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Recent Trust and Estate Advice

    My mother has dementia and is in assisted living. Her home is in a revocable trust and family wants to sell it to nephew on contract for way below market value. Is this legal?
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    David T. , Elder Law Attorney answers:
    No - Must be fair market value.

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    My ex husband has some land, he has three kids, and one of them is taking everything. how do i protect the other two
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    Margy C. , Geriatric Care Manager answers:
    This is Kelly Saunders with Guardian & Conservator Services, Inc. in SLC. My suggestion would be to contact an elder law attorney because this is really a legal matter as it relates to one’s capacity to make decisions about their estate. A good attorney here in SLC is Scott Hansen at 801-746-6300. He or a partner in his firm may be able to help answer your questions. I hope you find this information useful. Respectfully, Kelly

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    Three grown daughters who live in Texas were told by their 83 yr old father on his deathbed in state of Washington that they were in his will and would receive a substantial amt of stocks and bonds to be divided among the 3 of them when he passed away. He died about 3 months ago, had told one of his daughters that he updated his will (a little over a yr ago). His 2 step daughters and one son in law have produced a will with Right of Survivorship that was made in 1990 and says he never updated it. It leaves everything to the 3 daughters' should step mom and upon her death any remaining money is to be divided 50% to her 2 daughters and 50% to his 3 daughters. Daughters can't find any copies of will he said he updated in 2015. He gave specific amts that would be split between his 3 daughters only, a week before he died-$100s of $1000s of stocks. In state of Washington will does not have to go to probate so nothing is on file. The father told his 3 girls on multiple occasions that his step son in law, who was his financial adviser was the executor of his will and had his Power of Attry. Son in law denies being executor or having power of atty. Stepmom is buying her daughters first class airfares and spending a lot of money. Does his daughters have the right to get an accounting of how much their Dad's estate was and how much has been spent out of it? Rt of survivorship transferred all his assets to his wife (their stepmom) and at current rate of spending there probably won't be any funds left when she dies. Since they can't find updated will, or they at least entitled to how much was there when he died a few months ago? Is it illegal for an investment advisor to have Power of Atty and be executor of his will? They r liquidating his assets (car, truck, RV, property).
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    Debbie S. , Geriatric Care Manager answers:
    Daughters need to secure a consult with an elder care attorney in Washington In the county he lived in

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    My parents are getting older, and I was wondering how they can safely put their assets in a trust where, when something unexpected happens, the assets they own will be safely transferred to the children without being taxed by the government etc.?
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    Marie C. , answers:
    This is a question that requires a full review of the pertinent facts- of which there are many. Frequently however, an Medicaid Asset Protect Trust is a solution - but I do recommend that you and your parent have a consultation with an experienced Elder Law Attorney- many offer complimentary consultations. You may learn much more than you imagine.
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    Elisha W. , Elder Law Attorney answers:
    If your parents own less that $4,178,500, they their estate will pass to their heirs tax free from state or federal. To protect their assets from crediotrs and from the costs of Long Term Care (i.e. Medicaid) then a properly drafted Medicaid Asset Trust would offer that protection while insuring that the beneficiaries receive the property tax free with a step up in basis.
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    Ronald F. , Elder Law Attorney answers:
    If your parents live in NY and own less than $4,178,500, they will not owe any estate taxes. The bigger issue is paying for long term care. They can protect their assets and be eligible for Medicaid to cover their long term care expenses if they transfer their assets to a specially drafted irrevocable trust.

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    My boss passed away and left money to several people in a trust and his wife has not given anyone their money and will not accept phone calls. What to do?
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    Jane A B. , Elder Law Attorney answers:
    In general, people who are named as beneficiaries in a Trust are entitled to a copy of the Trust document and information regarding the assets of the Trust and progress of administration. If the Trustee is not providing information that is required by the law, then the Probate Court in the County where the Trustee resides or where the deceased person last lived would have authority to hear a complaint and enforce the law. This is general information and not specific legal advice. If you have further questions, you should contact an attorney to review your particular situation and provide you with guidance.

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    Can my Mom who put the house in an irrevocable trust change me to be the beneficiary of that trust?
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    Charles K. , Elder Law Attorney answers:
    An irrevocable trust can be amended, but not easily. There are at least two possible methods: by filing an application with a District or Statutory Probate Court depending on the county in which the Trustee resides or secondly by "decanting" to a different trust. Decanting or moving the assets of one trust to a second trust requires following specific steps according to a Texas law. All beneficiaries must be given notice. The language of the existing trust determines whether the transfer can be done without consent of the Trust Settlor (person who funded the trust) and beneficiaries.
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    Steven K. , Elder Law Attorney answers:
    If it is truly an irrevocable trust, that means it cannot be changed, so the beneficiary cannot be changed. Sometimes trust instruments provide certain powers, called powers of appointment, that allow certain individuals the power to change the beneficiary at certain times or in certain events. The trust instrument would need to be reviewed to determine if such a power exists.

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    My sister owners a mobile home and in her name and she put it into a trust. The trust is my fathers and she is trustee. Is she responsable for that property or the trust
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    Celeste R. , Geriatric Care Manager answers:
    Are you asking is she responsible for the property financially? No. If she is currently living there, she is responsible for keeping the mobile home in safe and saleable condition.
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    Alice T. , Elder Law Attorney answers:
    A trust is like a book - you have to read it to know who is responsible for what. You should consult with an elder law attorney in New Hampshire.
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    Frank B. , Geriatric Care Manager answers:
    Hi, I do not know the details or language of the trust. The answer should be in the language of the trust. Why was it placed in a trust? Was it for financial reasons or did your sister need help? I am assuming that your sister would be responsible for the mobile home until certain criteria are met in the trust. At that point your father would be responsible. The language in the trust should guide you. I hope that is helpful. Thank you

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    I have power of attorney for my father and will be the executor of his estate. Is it a good idea for me to move some of his liquid assets into my name before he passes to avoid probate? my brother and I are the only airs and his will and I am sure it will not be contested.
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    John B. , Elder Law Attorney answers:
    Thank you for your question. The answer is a little complicated. In sum, you can transfer (ie. make gifts) to you and your sibling of your father's assets before he passes (Pro: no probate on those assets upon your father's death). However, potential cons would be the possible implications of gift taxes, capital gains taxes upon the eventual sale of real estate and Medicaid disqualification should your father ever need nursing home care. There are other ways to pass on your father's assets free of probate which to not have any of the above problems. A living trust agreement is a very common method for example. In addition, proper estate planning could also protect your father's assets from a forced Medicaid spend down in the event that he should need long-term care placement in the future. I would recommend consulting with an elder law attorney before you start the process of gifting assets out of your father's estate.

