.

What happens if you own property but do not have a will?

Q: My aunt, a widow, is ill and does not have a will. She has three adult children from whom she is estranged. She owns property and has life insurance but feels that is enough. We are trying to avoid a family catastrophe. (Belle Vernon, PA)

A: If she has any property in her name only, (not held jointly or in trust for with others) whether it is real property or personal property, and she has no will in place, it will pass in accordance with the PA intestate succession statute. This statute determines who inherits from a deceased person if he or she has no will. In your aunt’s case, her children will inherit equally from her estate. Her life insurance policy is likely to have a listed beneficiary, but I would tell her to confirm.

Why do I have to prove that I did not live in Ohio in 2007?

Q: Last fall, I started receiving letters from the office of Robert Boich who is supposedly special counsel for the State of Ohio Office of the Attorney General. The letters claim that I owe the state of Ohio taxes for living there in 2007. I called them and told them that I did not live there. I also called the Ohio department of taxation. They told me to send them proof of non-residency in the form of a pay-stub from the beginning and end of 2007 and that would take care of it. I did this, only to receive the same letter from Boich’s office again in January of 2016. I called them again, and they told me that I need to send them a copy of my 2007 W2, federal and PA returns! I do not have these. I was told by my tax accountant to make sure this is legitimate because that was more than 7 years ago. They are claiming that I owe them almost $4ooo including interest! They are threatening to attach my wages and they’ve already put a lien against my name. (South Park, PA)

A: It is either a scam or government ineptitude. Have you googled this man or called the Office of Attorney General of Ohio to see if he is real? All you can do is investigate it yourself. If it is not a scam, you will have to spend time gathering documents to send via certified mail to disprove the allegations to Ohio. Your claim that you don’t have old tax returns can be remedied. It takes 10 days to order tax transcripts from the IRS to prove where you live – IRS form 4507T can be submitted by fax and you will have this information available to you FOR FREE within 10 days. An attorney can help if you want to spend the money.

Can my mom gift her 40 acres to me and my brother?

Q: My mom is taking care of our step-father at her home and we don’t know how much longer she can. He has Parkinson’s Disease. My mom is 82 and she has health problems also. She is on Xarelto. (Somerset, PA)

A: This is too complex of a question with too little information to answer. If either or both of your mother and step father are on the deed, and in the next five years should need to apply for Medicaid, yes there may be an issue. Medicaid has a 5 year look back on transfers for no consideration (gifts). Also, if either needs to liquidate their property to pay for nursing care, that is their right, as it is their property. If they are concerned, have them make an appointment with an attorney who is versed in estate planning and Medicaid regulations.

Must I abide by an agreement made by attorney with the judge?

Q: I was named as a respondent in a court case. My attorney and petitioner’s attorney had a private meeting with the judge behind closed doors. My attorney agreed that I would consent to my mother’s bank records being disclosed for the past 17 years to petitioner. I held a power of attorney at the time but used it for only 11 years straight for only 4 transactions. Do I have to abide by an agreement made by my attorney with the judge and opposing counsel? I do not want to turn over any records as petitioner is mentally unstable. (Pittsburgh, PA)

A: Your attorney presumably represents your interests. An attorney should explain to his client any agreement the attorney enters which binds the client. It is basic Principal-Agent law. If your attorney did not obtain your consent to enter the agreement, you probably need to fire him and hire another attorney to enter his appearance and reject the agreement. Before you do, you should write your present attorney and tell him why you do not consent to the agreement and that his services are terminated. Before you do however, have an in depth discussion with your attorney about what he did. There was probably a good reason and he is acting in your best interests.

My father’s only asset was his home. Do we need an attorney?

Q: The attorney I contacts wants a $4k retainer, and frankly I don’t really want to lay out that kind of money if I can take matters into my own hands to settle the estate. (Carnegie, PA)

A: It sounds like since there is real estate in your father’s estate, it is necessary to open an estate. Without knowing more about the estate, it is impossible to opine whether the fee that was quoted is fair or not. You need to call several lawyers and get prices. You do not need to hire the lawyer who wrote the will. Estate work, if done the right way, is very tedious and time consuming. the more heirs and the more assets, the more time is involved for the attorney. It is not a form filling practice like many lay people think. I recommend that you hire a lawyer but interview several before you do.

How do I go about getting a co-owner’s name off our house?

Q: I bought a house with a friend back in 2004. We have since parted ways and the house is paid off. She left over 2 1/2 years ago and moved to another state and left me with all the taxes and upkeep of the house. I want to get her name off the house but do not know how to do that. We have no contact with each other. She has changed her phone number and I have no idea where she is living other than in Florida. I have been putting a lot of money into keeping the house and paying off the back taxes so would really like to just have my house in just my name. (Pittsburgh, PA)

A: No matter how you are on the deed-as joint tenants or tenants in common-you are stuck unless you can get her to sign a new deed transferring ownership out of her name. I would try to locate her even if you need to hire a private investigator and see how much she wants. Perhaps she needs money and you can buy her out at a reasonable price. If she is unwilling, you can hire an attorney to commence a real estate partition action, which is expensive. However, if you start one, she may not have the money or want to spend the money to defend, and be more inclined to settle.

Should I file for full custody or file a petition to modify?

Q: 5 years-ago I was granted full custody of my two sons. 3 years ago, their father changed jobs and had more stability in his life so I thought 50/50 custody would be good for them. This change was not done through the courts, so the last custody agreement on file is still the one from years ago with me having full custody. I don’t believe 50/50 is working well anymore now that the boys are older, and I would like to have full custody. Their father does not take them to any medical appointments, does not attend their IEP meetings or parent teacher conferences, will not bring them to sport practices on his weeks, does not make sure they’re doing any of their homework, and they just don’t seem to be a priority in general at his house. They also don’t have a bedroom at his house, they sleep in the living room. I was not happy when I found that out, but the boys didn’t have a problem with it when they were younger, so I let it go. Now that they’re older, it’s not okay anymore. So, my question is, which paperwork do I need to file since the 50/50 was a verbal agreement between us for the last 3 years? (Pittsburgh, PA)

A: Even though the last order was full custody with you, the pattern over the years has transitioned to 50/50 status quo now. I believe you need to file for a modification. It sounds like you have great reasons, but the change may not happen right away, unless the father, and the sons, agree to it. It will be better for you if the change in custody does not involve a change in school district. I would consult with and hire a custody lawyer if you can.