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David L. Carrier’s Q&A

My father died and left a life estate to me and 3 other siblings. My brother died so now its just me and 2 other living siblings

I think it first depends on the nature of the life estate… if joint, nothing to probate and it goes to the surviving joint tenants… Consult with local counsel…

My parents have both passed away, they were divorced. Neither one left a will that I know of.

Your brother may have used the PoA to transfer assets to himself or something else may be happening… The way to find out is to open a probate estate in your mom’s name and find out… This may be difficult in your current circumstances, but consult with local attorneys to find out…

Does a trust get filed with the court or is it possible to have it changed without the trustees notice

If your mom is mentally incompetent, then she would not be able to manage the trust or serve as trustee… is that the change you’re talking about? In any event, your mom and/or her husband will (most likely) be able to change the trust however they choose and have no obligation to give notice to you or anyone else…

IS THIS LEGAL??????

You really need to consult with an attorney who can view the documents, but a few thoughts… You have no right to visit at mom’s house or have access to her telephone… No you can’t change the locaks

My grandmother left to go to. One of her appointments she did. Not. Give me permission to drive and what was my luck

Oh what a tangled web we weave, when first we practice to deceive! Honesty is the best policy. The coverup is worse than the crime. Lawyer up!

The Trust has multiple types of assets and 3 classes of shareholders which are to receive disbursements in order of class #…..

Follow the term of the trust to determine rights and responsibilities… Interpretation of the terms and conditions is generally subject to differing opinions, so the law allows the trustee to control when there is a discretionary decision…

What are the pros and cons of obtaining a Guardianship (in Michigan) for my 90 year old mother with Alzheimer’s Disease?

If mom is still competent, she should execute the necessary documents (trust, poas) to ensure that you will be the one helping and in charge. Otherwise, Probate is sort of a free for all!

In a Trust, if there are multiple classes of shareholders can there be an order in which assets are disbursed? How would it read

Trusts are great tools because they can be used in so many ways to carry out the grantor’s intent. I love ‘em! But. The first principle of trust design is KISS. Keep It Simple, Stupid! (First learned that at Fort Benning). Anyhow, the more you make your trust look like a Rube Goldberg contraption, the more like that the whole structure will take one step forward, wheeze, and fall over… KISS!

If I am contracted to get paid to care for my mom, and my pay is suspended, does that not mean my contract is suspended?

You really do need to have a local elder law attorney review the facts here so that you can get back on track as soon as possible. Too often, when issues are on appeal, families do nothing, “waiting” on the appeal results. This is a mistake. You should actively and aggressively pursue recertification.

If I left a device under the care of someone and his mother took it, how does one go about taking legal action against them?

This is the sort of gray area case at which small claims court excels… Get the forms from the local trial court, fill ‘em out, and let ‘er rip!

A lady in Texas for 10 years for Sun devoured all of her money exploited her financially she’s gone bankrupt what can be done to

I’m confused… are we talking about a situation where the son exploited mom for 10 years? There may be civil liability for him, or criminal liability; Maybe he could be pursued for elder abuse, breach of fiduciary duty, theft, larceny by trick…. possibilities that can only be sorted out by your local attorney…

NY state – Elder fraud and abuse, what is the statute of limitations?

As everyone else has said, it depends on what you’re going for: civil vs criminal liability and What the nature of the problem is: breach of trust, theft, etc… Guess what! You need a lawyer to help sort this out…

I am looking to hire a lawyer to set up a revoke able trust for my mothers house and to file a Medicaid ap.

Hie thee to an elder law attorney stat! What do you care about the “average cost”? Do you want “average” results? Average results = mom is broke and the state has a lien on the house. Assess the elder law attorney, fine! But if you base your decision on cost, you deserve the financial ruin you’re courting… Do you think this stuff is easy? Do you think the fact that the nursing home will “do” the application for “free” is a good deal? Jeepers!!

I got medicaid in september 2014 but it seems I have made over 16 000 this year after all. What should I do?

Going forward: In some states, you can assign the income to what is called a “Miller Trust” that will reduce your income to allowable limits. In my own state of Michigan, this option is not available. Consult with a local elder law attorney to be sure. With regard to this year, what’s done is done and you’ll have to bear the consequences… your elder law attorney should be able to help you mitigate the problems… Don’t count on “them” not finding out… they will!