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    how soon can i expect a check from our house escrow which closed 6 days ago?
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    Linda S. , Nurse and Care Manager answers:
    Exector diperses funds after receiving court's permission, requires a court order. Escrow close - should receive a check on the same day as closing.
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    Denise R. , Geriatric Care Manager answers:
    I would call the escrow company and ask this question.

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    My sister sold the house she occupied with my mother which was paid for largely by my father's estate. It was agreed that my mother live there and be cared for by my sister, until she died. My sister did not keep my mother in her home. Since the sale of the home, my sister has moved to South Carolina six months ago, which was kept secret until now. Do I have any recourse in recovery of any part of the estate?
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    Alan C. , answers:
    If parties are in NJ we can sue to recover what you lost. call us

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    My mother has been the caregiver for my disabled brother. He is 45 years old and never worked and refuses to even pay utilities on one of two condos which they both lived in together. It is unlivable and pipes just busted. I have POA of my mom now. I am attempting to get one condo fit for sale that is now empty after a year of him allowing it to be equated on. Now he wants to squat in it since its unlivable and he is now tearing it up. He thinks he's entitled to her DIC pension since he was deemed a helpless child. He gets his own Medicare and Pension from my stepfather who passed before he was 18 and adopted him. He is a menance and is keeping me from doing anything to preserve my mothers estate. I am too kind hearted I guess because I haven't already called and had him put into a mental facility but he was already put in one he says because of stress when I took my mom. APS had been called on him because he was neglecting my mother. The facility allowed him to come back to his home because they thought he would follow up with his psychiatrist. However, his psychiatrist keeps giving him Suboxone drugs that he has no need for and that facility already had got him clean. He's a schizophrenic with assburgers
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    Deborah K. , Elder Law Attorney answers:
    May want to try the CREA program. Call family safety center and apply-901-222-4400

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    MY SISTER IS REMOVING ITEMS OUT OF THE ESTATE TO A LOCKER WITHOUT MY KNOWLEDGE OR PERMISSION AS EXECUTOR, THERE WAS NOTHING SPECIFIC IN MOTHERS WILL, SO SHE SAYS ESTATE ITEMS ARE HER PERSONAL ITEMS AND ARE NOT
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    Melody M. , Senior Issues Advisor answers:
    Have you been confirmed by the Orphan's Court as the Executor of your mother's will? If so then you should immediately contact your lawyer. You can file a petition with the orphan's court or possibly a theft charge with the police.
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    Denise V. , Geriatric Care Manager answers:
    Hello, if you do not have an attorney, you need to hire one to act on your behalf. The attorney who drew up the Estate Planning document should also be contacted by you. As the executor, you are obligated to handle the removal, clean out, and financial issues on your deceased mother's behalf. Your sister should not be doing anything that she is and your attorney should contact her immediately to let her know how this all works.

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    My aunt conveyed a Trustee's Deed to her nephew and his girlfriend. This was done under the verbal agreement that they would make monthly payments to her. She also did this because she owns other properties and was not able to afford all the property taxes. However, low and behold there have been no payments made, and her nephew has stated that he doesnt have to pay anything because technically the property is his. Is there any way my aunt can go about regaining ownership to this property, or is she out of luck for trying to ultimately help family out?
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    Donna J. , Elder Law Attorney answers:
    Did the nephew sign a note and mortgage? The Aunt may need to file Quiet Title Lawsuit.
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    Richard W. , answers:
    I'm sorry that your aunt is having these issues. Much depends upon the deed that was given to the nephew and when this occurred. It may be a costly matter to resolve but may be worth it depending on the amounts involved. Much more information would be needed including dates, information about your aunt's competency, whether there are email or other written acknowledgements. In addition, it may be a good idea for your aunt to review her documents to see that all is in order.

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    My Dad setup a Intentionally Defective Grantor Irrevocable Trust prior to his death and made his children the trustees and beneficiaries. The trust was setup to benefit us and future generations and there is a substantial amount of stock in the account. However, my brother and sister have inherited money from their spouses side of the family do not have a need or desire to use any of the money in the trust. When I ask about setting up a distribution I am looked upon as a greedy sibling. We are all in our 40s married with children and I want to use some of the money to better my life, retire early as my Dad told me I would be able to do before he died. Is there standard guidelines for setting up a distribution for irrevocable family trusts? The trust owns all the family property and wealth (stock primarily) so all the inheritance is tied up in the trust.
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    Rose Z. , Family Counselor Mediator answers:
    I would need to see the trust in order to answer your question. In general, there are statutes that govern some distributions, but the trust document itself is the controlling authority. In general, you have to act as a reasonably prudent person.
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    Daniel K. , Elder Law Attorney answers:
    Unfortunately I can't answer your question without seeing the trust--each trust is created with its own terms and conditions for use and distributions of income and principal. If you wish, give us a call and schedule a time when we can get together and I can review the trust. -303 651 9330. Dan Kapsak
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    Richard H. , Elder Law Attorney answers:
    It's impossible to answer any questions about a trust without seeing it. Especially an irrevocable trust. No attorney worth his or her salt will attempt to do so otherwise. You simply have to schedule a time with an attorney to have everything reviewed in a closed-door meeting. Honestly, there is just no other proper way to do it. If you are so inclined to follow my advice, feel free to call my assistant, Sheila, at 303. 409. 3563 to schedule a meeting time.
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    Carl G. , Elder Law Attorney answers:
    Unfortunately, there are no standard guidelines for setting up distributions out of an irrevocable family trust. The first thing to do is review the terms of the trust document. There will be provisions regarding when distribution must be made (mandatory distributions). It may also contain provisions as to when assets may be distributed (discretionary distributions). Often the Trustee(s) may have a great deal of discretionary authority. If this is the case, it may be difficult to require a distribution be made to you. If the trust requires mandatory distributions, and those have not been made, you can seek court involvement if the Trustee(s) refuse. However, it may also be possible to remove a trustee. Those are all provisions which should be reviewed carefully. Much depends upon the terms contained in the trust, as well as the Trustee's willingness to work with the beneficiaries.

