Tag Archives: probate

Is this Codicil legal?

Q: What is the probability of winning a contest to a codocil signed 2 days prior to death of a terminally ill cancer patient who is heavily medicated?  I was unaware that she was terminally ill and only found out from my Aunt Kathy (my mom’s sister) on Friday Sept. 27th. At that time my mother was being sent home from the hospital to die. I learned that she had liver cancer and a tumor in her lungs. She was given days to live. In May of 2013, my mom called me to let me know that she was working on her will and she needed some information from me. I thought nothing of this call as my husband’s parents and my stepmom and dad had also been making these arrangements. It seemed perfectly natural. She told me that Morgan (my daughter) and I were her primary beneficiaries and she told me that I would be the executor to her estate. I have a copy of my mother’s original will dated May 15th, 2013, that outlines pretty much exactly what I expected. You will also find a codicil dated September 27th, 2013 leaving her house, all contents of the house and car to Juanita Johnson. It also removes me as executor of her estate

A: This is a case that you really need to review all of the facts with an attorney. First the attorney can look at the Codicil to see if it is legally binding. Codicils are still permitted but must be executed with the same formality as a will-at least signed at the end by the testator. With the invention of word processors, hardly anyone, especially attorneys, draft Codicils anymore, which leads me to question who drafted it, and it’s legality. The attorney can also help you and advise you on how to gather information as to your mother’s state of mind at the time she executed this document. This can come from her doctor, hospital staff or other witnesses.

If there is a beneficiary listed, does the money go to the estate?

Q: What are my rights as beneficiary on deceased brother beneficiary designation form? My brother died without a will, but I am listed as one of his beneficiary on his employment form, the lawyers are stating that this goes money goes into the estate and is to be shared by everyone, is this correct? There are stock certificates, life insurance etc. that he marked and the lawyers won’t hand over the original certificates so that we can transfer them to our names. I am also one of the co-administrators. Please answer asap. Thank You.

A: I really would need to examine the documents to be certain with my advice. However, generally, if you are listed as a beneficiary on employee benefits like 401 Ks or pension or insurance, that is your money and not estate money. Generally, if you are a beneficiary, the company will prefer to talk to you and will not want to deal with the estate attorney. Call the company and ask if you are the beneficiary. They won’t lie to you. As to the other problems, estate issues, I am not sure why you are having a problem with the attorney as the executor/administrator generally can hire and fire an attorney for the estate. Maybe this is perhaps because you are not getting along with the other attorney. I highly advise you to see an independent lawyer versed in estate matters.

Is dad’s vacation house part of his estate?

Q: Dad died. His will says his vacation home should be sold and proceeds distributed evenly among four sons. Residue of estate goes to sole sister. Problem is the vacation house was sold 6 months before Dad’s death. Brothers say they should divide proceeds of sale. Sister says it is all hers? Any advice that you can offer?

A: If the house was sold before his death it is not part of the estate and the proceeds, unless gifted or assigned to someone else, should have gone to dad? If there are still proceeds in dad’s bank account from this sale, that money falls into the estate residuary and in your case goes to sister. However, I am not looking at all the facts here and you should not rely fully on this opinion. You should really let an attorney look at all of these documents to answer with certainty. In addition, since this transfer was within one-year of death, it will be subject to inheritance tax on its full value minus a $3,000.00 deduction.

How can I get a copy of my Aunt’s will?

Q: My aunt died in 1982 in Adams County, PA. I have reason to believe I may have been a beneficiary of this will, Can you tell me where I could possibly obtain a copy of the will? Are they archived, in Fulton County?

A: No one usually files a will until a person dies. If your aunt owned property in her own name of a sufficient value, and she died with a will, there is a good chance the will was filed and an estate opened in Adams County. Call or contact the county Register of Wills where she died and have them run a search, if they will do that for you-there may be a fee. They can confirm if a will was filed. As far as examining the records to see if you inherited anything, you would need to hire a lawyer in that county to copy and review the file, or go there and do it yourself. The Adam’s County Courthouse is on Baltimore Street in Gettysburg. I do not want to discourage you, but if an attorney was involved, which one usually is when an estate is filed, you would have been notified unless they did not have an address for you. The attorneys are bound by state law to notify all heirs. Secondly, even if another heir or relative took your money, you may have statute of limitation problems in bringing a claim and the money may be gone. I would investigate as much as you can on your own at first.

Mother is Florida resident, living in Pittsburgh. Do we need FLA or PA lawyer?

Q: My mother is 94 years old and is a Florida resident. She has been living with me here in Pittsburgh. Do we need to contact a lawyer in Florida or Pittsburgh?

A: It depends where she intends to reside. Normally, her estate will need to be opened in the state where she has established residency. Each state has law which defines residency. If she has property located in PA and FLA when she dies in PA, and she has residency in PA, you may have to hire an attorney in PA and he or she may have to open and estate in PA and ancillary estate in FLA. Many times, the PA lawyer will seek and hire a FLA lawyer to do the ancillary estate work in FLA. FLA has no state inheritance tax so there may be obvious advantages for her keeping property in FLA. I would consult with a lawyer in the state that you feel she will most likely have residence in when she dies.

Are my transactions on my mother’s credit card part of her estate debt?

Q: My mother gave me permission over the past 2 years to use her credit card and I have paid faithfully every month assuming  the debt as my responsibility. Just recently my mother passed away. I immediately contacted the card company and they said the debt can’t be transferred to my name, that it has to be turned into the estate. My family is up in arms and is now trying to get me for embezzlement, which my mom allowed me to use her card with her permission and she gave me the statement each month when it came in the mail for me to pay. Please help me with this matter. I know a time or two my mother has had the card company on the phone and told them that it was ok for them to talk with me about the card. But not sure if she actually had my name listed with the card company to us.

A: This isn’t the first time this has happened. If the creditor files a claim against the estate, the estate attorney can put them on notice that certain debts will not be honored by the estate as they were not your mother’s expenditures or your mother did not authorize them. The attorney can win this argument as long as he has proof, which you would assist him with, i.e., a statement from you, copies of all of the statements which show items that an older woman would not purchase, i.e. i tunes, designer jeans, concert tickets, etc. just for an example. If you acknowledge these debts and are capable of paying them , there should be no problem. If you cannot afford to pay them now, the credit card company is unlikely to separate them out from your mother’s debts. I am sure the credit card company wants the estate to be obligated as it is easier to be paid than suing you, I am assuming. I would tell the estate attorney where you stand .