Why would one have a living trust and then also a child child trust fund?

If auntie want to leave $$ for your kid independently of what you chose, it would be natural for her to provide a trust for your daughter. This would focus the benefits solely on your child, even while you are alive, and would not be available to you.

Is it a requirement that beneficiaries are to be notified that they are listed in the will prior to probate

In Michigan, at least, beneficiaries are “interested persons” and must be given notice from the very beginning of the process, when the personal representative is appointed. I’m not familiar with any state where this is not the case and I have a hard time believing that there is any state that does not require notice…

Can I get sued over utilities?

What would Judge Judy do? The problem with small claims court is that, while you may have a valid legal defense, the judge often tries to do “what is right.” And that may mean that even though this agreement is not legally binding because it does not satisfy the Statute of Frauds, the judge might find for the roommates. I wouldn’t roll over on this, I think you should go to court…

Hi i live in Tacoma wa. And was wondering if my husbands grandmother left him things in her will and he ended up passing Aftern

Agreed that you are entitled as spouse, my question is whether your husband was entitled to anything from the will… In many (most/all?) states, if an heir/devisee dies within 5 days of the death of the giver, the heir is deemed to have died first. Frequently this is modified in wills and trusts, sometimes to as much as 90 or 180 days… So that’s where I’d be curious… How long did your husband survive his mother?

Question: Is sibling caregiver of parent legally entitled to compensation? My brother and sister insist I receive nothing.

In Michigan, at least, in the absence of a contemporaneous, written agreement, the services provided by a relative of the first degree are conclusively presumed gratuitous. So, thank you very much, but no money for you! In Michigan, at least….

If no will and 3 siblings Do any of us have right to move in house without consent of all

Go to probate court. Get appointed PR. Evict sister.

Transfer of property out of revocable living trust

Agree that you HAVE to see the document before expressing an authoritative opinion, but if the trust was truly revocable, the grantor retains the ability to change things around and transfer the property…

Living rights if in nursing home

If the personal property does not belong to the grandmother, then it can be sold by whoever owns it now… sounds like the grandson as heir of the son whose mother has the life estate… If daughter is co-heir to the father’s personal property, then she could/should open probate on dad’s estate to protect the personal property. Regarding the real estate, son could act to protect his remainder interest, but daughter (his sister, I guess) would not have such rights…. This is a good example of…

Eldery in living assistant

I have to agree that this is the sort of question to which it is difficult to offer any advice that would be both helpful and pithy… Concur that you need someone who can hear all the details.

Deceased brother. He had a bank account, under 1700 and an old truck, paid for, nothing else. How do I get the money and truck?

Depends on Show-me State law, but I gotta believe it’s not going to be much more than going to the local DMV with a death certificate and to the bank with either an affidavit or summary court order… Get a free local consult & find out… remember, too, even if the attorney costs $500 or so, you’re still $$ ahead…

Do I need a Real Estate Attorney for my half benefeciary to my father estate? My brother wants me to sign him over my part.

You definitely need a probate/elder law attorney who can explain to you what the current is and what

Death and probate

Wife is still next of kin, but maybe the incarceration means she’s not legally competent… Best bet is to consult with local probate counsel…

My husband passed away in July. Our car was in both our names. How do I renew the registration?

Just take the death certificate with you when you go to renew at the DMV (or PA equivalent) and you’ll be able to transfer the title to your own name only…

Does the phrase disposable property in a will include the house

I’m so glad there’s a Louisiana attorney here to answer this question!

Can an enhanced life estate deed be used if you are only half owner in the property

When the deed doesn’t specify joint tenants, you are tenants in common (probably, got to see the deed) and you can certainly use a transfer on death/enhanced life estate/ladybird deed to get your share to your son…

How to get a tax id number for a trust.

The IRS website has a very simple procedure… For a first timer, I’d bet it wouldn’t take more than 15-20 minutes. If you know what you’re doing… 2-3 minutes…

I hv need for an Irrevocable Trust. What are the reasons one might hv for choosing a “Boulder Family”Irrevocable Trust”,Settlor

We use irrevocable trusts extensively, but not for tax purposes. For 99.98% of the population, no irrevocable trust is useful or necessary for tax planning purposes. The situation is reversed when talking about elder law/Medicaid planning…

Probate + Last Will and Testament — combined with Community Property Agreement and IRA beneficiaries upon death.