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    For seven months I along with other family members received documents from a law firm saying we were "Heirs at Law" regarding an estate that belonged to my Mother's sister's daughter. I received about 10 documents claiming I was an "Heir at Law". I just received the final documents and now it says I was a "potential" heir at law and instead of the estate being split between 12 heirs it was all going to two sisters. Form CGS-46-439. Shouldn't they have known this was the case right from the beginning instead of seven months later?
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    Joseph M. , Elder Law Attorney answers:
    Yes, it sounds frustrating, but there are notice requirements, sometimes down to a 2nd level of heirship, which in this case is you. I am assuming that your mother's sister is deceased. If the decedent did not have any children, or siblings, and her parents are deceased, then in California the legal heirs would be any living Aunts or Uncles. The Legal Heir designation stops once the class is found, and distributed equally among the class. If there were no Aunts or Uncles living, then it would fall down to the Cousin level. Still, there are notice requirements that may have required you to be notified. When this happens, I try to explain in a cover letter that this does not mean you may be actuall entitled to an inheritance, or be deemed to be a real legal heir. Hope this makes sense. Joe McHugh

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    If my home is in a NYS trust are the contents of my home also part of the trust or my estate
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    David Z. , Elder Law Attorney answers:
    no - in new York personal property must be transferred to the trust by assignment and it must describe the property with "particularity"

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    My parents have an irrevocable trust. My father wants to be a coborrower on a mortgage with me. How will this affect him? The lender is calling him a nonoccupying coborrower. They are having us sign some sort of beneficiary form at closing to protect both of us. It involves an attorney. They claim that he can't sign the papers as a trust. I want to be sure this won't be a disadvantage to my parents. We live in St Louis Mo
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    Nancy L. , Elder Law Attorney answers:
    You need to seek legal counsel in St Louis as the laws in Illinois where I primarily practice are different. Sorry I am not in a position to give such indepth advise in Missouri and in this format. Check for a member of the Missouri National Academy of Elder Law Attorneys with a St Louis office on line to address this matter.
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    Leonard B. , Elder Law Attorney answers:
    Although your father can personally guaranty your loan - which I do not recommend, I do not believe that he can pledge the assets of his irrev tr as collateral - that would give him access to principal & lose Medicaid protection
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    Kristi V. , Elder Law Attorney answers:
    My best advice to you is have your father schedule an appointment with the irrevocable trust drafting attorney, and ask that attorney this question. The answer to your question depends upon the language of his trust and the purpose of his trust. If the trust was created as an asset preservation device, then yes, what you are asking him to do could effect the trust's protection of those assets.

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    My mom made my sister a co-trustee during her lifetime, not a successor trustee to her revocable trust. How does this affect the beneficiaries?
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    Joseph M. , Elder Law Attorney answers:
    The answer may depend on the language in the Trust, but I will make an assumption that when Mom dies, your sister now remains as the acting Trustee. Her responsibilities now will be to pay final obligations, then distribute the trust estate according to the terms of the Trust. So, it is really just semantics that she is the primary trustee rather than being called a successor trustee. What ever term we use, she is an Acting Trustee, and has a Fiduciary Duty to act in the best interests of the Beneficiaries among other duties.
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    Martha P. , Elder Law Attorney answers:
    Naming a co-trustee has no affect on the beneficiaries. It may be difficult to find a bank willing to accept an account requiring two signatures

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    What paperwork do I file so my siblings can sign over their share of a home
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    Robert S. , Elder Law Attorney answers:
    To transfer ownership in real estate one needs to prepare and execute a new deed to the property. Not knowing anything about the circumstances there may be negative tax or Medicaid consequences that are affected by the transfer.

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    Having power of attorney over my mom, I paid all the bills. What happens to the mortgage after her death? Can I assume this even if my name is not on the deed? I am getting married... can I put my new wife's name on the deed only?
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    Joseph M. , Elder Law Attorney answers:
    The answer to this requires a bit more information, such as is the house titled in a Trust, and also I would want to read the actual loan papers. But, I can tell you that generally, the Mortgage company did not give you the loan, and has no obligation to you to let you assume the loan. They won't care that you can prove that you have been making the payments. Having said this, as long as interests rates remain the same or lower than your mother's loan, there may not be an incentive to make you refinance that loan in your name. However, if loan rates are greater, then there is no incentive on their part to allow you to assume a loan that they can get at a higher rate. I am not sure how the property is titled. If it is in a Trust, and you are the beneficiary and successor trustee, then you just have to get it put in your name. If it is in your Mom's individual name, you will have to open a Probate. As for putting your wife's name on it, if you own it, you can add anyone you want on it. But, at the moment, it would be considered to be your separate property. I am wishing you a long and happy marriage, but in the case of divorce, you may want to keep it as your separate property until you get a few years into the marriage.
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    Janet L. , Elder Law Attorney answers:
    After he death either a probate or trust administration procedure would be required to transfer titlte if you are the heir or beneficiary of her estate. I would hope your mother created a living trust. After title is cleared the real property will be in your name, then you can add your wife to the deed. Inherited property is your separate property. If you want to keep it separate then you should consult with a lawyer, otherwise you may be making a gift to your spouse of 1/2 of the property. In regards to the mortgage, the mortgage holder may allow you to assume their mortgage. Many clients just continue to make the mortgage payments without assuming the mortgage or refinance and pay off the mortgage. The lender cannot foreclose on the property if the payments are made.

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    I want the banker/trustee to take care of all things related to our house: emptying it and selling it...after our death. Is this possible in a simple revocable living trust which names the bank as the trustee? .... so the beneficiary would not have to do this.
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    Michael K. , Elder Law Attorney answers:
    A corporate trustee, such as a bank, can sell the house and all of its contents after your death. However, before you name a corporate trustee in your trust, you should talk to someone in the trust department to see how they normally handle suchmatters.

