Tag Archives: probate

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.

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.

Can I find out if my aunt abused her POA on grandparent’s estate?

Q: My grandparents were both part of a lawsuit. They both died from Mesothelioma and aunt was the power of attorney. My mother and her siblings have only received two small payments totaling less than $8000 each. There are 8 heirs including my mother. We’ve seen that these lawsuits have large amounts of money and we want to find out if our aunt has been stealing from them. (Pittsburgh, PA)

A: You could call the law firm who handled the settlement and see if they will tell you. If they will not, you will have to do a little investigating yourself. The POA has no effect after the death of the grandparents. There is a good chance an estate was opened. You could look in the Register of Wills in the county your grandparents died to see if an estate was opened. If there was, it might list the beneficiaries or heirs. You could also check the inheritance tax office to see if there is an inheritance tax return on file. It may also list the beneficiaries. If you get nowhere, you can hire an attorney to see if he can get the information from the law firm or the company that paid. It may involve a subpoena or records request.

Why do I need to sign off on mom’s estate if the will is false?

Q: have been estranged from my mother (valid reasons) since 2009. My father passed in 2000 and my mother passed a few weeks ago. I am one of 4 siblings and my younger sister (who dislikes me) has POA. I did pay my last respects to her and recently found out the will was revised 12/23/18 while my mother was in the hospital and under medication. I was removed and replaced with my nephew, her grandson. I am being asked to approve this and am waiting for paperwork to review. My mother has treated me badly for years for no apparent reason. What is my recourse? It’s not about the money, it’s the principal and I had a great relationship with my father until he passed, therefore am not going to approve this revision. (Plum Borough, PA)

A: I assume they want you to sign off on the estate by a Family Agreement or other type of consent document, which will close the estate? The only thing I can advise is to take the papers to a lawyer. If you are saying that you want to challenge the will, you will have the burden to prove that your mother was incompetent at the time she signed the new Will, or that she signed it under the undue influence of your sister. It will be hard for you to investigate this and get medical records because if you are not the estate executor. Your attorney should be able to obtain these records and assess the situation.

Can court order you to sign the vehicle title?

Q: I am being court ordered to sign my half of 2 vehicles I own with my mom who is deemed incapacitated. The court fined me $2000.00 for a contempt charge I should be able to purge. The court did not state any statute or Pa. Code in the order. To me this is a seizure of property unjustly. The guardian of the estate wants the title signed and if I don’t there will be more sanctions. This seems to be illegal seizure of property. The court is saying if I sign over two vehicles to the estate ( not the court) then the fine is vacated. I could sell my half for more than the fine and pay it that way, but PennDOT says if I sign the title there is not much that can be done. Does this court order have to cite a pa code or statue allowing this title being taken from me? PennDOT has never done this before.

A: Not sure what is going on with your situation. My guess is that you are in Orphan’s Court and an Orphan’s Court judge ordered you to sign back over property which he or she believes, and opposing counsel as well , that you misappropriated from an estate? I think you are fighting a losing battle, without me researching this issue to be certain. Generally, Orphan’s Court is a Court of Equity and can order titled to be changed, deeds to be changed and property awarded to a party or an estate. For a definitive answer one would need to research the equitable powers of an Orphan’s Court judge and get a grip on the details of your situation.

Can I use Small Estate Affidavit to get automobile property damage money paid to son’s estate?

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? (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 and the $200.00 would then be transferred to the PA Department of Unclaimed Property.

Can girlfriend’s family kick me out of her house?

Q: I have lived with my girlfriend for 35 years we live in a home that she owns, and she died last week. Her children will not talk to me and they want me out of the house. They have arranged for her services and no one will give me the information. I received a 30-day notice. When she was told she has cancer I took care of her and her family never even called but the minute she died they were right here at the house and going through her stuff which they say I have no claim. I want her family to get her things, but I am 64 and disabled myself and can’t move. I have no money my money was helping my girlfriend to buy her medication. (Pittsburgh, PA)

A: I am sorry for your difficulties. These situations happen frequently. Had you been married, you would be entitled to much more. I suggest talking to an attorney to review the entire situation. Relevant questions would be, did she have a will? In her will, did she provide for you? Are you sure you are not on the deed to her home? Will her family need to open an estate? Do you have a record of expenses (medicine) you paid for her prior to her death so that you can make a claim against her estate for reimbursement? Did she have any other assets, such as non-probate for which you may listed as a beneficiary? Additionally, if you are a tenant, at law, and subject to eviction, you can extend the eviction process.

Can my parent’s signed letter be considered a will upon their death?

Q: My mother is in the advanced stages of Alzheimer’s. My father has power of attorney over her. They are 85 years old. My sister and I do not live in PA. He doesn’t want to do a will. He sent me a letter in the mail which listed of all his assets and properties that are all paid off. He added in the letter that he wants me to be the executor, I get 3/4 of their estate and my sister gets a 1/4. He is afraid that everything they worked hard for will be given away (he has a lot). He insisted that I sell everything and not give it away. But he won’t get a will. Any advice will be appreciated. If I had some facts like how long it would go through probate? Meanwhile properties sit not maintained. How much will go to the state. If you don’t have a will do you pay more in death taxes or probate court? Thank you! (Alexandria, VA)

A: You need to tell him that his worst fears could be recognized by not having a will done by an experienced attorney which is in full compliance of the law. A bad will can cost his estate and heirs more money in the long run. In PA, a handwritten will, called a “holographic will” signed by the testator and witnessed by two persons who sign as witnesses, is admissible. A handwritten document signed at the end by the testator even if not witnessed by two persons is also admissible. However, in these cases, where the will is not “self-proving” through the notarization process, the witnesses themselves must come to court or their affidavits be obtained, The later instance (not witnessed) will involve a hearing in which the witnesses must be able to testify that the signature is in fact the testator’s signature and the directives in the will are in fact his testamentary wishes. It is a difficult standard to prove and the result would be that the will is inadmissible. If your father wants to give your more of the estate than the intestate laws (no will) provides, he should do a will through an attorney. If he refuses, have him write a document titled “Will”. He will need to write out to whom his property will pass and choose an Executor. Have him sign at the end, then have two witnesses sign beneath him. Make sure these witnesses are disinterested and will be available in the future to come to court or sign affidavits if needed.

I am the borrower on a vehicle loan but not the owner

Q: I am the borrower of a $21,000 Jeep loan. My ex-boyfriend passed away and he is the owner-he is on the title. Where does this leave me and how can I get paid back??  Am I able to trade in his vehicle if his mother or wife sign off on it? (Pittsburgh, PA)

A: If he is on the certificate of title to the Jeep, and you are on the bank loan, the Jeep is owned by his estate and will pass to the heirs in his will, or if no will, to his intestate heirs. It is not a good situation to be contractually bound to pay for something that you do not own. I would need to know what the facts were that led this arrangement-his bad credit and he was the principle driver? If you were the one paying for this for his benefit, hopefully the mother and wife will be agreeable and sign it over to you. If not, and they want to liquidate the vehicle, you may be able to file a claim against his estate if one is filed. I suggest a consultation with an attorney with whom you can share all the missing facts and documents.

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.