Without answering your questions, I would observe that this sort of convoluted planning frequently leads to dissension, anger, and litigation. Why not both of you go to a competent, experienced elder law estate planning attorney who can figure out exactly what it is you want and so can provide solutions that actually have a chance in hell of working?

Can you obtain an early release from prison to take care of an elderly parent?

Seems unlikely that she was released without a monitor or parole requirements if she was released to care for “elderly mom.” Have to review the records (as usual!)…

As the administrator for my dads estate, How can I get my mom to quit harassing me about my dads estate?

You really can’t. If mom wants to be a jerk, she gets to be one…

Does nursing home owe a refund of the trust fund when a resident is discharged? Does it include the SSI check?

This smells like a Medicaid case to me, where the income goes into the trust fund to pay the patient pay amount. If so, no refund will be available, because the entire patient pay amount is due when Medicaid pays for any portion of the month… Consult with local elder law counsel with the particular facts…

Should I sign for inheritance money before it is received?

Agree with Shelley, we always (almost) get the releases and receipts before sending out the $$. But be sure you’re sending it to the right attorney…

Does financial & medical power of attorney obligate you to pay any outstanding medical fee’s or bill’s for a parent?

Agree that having a POA generally does not expose you to personal liability, but that can depend on the particular facts of the case… Also, many states have filial responsibility laws that explicitly make the kids liable for the parents’ bills (Pennsylvania for example) and these laws, while usually not enforced, may be… The tragedy of this question is the could-have-beens; if only your folks had done proper estate/elder law planning, they wouldn’t have seen their life savings evaporate…

What should a guardian of a disabled adult do if a heath care facility isn’t complying with the court order?

Certainly you’ll attract more flies with honey than vinegar, but when the honey doesn’t work, you’ve got to go to the mattresses… Experienced counsel will help you thread the needle between being a patsy and an obnoxious jerk… I should say, however, that failing to provide medical records, privacy, and interfering with a patient’s relationship with their guardian, seem like obnoxiously jerky things to do, and you may have to push back strongly to establish a healthy balance. Sometimes…

My mother and father own a home with both on the Deed. I am the POA.

As has been said, your powers under a power of attorney are defined in that particular document… However, it would be an unusual power of attorney that would not allow the attorney-in-fact (that’s you) to complete a real estate transaction… I don’t think that’s the biggest problem you’ve got though, because once dad is in the nursing home, Medicaid is not far behind, and how you handle the sale and disposition of the sale proceeds can have DRASTIC (all caps and deservedly so) consequences…

How do I transfer guardianship of my elderly father from Wash state to Tennessee

When you’ve got a contentious situation, as you apparently do, experienced counsel is your best friend… I’m curious why the transfer issue was not covered when you were “fight”ing your brother in law for guardianship… If there really was a serious fight, you may have to go through it all over again on the transfer issue.

When can I disperse funds from a willed death

You can make an interim distribution now, but I’d suggest holding sufficient assets in reserve to pay any potential tax or other liabilities… Also IMHO don’t make any distributions without receiving a receipt and a comprehensive release from ALL beneficiaries before making an distribution to ANY beneficiary. Ask your probate attorney how you are protected from disgruntled beneficiaries after the fact…

Is it acceptable to express a concern to an attorney that could open a can of worms?

All concerns are legitimate… Attorney Client Privilege exists so that clients may tell their attorneys about all can-of-worms opening issues without worry….

Is there a look back period for receiving non-institutional Medicaid Medically Needy assistance?

Pay doesn’t count in the month received, but next month, it will count as an asset. It’s a good idea to explore the availability of Medicaid benefits for your medical bills, since unpaid bills attract bill collectors like blood in the water attracts sharks… Payment of debts is not divestment and will not create a penalty, BUT, documentation of the debt must be by the rules… In short, an in person consultation is critical!

Can I hold on to some money for my mother?

Don’t do it!! Put a deposit down on the mobile home or buy a funeral or do something else, but as the other attorneys have said, the path to hell is paved with good intentions and the path to prison is paved with hiding $$ from the state

I purchased my fathers home for fair market value, I paid him his equity. can he spend that money as he sees fit.