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    My Mom filed a quick claim deed back in 2006 turning her home over to my sister and myself. Mom had the right to live there. We placed mom in a assisted living residence months ago. She is 92 and was just falling a lot and cried all day because she was lonely. We moved her with the hope that her quality of life would be better and it has been. My sister died about 1 month ago very unexpectedly. I need to sell moms home because I financially cant afford to pay the taxes for very long, oil for heating this winter and homeowners insurance. I know these things have to be paid and I have paid them but as painful as it i,s can I sell the house?
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    Penelope M. , Elder Law Attorney answers:
    You or someone else will need to be appointed to represent your sister's estate. You can sell home but mother is entitled to the value of her life interest based on the IRS tables. You will probably need to pay capital gains taxes on your share of proceeds.
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    Richard S. , Elder Law Attorney answers:
    I'm sorry to learn of your difficult situation. You can only sell the house if (1) you have power of attorney for your mother authorizing you to do real estate transactions as her agent, AND (2) if an executor or administrator has been appointed for your sister's estate who would then have legal authority to join in signing the deed.
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    James R. , Elder Law Attorney answers:
    the answer is not an easy one. If your mother retained a life estate, she would have to agree to sell the house. Also, there is a question as to who owns the half of the house that your deceased sister owned. In order to fully answer your questions, we would need to see a copy of the deed

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    mom has been dead for 2yrs no will brother was made personal rep. 3 days ago how does that work
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    William K. , Elder Law Attorney answers:
    After 30 days from death any distributee (I am assuming brother would be a distributee) may qualify as personal rep(in this case administrator) by going to the clerk's office of the circuit court where decedent resided, making application, swearing to administer the estate in accordance with law and giving bond in amount calculated by clerk.Va. Code section 64.2-502.
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    William K. , Elder Law Attorney answers:
    After 30 days from death any distributee (I am assuming brother would be a distributee) may qualify as personal rep(in this case administrator) by going to the clerk's office of the circuit court where decedent resided, making application, swearing to administer the estate in accordance with law and giving bond in amount calculated by clerk.Va. Code section 64.2-502.
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    Ross H. , Elder Law Attorney answers:
    After 60 days anyone can become personal representative (administrator or executor).

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    MY DAD GAVE ME POA OVER HIS MEDICAL AND FINANCIAL....HE DIED RECENTLY...BUT IN THE 4TH PARAGRAPH IT SAYS "UPON MY DEATH I GIVE ALL MY ASSESTS REAL AND PERSONAL INCLUDING MY CAR TO MY DAUGHTER MARY...DOES THIS STOP OTHERS FAMILY MEMBERS FROM TAKING THINGS OF MY FATHER'S
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    Richard G. , Elder Law Attorney answers:
    By law, a POA expires at a person's death (except possibly for organ donation) and has absolutely no ability to transfer any of the decedent's property after death.
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    Jesse G. , Elder Law Attorney answers:
    Missouri provides that a Power of Attorney is terminated upon the death of the Principal (the person who executed the Power of Attorney). Only certain powers are allowed to be continued after the death of a Principal. It seems like the Power of Attorney document may be a bit broad and may be trying to convey something that it may not be able to under Missouri law. Ultimately the information in the Power of Attorney Document and your Father's estate plan would need to be reviewed by an attorney. It is important to talk with an attorney to make sure that your Father's estate is being handled properly and that other individuals are not taking items that they are not entitled to take. If you would like additional information we can be contacted at www.jglaw.us. The Missouri Bar requires that we state that: “The choice of a lawyer is an important decision and should not be based solely upon advertisements.”

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    My mother and father set up an irrevocable trust in the state of Nevada, Las Vegas. Three months after my father died my brother talked my mother into changing the trust. My Mother was heavily sedated at the time. He also talked her into giving him the house with all teh contents and then after the fact talked her into doing $70,000 worth of renovations to the home which I believe pocketed half of that money. Isn't this Elder abuse and can the changes be deemed null and void? Also is there a statue of limitations law on this>
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    Dara G. , Elder Law Attorney answers:
    Generally speaking an irrevocable trust cannot be changed. I urge you to seek out counsel to review the Trust and the options. It may be elder abuse or it may not be. It is hard to say without a full understanding of what occurred. Regardless there is no easy solution.

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    I am a beneficiary of investment property and I want to sell my share of my investment; can I do this? My brother is the executor of the trust and does not share all the information with us. For example, none of know how much is in the account for paying bills. The investment property is worth about 2million and I have been out of work now for 2 years and in debt. What are my choices?
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    Elizabeth L. , Elder Law Attorney answers:
    Under the new Uniform Trust Code, the Trustee is required to keep the beneficiaries informed of the status of the Trust by filing a yearly Account, unless the Trust says otherwise. It is important to read the Trust document. This contains all the power available to Trustees and beneficiaries of the Trust. All you need should be within the document. If, after reading the Trust and requesting an Account, you feel the Trustee is not doing his job, you may file with the Probate Court for his removal.

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    My sister will not release my money from the trust how do I go about resolving this issue? Can I dissolve the trust?
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    Timothy K. , Elder Law Attorney answers:
    You need to look at the document. Dissolving is not always the best or even the possible answer. Who is the Trustee? What authority does the Trust give her?
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    Gini T. , Nurse and Care Manager answers:
    This is actually a question that should be answered by an elder law attorney and I am a nurse geriatric care manager. It will likely also require a lot more information. If you are in the greater Kansas City metropolitan area I am happy to recommend an elder law attorney.
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    Steven A. , answers:
    The trust terms control distributions and if the trust can be terminated. It may be possible to dissolve the trust if all interested parties agree or a court orders termination based on the specific facts.

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    If My Father Has Willed His House To Me. Does His New Girlfriend Own Part Of His House If He Makes A Clause That She Can Always Live In it? The House own a part of the house if he put in the will his girlfriend can always live in the house
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    Dara G. , Elder Law Attorney answers:
    If your father is alive, his Will may be impacted by lifetime gifts. If he gives the girlfriend a life estate then that impacts what you can receive by way if inheritance. If he adds her as a joint tenant, that trumps your entire interest. You should have a discussion with him to determine his intent and recommend that he speak with an attorney.

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    My father recently passed away he was married to my Step-Mother for 14 years. They both signed a post nuptial agreement that states what is hers is hers and what is his is his. My dad left a will to divide his estate to the remaining 3 children. My step-mom is constantly changing her mind on whether she is going to contest the will or not. How long do we have to wait in the State of TN before the estate can be settled?
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    Olen B. , Elder Law Attorney answers:
    A Will may be contested up to 2 years after admission of Will to probate court.
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    Olen B. , Elder Law Attorney answers:
    A Will may be contested up to 2 years after admission of Will to probate court.

