Tag Archives: ESTATE LAW

Does cash under the mattress get reported to probate court?

Q: Does cash under the mattress have to go to probate court when somebody dies? The death person gave this money to relatives to hold to prevent creditors of the estate from taking it when he dies. It is impossible for the creditor of the estate to know that this cash exists. A probate lawyer told the two adult children after examining all bank statements of the death person that it needs to be reported. The creditors think that this money was spend. The death person was living rent free in a house that legally belonged to relatives. (Uniontown, PA)

A: Yes, it must be reported. It is considered property of the “death person” in the form of cash and part of their estate. It must be reported on the estate Inventory and estate Inheritance Tax Return.

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.

How? What?

Q: My mother had a stroke and is unable to care for herself. My father passed away 4 years ago. I’m their only child. How can I get power of attorney? Am I able to take over the house they lived in? Neither one had a will or living will. There is more I want to ask and know but I either talk on the phone or in person. (Turtle Creek, PA)

A: You need to find a local attorney who handles wills, POA’s and estates. Find someone who will give you a free or low-cost consultation. Your mother can only sign a POA or other documents, if she is competent. If she is not, you may need to have an attorney petition the court to be her guardian. If mother is competent, an attorney can prepare a POA, Will and Living Will at a reasonable cost.

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.

Can we use a voluntary lien against a home for loaned furniture?

Q: My father passed away recently. He married a woman a few months before he passed who, well, let’s just say, is not the most trustworthy person. He left her his home in his will that was paid for and lien free. The contents of the home were also left to her. However, each of his six children was allowed to claim one piece of favorite furniture, (i.e six pieces of furniture in total). Of course, she would prefer us to leave the furniture and in fact offered to buy it back. Realistically that’s cost prohibitive for her, even if anyone was willing. As I mentioned, she isn’t the most trustworthy person but we are willing to leave the furniture for her to use freely until her death or sale of the home. These antiques are valued at approximately $35,000-$40,000. We would like her to file a free lien against the home or have a secured debt drawn up to ensure the value is protected and that we get it back. She will likely leave the home to her daughter at which time we would want the furniture back “if she doesn’t sell it”. We simply want to secure the value in case something happens. Can we accomplish this by using the aforementioned methods for security? (Swissvale, PA)

A: You can do several things however more information is needed to appropriately advise you. If these pieces of furniture are left to the children through his will as specific gifts, I would likely advise to get them out of the house now. If you really want to leave these items in the house, you can have her sign a promissory note and confession in judgment for the value of the items. If she becomes the owner of the home (via the estate) and there are no prior judgments against her, this judgment will act as a first-in-line lien against the home. This should secure your interests better, rather than waiting to file a claim against her estate after she passes, assuming her heirs even open an estate.

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 long does a closing company have to refund escrowed inheritance tax?

Q: On August 2, 2017, the real estate closing company was provided with a copy of the Notice of Inheritance Tax Appraisement, Allowance of Disallowance of Deductions and Assessment of Tax the Estate received from the Pa Dept. of Revenue showing that the inheritance tax return was “accepted as filed” and no further tax is due. To date we have not had the courtesy of a reply from the closing company.

A: There is no set rule of law on this but generally, it should be a reasonable time-period. I have waited two weeks and more in these situations. I would goggle them to see if they are still in business, if you are concerned. However, it is doubtful that anything is amiss and remember, August is a vacation month. However, if you don’t hear anything by the end of this first week of September, I would call, again.

Pelger Law

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