Setting the house transaction aside, I think it is clear that what you mean by “ather helped me with the money I gave him from the sale of of the home” is that your dad gave you some money… and that’s going to be a divestment and that’s going to cause a penalty period for him…

Can my father keep me from seeing my mother in the hospital?

If your dad is your mother’s guardian, he can control access to her… if he is abusing his authority, he can be ordered by the probate court to allow the visitation…

Can a 2 year old is get charge for rent money

Sure why not? Possibly you are not eligible for residential assistance, but your child is… Not sure what the deal is in KY, but talk to local counsel to be sure…

How do I evict a Mentally Ill Loved one?

Agree that you need to call Adult Protective Services, there are services available. Of course, if your brother is competent and is not viewed as a threat to himself or others, he may well wind up on the street…

Does long term care insurance count as income in the test for Medicaid eligibility?

To make the penalty period run, the applicant has to be “otherwise eligible” for Medicaid benefits, and there must be a current “unmet medical need”. Consult with a local elder law attorney who does NOT tell you to wait until the money runs out to do something…

How to apply for Medicaid (Health coverage only) for recent elderly immigrant that is over 65 years old?

In Michigan, at least, you’d head over to the local Department of Human Services agency… I don’t know what they call it in Missouri… Why not take a free consultation with a local elder law attorney to find out?

I would like to know if there is a way to find out if someone has used my father in laws life insurance as collateral on a loan?

If father in law is still alive and competent, ask him! If not, you may have to petition the probate court to be appointed conservator to get access to his financial information… Also, ask a lawyer!

How to pay for special needs  trust disbursement for gas, food and hotel etc.

Agree with James that receipts to support reimbursement are extremely important; I wouldn’t worry so much about paying for food, though… the concern is whether the trust becomes a support trust and I can’t see how a few restaurant meals could turn a discretionary trust into a support trust… also the Michigan Trust Code is pretty clear on these things…. Consult with local counsel!

How is debt handled going through probate in MI , including a mortgage that is on her cottage that wants to be kept by kids?

Since a will is instructions to probate court, having a will would just mean that your mom’s estate is going through probate. Also if you keep the mortgage current, the bank can’t foreclose. Also, your mom’s assets will answer for her debts. Also if one of the siblings wants to give up (disclaim) their interest in the estate, that’s fine (more for the rest of us!). Also, you need to consult with local probate counsel to sort this out…

Personal representative of mother’s estate (willed as equally split) is paying some beneficiaries and not others: what can I do?

This is terrible… Remember that the circle of Hell closest to the Great Satan is a frozen lake and the unfortunate souls frozen in that lake, whose faces are pecked constantly by demons and whose tears are instantly frozen to ice and blown away from the wind that comes from Satan’s bat-wings are those who have betrayed their families… It is no consolation to consider that the wages of the PR’s perfidy is eternal torment, but the wheels of justice grind exceeding fine….

As personal rep can I set aside money from the estate to pay for permanent care of the decedent’s pets?

You will definitely get pushback and I’d definitely get the court’s blessing before setting the $$$ aside, but I’d also definitely propose an “Agreement to Alter Shares” first to carry out this honorable intent… Go For It!! (With advice of counsel, of course!)

Does a POA give a person the right sell a living persons household belongings without giving an accounting to other heirs?

Generally, the attorney-in-fact acting pursuant to a written power of attorney has no obligation to report to siblings or third parties and, in fact, is probably violating the confidentiality of the father if she does report his affairs to you…

I need help with uncooperative sister who cares for my mom

Agree that investigation by adult protective services is not a bad idea, but you should also consider guardianship/conservatorship to get control over your mom and her circumstances… Consult with local counsel!

Am I responsible for my mother?

Some states have filial responsibility laws that make the kids responsible financially for the parents… I would not be surprised to learn that MOST state have such laws on the books, but enforcement is rare…

Someone claimed bankruptcy in my name can i sue her? Identity Theft Prevention Act,”pls read details thank you very much

Get a lawyer and sue sue sue! This is terrible, but you need Kentucky counsel to figure out the exact remedy…. go get ‘em!

How do I protect an 88 year old woman’s right to say NO to a POA?