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    I had a relationship with a person that died. I own a safe deposit box that I thought I put the deceased name on it just as a signee. But now the bank sealed my box! I spoke to the deceased's wife and she is willing to go to court to have the box released to me. His son also said they would they release the box to me. Will I be able to get my box back? What else can I do to get the safety deposit box?
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    Charles G. , Elder Law Attorney answers:
    A peitition and order needs to be obtained to open the safety deposit box. Once examined , the box may be resealed until a legal representative is appointed on the Estate. Thereafter, the Box will be released to the legal representative.
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    Linda E. , Elder Law Attorney answers:
    Sorry -- The answer to this question needs to be supplied by a probate attorney who practices in NY.

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    Reagan C. , Nurse and Care Manager answers:
    I am happy to assist you with this question. However, I am not an attorney and I think you need to call Margaret Wadsworth who is an Elder Attorney. Her number is 843-798-1761. Tell her that I referred you to her for information regarding your question. If you need any assistance with this estate and the contents of the home related to transport/disposition and/or assistance with selling contents please contact me if I can be of any assistance.

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    two years ago i set up an irrevocable trust in texas currently my children and i have moved to new york. Is the trust still valid and how does it work?
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    Jeffrey G A. , Elder Law Attorney answers:
    It depends on what the purpose of the trust is and what the language is in the trust. Certainly if it was valid int Texas it is probably valid in New York. However I strongly recommend that you see an Elder law attorney to review the language. If i the purposes of the trust is protect assets from health care costs it may or may not have those qualities in New York. Trust law and even Medicaid law can vary by state even though the Federal Government sets the baseline of how a state may run it's Medicaid program each state can elect options above the baseline so this area of the law is state specific.
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    Giovanni S. , answers:
    The answer depends on the language of the trust as well as the goals you are attempting to achieve with the trust (i.e Medicaid planning, tax planning, etc..) I would recommend that you have the trust reviewed by an Elder Law/Estate Planning attorney in New York.
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    Elliot S. , Elder Law Attorney answers:
    It is still valid. I would need to review the trust before I could provide more information.

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    iam trustee there are 5 siblings 4 agree to sell for 215,000.00 1 wont sell. do i need permission to sell home from benicicieries if i am trustee?
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    RJ C. , Elder Law Attorney answers:
    You need to refer to the terms of the trust with respect to the real estate, which govern all of your actions as fiduciary. You should also refer to the sections which pertain to the removal of the trustee by beneficiaries. You may not need there permission but you must fulfill your duties to them as laid out in the trust document.
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    Brian M. , Elder Law Attorney answers:
    it depends upon what the Trust says about the trustee being able to sell trust on real estate.

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    Our bank charges a one time fee of 5% of the total estate and 2% a year thereafter. That seems high. Our estate will be less than 5 million a piece, but the combined total estimate (with real estate) is aprox. 6 million, doled out over a five year period. How much will my heirs be expected to pay the trustee for my living will?
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    Ruth P. , Elder Law Attorney answers:
    A one time fee of 5% of the total estate and then a fee of 2% a year seem high. Usually trustee's fees start at 1 to 1.25% of the first $2 million, and then are less on the next $3 million, and often there is a set up fee. Perhaps the bank is including the trustee's fee and the investment advisor's fees, in the 2%. You don't state what the 5% fee covers. Your heirs should expect to pay a fee of less than 1% per year on the value of all of the assets in the trust(s) for trustee's fees. The investment advisor's fee will be a separate fee.
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    Joseph M. , Elder Law Attorney answers:
    There is a bit of confusion with the language. A "Living Will" was a document that allowed you to designate end of life directives, which has now been superseded by California's statutory Advance Health Care Directive. I think you mean you have a Living Trust, and you designated a Bank as your Successor Trustee. The fees you are quoted are very high in my experience. I am not a fan of institutional Trustees, especially Banks. I have had to do petitions to remove such trustees, on behalf of the beneficiaries. If you want such a Trustee, I would recommend appointing an actual Trust Company, rather than a Bank that has a Trust Department. However, there are individuals known as Professional Fiduciaries, who are licensed by the Attorney General; Bonded; and trained to be a Trustee. You can Goggle the Professional Fiduciary Association of California, put in your zip code, and see a listing. Their fee structure would be approximately half of what an institutional trustee would charge, and there would be more personal relationship with between the PF and the beneficiaries. My rule of thumb is that an Institutional Trustee should cost between 1.2 - 1.8% of the assets they are managing on an annual basis; and a PF would be .5 - .8%

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    There are 3 women who are survivors to my Dad's trust. Can ALL three of us be successors? How many people can be the successor to the trust?
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    Richard G. , Senior Issues Advisor answers:
    Unlike so many of the questions asked, yours actually has a fairly straight forward answer. A trust can have as many successors in interest, referred to as trust beneficiaries, as the Trustor (maker of the trust) desires. So if the trustmaker had 20 children they could all be beneficiaries of the trust. Hopefully this answers your question. A question for you is, How will you receive the trust proceeds, will it be outright to you or in trust for your benefit? Give me a call do discuss further if you need more assistance and clarification. Often there is more to the situation than meets the eye at first.
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    Paul M. , Elder Law Attorney answers:
    There is no legal limit - but there is a practical one. Successor Trustees all have to work together, sign everything, agree on any steps. My advice is usually to appoint one as "primary" and the others as "alternates" so there's just one decision maker at a time. If Dad's already died, then you must follow whatever the Trust stipulates.

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    My parents who are both deceased left my sister in charge of a trust that was set up in California. My sister is now ready as the trustee to make the one and only final distribution from the trust. All the assets in the trust are cash earned from stock trading. Do we, as the beneficiaries of the trust have to pay state and federal taxes on that income? Do we pay California even though neither of us have ever lived there? (I live in Ohio and my sister in NY). Given that the trust is not part of the California probate process, will California still try to get some of the monies via state tax or is it just the IRS that we have to deal with? If so, what IRS form does each beneficiary file?
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    Gregory F. , Elder Law Attorney answers:
    To the extent that the trust distributions to beneficiaries include taxable income, each beneficiary receiving taxable income will report that income on their federal & state income tax returns. --

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    I am the trustee of my father's living trust. My daughter, aged 41, is the successor trustee after me. My mother, aged 94, is the beneficiary of the trust. I take no money for investing all assets and all income goes to my mother. My daughter, the secondary trustee after me, resigned as secondary trustee on Oct. 22, 2010; but on Feb. 1, 2012, she declared her resignation is “null and void and I desire to be reinstated as successor trustee.” I would prefer, for my mother's best interest that my daughter not be reinstated as successor trustee. Because I think my daughter will not take care of the 94-year-old beneficiary. Can she resign and then revoke that resignation 14 months later?
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    Kathy W. , answers:
    I would suggest you contact an elder law attorney for legal advice. Here is the link to the directory of the Illinois Chapter of National Academy of Elder Law Attorneys http://www.naela-il.org/member-directory.html

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    The Trustee currently in control of my trust has become too personal in the way he handles my trust. We also have irreconcilable differences. How would I go about appointing someone new? I'm looking for someone in and around Seattle who will be professional about his duties and not try to control who I am through the trust itself? Thanks.
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    Dan K. , Elder Law Attorney answers:
    First of all, you need to determine whether you have the right to terminate the current trustee and appoint a new trustee. You should review the terms of the trust to see what it says in this respect. The recent modifications of the Washington Trust Act contain provisions that clarify the procedure for appointment of a success trustee if the trustee has resigned. If the trustee declines to resign, and insists on serving as trustee, you may be able to exert enough pressure on them to make them decide that it is better to resign. But that will probably take a long time and cost quite a bit of money.
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    Susan M. , Nurse and Care Manager answers:
    As a Geriatric Care Manager I would want you to have your attorney or an elder law attorney review the trust with you. There should be provisions for changing trustees within the trust itself. At the same time, it would be helpful for you to interview a few potential trustees regarding their taking on this responsibility. Their are several banks in our area that provide this service. We would be happy to share that information with you once you get to that stage. Best of Luck
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    Richard G. , Senior Issues Advisor answers:
    While there are a lot of question I would need answered and I would have review the trust agreement to see if it indicates how to remove and replace a trustee. If there are provisions in the agreement, then those must be followed. If the agreement is silent on removing and replacing a trustee WA State has several methods to deal with changes to trusts in the Trusts and Estate Dispute Resolution Act (TEDRA). One option is non-judicial the other options are judicial requiring court action. As a beneficiary you have certain rights to information and accounting from the trustee. Give me a call at my number and I would be glad to assist you in this matter. Being a bendficiary of a trust where there are poor relations with the trustee is difficult but there are solutions to correct the situation.

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    I took care of my mother for 12 years until she died this year. I am successor trustee of her living trust and living in her home which is now owned by me and the 3 beneficiaries. I am doing my job as successor trust as they have received a nice amount of money. But now, the other 3 beneficiaries want the house sold immediately. They say sell it and get out or pay rent. I've barely had a chance to work through the belongings. [It's so interesting to get this inflexibility from my three sisters who did very little for our mother.] Am I obligated to move at a specific time and do I have to pay rent? I pay all my own bills. The estate only pays utilities and other trust related obligations. Is there any way I can negotiate the time frame for moving out? How?
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    Gary W. , Elder Law Attorney answers:
    The law will apply a "reasonableness standard" most of the time. You can absolutely negotiate this issue with your siblings, especially if you were not otherwise compensated by your mother. Feel free to contact me directly at my office to discuss this further. It is never just black or white. My phone is
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    D. Rebecca M. , Elder Law Attorney answers:
    This is too complicated to answer without a careful review of all of the relevant facts and papers, which would require an office meeting. However, if you are correct that you are now one of the legal owners of the home, the others can not force a sale or force you to pay them for use of the property without taking legal action in court. That being said, you would be well advised to consult an attorney as soon as possible for assistance to negotiate a written co-owners agreement which will (hopefully) settle the issues between you and the others without the need for court involvement. You also need legal guidance from an experienced attorney regarding how to administer the trust properly, to avoid problems with beneficiaries who may disagree with your actions as trustee. You may need to hire two separate attorneys, one to represent you in your capacity as trustee and one to represent you with respect to your conflict with other co-owners of the home you inherited.

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    I would like to include in my Trust Agreement the amount the Trustee is to be paid. Is that covered in the Florida Statutes as to the amount that is customary? There needs to be a limit set to prevent excessive charges. How much should the trustee of my living trust be paid to handle my living trust after I die?
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    Gretchen T. , Geriatric Care Manager answers:
    The Florida Statute 733.617 states that a personal representative can be paid at the rate of 3% for the first $1 million dollars. It goes on to show additional rates as asset amounts increase. Hope this helps.

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    For an irrevocable trust, how much should a trustee get paid, per year, to administer that irrevocable trust?
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    Howard K. , Elder Law Attorney answers:
    A trustee can be paid whatever the grantor of such a trust provides in the trust agreement, but if the trust agreement is silent on the issue, then generally it is equal to 1% of trust assets.

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    How do I word deeding title to a trustee, if I am the trustor (grantor). Is this correct: example: Roger & Susan Smith, husband and wife, as community property with rights of survivorship, as trustee to Roger & Susan Smith Living Trust. Pls help.
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    Andrea G. , Elder Law Attorney answers:
    The Grantor on the Trust Transfer Deed should be your name and your wife's name EXACTLY as it appears on your existing deed. Using your example, the Grantors would be Roger Sullivan and Susan Sullivan, as community property with rights of survivorship. The Grantee would be, Roger Sullivan and Susan Sullivan, as Trustees of the Sullivan Family Trust dated-------. However, make sure you use the EXACT wording of the name of your trust. If your name included your middle initials, include your middle initials on the deed.