I think last week’s answer still suffices… don’t be afraid to go to court to get that poa set aside…

Michigan – Estate Law. My uncle is the Executor an estate with a Pour Over Will. His attorney came up with a release document..

1. Requesting releases before disbursing funds is a sound and prudent practice upon which I always insist,because I don’t want to find out 3 weeks after disbursing funds that some beneficiary has an objection. 2. The Protective Order is issued by the probate court upon solicitation by the personal representative to force beneficiaries to make their complaints NOW or forever hold their peace… 3. Beneficiaries always have the opportunity to be heard. 4. Pay the investigator to find out what’…

My father has moved in with my family. Can he qualify for Medicaid, or do they include the whole households income?

Medicaid generally looks to the applicant’s income and assets when determining eligibility. BUT sometimes (married couples/parents w/ dependent children) the couple is viewed as an Asset Control Group or Fiscal Group and now the assets/ income of the other will count… The best advice is always to consult with local counsel… counsel who can tell you how many applications they filed last month and what is their success rate in getting applications approved…

My father will be applying for Idaho Medicaid next month. I’d like to buy his house from him. What should I do?

Q: What should I do? A: Talk to someone who knows what they’re doing in elder law. This is probably the worst thing you can do, since you’re converting an exempt asset into a countable assets. But, it may make sense depending on your options for preserving cash vs enhanced estate recovery in ID… Rethink this one!

Can your roommate withhold your medication for money

Well that sucks… I think the medications would be treated differently than the other stuff

In MASS. is it necessary for someone entering a nursing home to sign over her assets to the home?

Consult with a local elder law attorney who specializes in forward planning, who is not afraid of medicaid divestment trust planning and who understands that if you don’t plan ahead, AND you need MassHealth, the Commonwealth will put a lien on your house, cottage or cabin and it’ll be gone after you are… Or you can do nothing and go broke…

I have a in house doctor and nursepractioner come in my home take care of my bed ridden mom she’s had a uti infection for month

I hope that by now, your mom has received the care she needed… The next time (and there will probably be a next time) dial 911 right away, don’t wait until your mom has had days of unnecessary suffering. I’d also consult with an elder law attorney regarding your mom’s care options…

What can be done?

This sounds like a law school final exam question, but rather than fill the equivalent fo three “blue books” (do they use blue books anymore?) I would suggest that he consult with an elder law attorney immediately if he is still competent. If he is not, get the same attorney to petition the probate court for guardianship/conservatorship… you need some fire power here. In Michigan, the wife (separation doesn’t count) would have priority, so get to court….

Real estate (home) transferred out of Mom’s name. How long before it won’t count against us to become Medicaid eligible?

Agree with everyone who said 60 months! But I’d also say that it’s not that the house doesn’t count, it’s that there would be no divestment penalty period. My rule is always, Don’t Apply ‘Til You Qualify! So have the case reviewed by local elder law counsel before you submit the application. This Medicaid stuff is fraught with peril for the unwary!

How long do does my elderly father who is living with me and I’m taking care of him to become a legal resident of KY?

Larry’s right, as soon as your dad moves in and intends to stay, he’s a resident. Some states (like Michigan) also pay lip service to “domicile” which is the intent to permanently remain, but that’s not part of the residency thing…

I married an elderly man they are trying to charge me with exploitation if they proof him incompetent can they still charge me ?

My answer is the same as it was before, in your last posting of this question, but hey! bonus points! Whee!

I married an elderly man they are trying to charge me with exploitation if they proof him incompetent can they still charge me ?

If your husband was competent, then he can support you and the two of you can use your marital resources however you choose. But you have to understand that the law enforcement arms of government are not unfamiliar with the “gold-digger” scenario in which the significantly younger and financially weaker woman marries the old rich guy… I’m not sayin’, I’m just sayin’ In any event the truth will out and it always bears repeating the the innermost circle of hell, where the lost souls lie…

My 55 yr old niece is on SSD. She has $15,000 + – in a 401K. Can she access her money without losing her SSD?

Social Security Disability is not means-tested… there’s no financial requirement. If your niece were also on SSI Supplemental Security Income, then you’d have a problem…

Wouldnt it be a conflict if the mother of the victim is also the mother of the perpetrator? They are half siblings.