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    Assume, for a minute, that a survivor's trust wishes to lend assets to a credit trust. Can the credit trust sell those assets (while continuing to pay interest on the lent assets) and re-invest money? Who recognizes gain in this transaction?
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    Robert F. , Elder Law Attorney answers:
    Something is missing from the factual information. If the Survivor’s Trust lends assets to the Credit Trust the Credit Trust does not own the assets to sell. The Survivor Trust would be the owner of the assets lent. However, if the Survivor’s Trust sold the assets to the Credit Trust and carried back a note that was secured by the sold asset then the Credit Trust, if there was no due on sale or transfer clause in the financing, could sell the asset. The capital gain question depends on clearing up the facts.
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    Naomi C. , Elder Law Attorney answers:
    An accurate answer to the questions of whether a loan can be made between the trusts and re whether the "loaned" property can be sold by the borrower requires review of the trust instrument(s) and the loan document or promissory note. With the right language, these transactions should be possible. Regarding the tax consequences of the proposed transactions, I don't have enough information to give you a firm answer. You might be able to structure the transaction so that the IRS would treat it as an installment sale by the survivor's trust to the credit trust, allowing recognition of the gain to be deferred over a number of years. Or it might be structured as a straight sale by the survivor's trust to the credit trust, in which case the survivor's trust would recognize gain on sale, and the credit trust would recognize gain or loss based upon the difference between the price it paid to the survivor's trust and the price it sells the asset for. Depending upon your objectives and goals, there a a number of approaches for structuring this transaction. I strongly recommend that you discuss what you're trying to accomplish with your estate attorney and your CPA. There may be other options to consider once all of the relevant facts are disclosed. Good luck!

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    What can a trust, for an elderly person who is in a nursing facility paid by Medicaid In MA., be used for?
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    Hyman D. , Elder Law Attorney answers:
    This is not a simple question. In MA, a trust only qualifies the beneficiary for medicaid if ONLY income is available. Otherwise, the funds would be accessible and would have to be used for the long term care.

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    What are ways to use the money from a pooled trust? What can be reimbursed? Specific items/ideas. The pooled trust in question, is in Massachusetts.
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    Gina B. , Elder Law Attorney answers:
    A Special Needs Trust provides for the needs of the disabled person to the extent that those needs are not otherwise provided for by public benefits or any other source. Thus, the funds held in a Special Needs Trust are typically used to provide for additional quality of life. Examples of permissible distributions include: 1. Automobile / Van 2. Accounting services 3. Acupuncture / Acupressure 4. Alterations or mending of clothing / shoe repair 5. Appliances (TV, VCR, stereo, microwave, stove, refrigerator, washer/dryer and maintenance/repairs) 6. Bottled water or water service 7. Bus pass / public transportation costs 8. Camera, film, recorder and tapes, development of film, photo albums, scrapbooks and supplies 9. Clothing 10. Clubs and club dues (record clubs, book clubs, health clubs, service clubs, zoo, advocacy groups, museums) 11. Computer hardware, software, program, maintenance / service, internet service 12. Conferences and travel related to same 13. Courses or classes (academic or recreational) including supplies 14. Curtains, blinds, drapes and the like 15. Dental work not covered by Medicaid, including anesthesia 16. Down payment on home or security deposit on apartment 17. Dry cleaning and/or laundry services and/or supplies 18. Elective surgery 19. Fitness equipment 20. Funeral expenses within regulatory limits 21. Furniture, home furnishings and insurance 22. Gasoline and/or maintenance for automobile 23. Haircuts / salon services 24. Holiday decorations, parties, dinner dances, holiday cards 25. Home alarm and/or monitoring / response system 26. Home improvements, repairs and maintenance, including tools to perform home improvements, repairs and maintenance by beneficiary who is a homeowner 27. Home purchase 28. Home cleaning / maid services / lawn services / snow removal 29. Independent care managers / case managers 30. Insurance (automobile, home and/or possessions) 31. Insurance co-payments not covered by any other source 32. Legal fees 33. Linens, towels, bedding and other household furnishings 34. Massage, facials and other similar services / treatment 35. Musical instruments (including lessons and music) 36. Non-food grocery items (laundry soap, bleach, fabric softener, deodorant, dish soap, hand and body soap, personal hygiene products, paper towels, napkins, Kleenex, toilet paper and any household cleaning products 37. Over the counter medications (including vitamins and herbs, etc.) 38. Personal assistance services not covered by Medicaid 39. Pet and pet supplies, veterinary services 40. Physician specialists if not covered by Medicaid 41. Private counseling if not covered by Medicaid 42. Repair services (appliances, automobile, bicycle, household, fitness equipment) 43. Sporting goods, equipment, uniforms, team pictures, travel to games, tournaments 44. Stationary, stamps, cards, etc. 45. Storage units 46. Telephone service and equipment, including cell phone, pager, etc. 47. Therapy (physical, occupational, speech), not covered by Medicaid 48. Tickets to concerts or sporting events 49. Utility bills (Direct TV, cable TV, electric, heating) 50. Vacation Examples of Trust Distributions that will reduce SSI Benefit 1. Basic shelter related expenses 2. Food 3. Cash for any purpose Examples of Impermissible Trust Distributions 1. Paying for a service already paid for by another source 2. Distribution not in the best interest of the beneficiary (made primarily for the benefit of another person)
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    Michele F. , Elder Law Attorney answers:
    As you may know, a pooled trust must be used solely for the benefit of the individual for whom it is established and it is audited by masshealth. That said, there are a large number of things that it can be used for for example dental care not otherwise reimbursed companion care vacation nicer wheel chair or other adaptive devices not covered by insurance personal items e.g. tv etc for the individual
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    Hyman D. , Elder Law Attorney answers:
    The pooled trust can be used for almost any expense for the beneficiary. Some expenditures may have to be reported to SSI, but it would only reduce the monthly income of the beneficiary the following month. Buying clothing, massage therapy, a TV, furniture, trips are all allowable.
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    Carol K. , Elder Law Attorney answers:
    If the beneficiary is on SSI, and you pay food and shelter expenses or give them cash, it will reduce his/her monthly benefit. Otherwise, yo can use money in a pooled trust for all kinds of things -- vacations, clothing, electronic equipment, cable and computer expenses, entertainment such as movies concerts and plays, beauty aids and spa treatments, medical expenses not covered by MassHealth or insurance such as fancy wheelchairs, massages or extra care. The list is endless -- be creative. Note that the benefits programs will not allow the trust to pay for items and expenses of non-beneficiaries. This is not an inclusive list, and there are minefields to watch out for. You should seek competent legal advice.