You need to consult with local counsel because this is waaay beyond the scope of this website….

If I am going to apply for Medi-Cal and own my home, will filing a homestead affect my eligibility?

In Michigan, it wouldn’t matter, because the declaration of homestead (Affidavit of Principal Residence, here) is merely to reduce your annual property taxes. Consult a local elder law attorney for your California mileage…

Excessive fees charged for a delinquency

Depends on the services for which the legal fees were charged. Was mom sued and a judgment entered against her? I don’t know… the fees might be reasonable or excessive… without more information, you can’t tell…

Charity chief executive cultivated friendship with wealthy 87 yrs old woman donor of the charity and now assets will be hers.

This is a terrible, awful, no good, very bad situation… What the CEO did was reprehensible and should be stopped; on the other hand, if the donor is mentally competent, she has the authority to do whatever she wants with her money.

Will a gift of equity when buying her house affect my grandmothers Medicaid benefits?

(In Michigan, at least): Divestment = transfer of a resource for less than Fair Market Value. A gift of equity, by definition, means that the property is being sold for less than fair market value and in Michigan, at least, the amount of the gift would be a divestment that would create a penalty period that would begin when grandmother is broke and in the nursing home… at that point Medicaid would not pay until the penalty period was over. So… don’t do it unless you’ve got written guidance…

My mother died in a nursing home and was on Medicaid , how can I cash a refund check from her apartment

Consult with a Wisconsin attorney, of course, but in Michigan, small amounts of money are not recoverable by the state due to the family allowance. There’s usually a small estate procedure…

Will MedicAid allow us to use our in-home care ins. policy to supplement the care we receive in our AFH once we are on MedicAid?

In Michigan, at least, the Department of Community Health will take the proceeds from any LTC insurance policy when the person is on Medicaid.

Husband died with no will. Do I automatically inherit anything he owns? All debts?

If the house was owned by husband and girlfriend as joint tenants with rights of survivorship, the girlfriend now owns the house. You do not owe the debts, though…

As a beneficiary named in my mother’s will, do I have a right to a copy of the will?

#1 Consult with local counsel #2 Petition probate court to order brother to produce the will #3 See what happens next!

Do any of u probate wills I need to have my husbands will probated and then I would like to sell

Yes, you do need to get your husband’s will probated. So do it. This is a good first step, screen local attorneys then go visit one and get this done….

Probate in WA. PR and other beneficiaries owe the estate over 500k in debt. Loans from decedent who’salso father. Best Approach?

Putting “LOAN” in the memo section of a check does not create a promissory note, but it might be evidence that a fiduciary (attorney in fact under the power of attorney) was authorized to take the funds… Lots of facts here that would support lots of speculation, so I’d suggest a consultation with a local attorney who can ferret out what is really going on here….

My sisters husband passed away recently and left her with credit card debt that was in his name only. Is she responsible.

Not responsible for his debt, but if she wants to keep his house, all she has to do is to continue making the payments called for by the HELOC…

Our mother passed away last December. She left a trust with assets divided six equal ways. Two brothers are trustees.

Trustees are given wide discretion/latitude/freedom to act in carrying out the trust provisions. The flip side of this great power is (did you see this coming?) great responsibility to be true to the trust and to deal with the trust assets faithfully. Why is the trustee contesting the real estate (and what does that really mean)? When trustees don’t live up to their obligations, going to court is the remedy and you should take it sooner rather than later. “If ’twere done when ’tis done, ‘…

What kind of fees or taxes have to be paid on a estate home that was willed to a trust

As a beneficiary, you have a right to this information and if it is not forthcoming (as it is not) I’d suggest consulting with an attorney with a reputation for assertive action. Of course there are transaction costs, etc, that will need to be paid, but there is no excuse to withhold the closing documents after demand.

Does Georgia have laws to protect the elderly who may have dementia or are just too trusting?

Q: Does Georgia have laws to protect the elderly who may have dementia or are just too trusting, such that a person older that a certain age cannot sign over their property to a relative that they trust without the regular signover process invoking a special state procedure designed to protect the elderly? A: I am not aware of any state that treats persons of a particular age as legally incompetent. Funny thing about “special state procedures designed to protect” persons based on immutable…

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