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    I live in Ohio. My elderly grandmother died recently. What can you tell me about the process and steps needed to distribute a living trust?
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    Howard K. , Elder Law Attorney answers:
    First, I am assuming that the trust is a Florida trust, and that your grandmother was a Florida resident at the time of her death, asopposed to Ohio or nay other state. Having said that, when a grantor of a trust dies, it will usually trigger the distribution provisions of the trust, requiring that a successor trustee accept trusteeship, if not already acting. Once a successor trustee has been identified and accepts his/her appointment, s/he must work with an attorney to send out notices to named beneficiaries advising them of their rights and obligations under Florida law. Creditors must be ascertained before any distributions are made so as to be sure there are enough assets to satisfy creditor claims. Once all creditors have been paid, distrbution of assets can be made, with certain documents being signed by beneficiaries to protect the trustee. It is best to work with an attorny knowledgable in this area to guide the trustee in managing the trust from this point forward.

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    Aunt passed away. Both trustees of the trust refuse to step up and take the responsibility in the trust. If both trustees of a trust decline to do their job, in this case because of illness, what happens to the trust? How should these trustees behave vis a vis their responsibilities to the trust?
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    Kathy W. , answers:
    I would suggest calling on an elder law attorney in the area for specific advice.There are several in the Aurora area,here is a link to Kane County Senior Resources directory page for legal services-http://www.kanecountyseniorresources.com/cgi-bin/members.pl?search=Legal&field=category&method=broad
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    James S. , Elder Law Attorney answers:
    The Trust usually will have provisions dealing with succession of Trustees upon the refusal, inability to act or death of the prior Trustee. So it would be necessary to review the actual Trust document to determine who has authority to act now. If the TRust fails to name the successor, it will frequently provide a formula to appoint a successor. Again you would need to have an Attorney review the Trust document. Worst case scenario, if Trust document is defective and provides no method for appointing a successor, then the Attorney will need to work with the named beneficiaries and possible need to file a Court action for appointment under the Trust Act. Good Luck.
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    William W. , Elder Law Attorney answers:
    You cannot make named trustees accept the position. One's next step is for the income beneficiaries of the trust name a trustee-this is allowed under Illinois law. Lastly, a more expensive way to go is to file a court petition and have the Court appoint one.

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    My father. who died in 1989, set up an irrevocable trust, probably in Wahington D.C. and I still have not recieved any money from it, even though I'm his only progeny and my mother is deceased. I don't know the name of the trustee. Where can I find information about a specific trust?
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    Richard G. , Senior Issues Advisor answers:
    Trusts, by their vary nature are private and not registered or recorded like business entities. However, the Trustee of a trust must notify all beneficiaries of the trust. If you have not been notified, your father may not have listed you as a beneficiary. An example is that he may have established an irrevocable trust for charitable purposes or perhaps the trust was never actually implemented. This being said, you may need to enlist an attorney to help you locate the trust. Do you happen to know if your father saw any particular attorney or law firm? This is the first place to start. You can contact other family members. Court records are another place to search. You can go to the court in the jurisdiction where he died and see if there was a probate filed or any other proceedings that might give you some idea of who the trustee may be and any law firm involved, most court records are accessible on-line. You can also post notices in local newspapers where your father lived and where he died. Bottom line is that is may prove difficult and be costly to discover this information, especially due to the many years that have elapsed since his death in 1989. If you would like assistance please give me a call at 425-284-3450. Best of luck to you.
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    Barbara B. , Geriatric Care Manager answers:
    I would suggest you seek assistance from a local estate attorney who should be able to give you direction in this matter.

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    I have been asked for a certified copy of a trust. This is in Ohio. Who would certifiy the trust if the trust is not filed? Thank you in advance
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    Rebecca R. , answers:
    I noticed that several attorneys have responded to this inquiry. I was going to respond with the same answer. In the state of Ohio, you do not have to file a trust with the courts.
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    Monty D. , Elder Law Attorney answers:
    Few trusts are filed; this is not unusual. The certification is provided by the current trustee of the trust, and is an affidavit such as that prepared according to the Ohio Revised Code Section 5301.255. Anyone requesting a certification may that additional information to be included, but most are satisfied with the information required by the statute. I strongly suggest these be drafted by an attorney. The cost is nominal, and anyone who drafts them for themselves or others risks committing the unauthorized practice of law. Any estate planning lawyer can prepare this document quickly. But, look carefully...you may already have what you need! Some attorneys title this document "memorandum of trust," "abstract of trust," or "affidavit of trust." You may have the document already, and may not recognize it!
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    James B. , Elder Law Attorney answers:
    A Certification of Trust is a document authorized under the Ohio Trust Code to stand in for the full trust. It is executed by the Trustee of the trust. See Ohio Revised Code Section 5810.13 for further details.
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    Cynthia N. , Geriatric Care Manager answers:
    5810.13 Certification of trust furnished to person not beneficiary. (A) Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust containing all of the following information: (1) A statement that the trust exists and the date the trust instrument was executed; (2) The identity of the settlor; (3) The identity and address of the currently acting trustee; (4) The powers of the trustee; (5) The revocability or irrevocability of the trust and the identity of any person holding a power to revoke the trust; (6) The authority of cotrustees to sign or otherwise authenticate and whether all or less than all are required in order to exercise powers of the trustee. (B) Any trustee may sign or otherwise authenticate a certification of trust. (C) A certification of trust shall state that the trust has not been revoked, modified, or amended in any manner that would cause the representations contained in the certification of trust to be incorrect. (D) A certification of trust is not required to contain the dispositive terms of a trust. (E) A certification of trust may establish the identity of the trustee and any succession of trustees under division (B) or (C) of section 5810.14 of the Revised Code. (F) A recipient of a certification of trust may require the trustee to furnish copies of those excerpts from the original trust instrument and later amendments that designate the trustee and confer upon the trustee the power to act in the pending transaction. (G) A person who acts in reliance upon a certification of trust without knowledge that the representations contained in the certification are incorrect is not liable to any person for so acting and may assume without inquiry the existence of the facts contained in the certification. Knowledge of the terms of the trust may not be inferred solely from the fact that a copy of all or part of the trust instrument is held by the person relying upon the certification. (H) A person who in good faith enters into a transaction in reliance upon a certification of trust may enforce the transaction against the trust property as if the representations contained in the certification were correct. (I) This section does not affect the use or validity of a memorandum of trust under section 5301.255 of the Revised Code. (J) This section does not limit the right of a person to obtain a copy of the trust instrument in a judicial proceeding concerning the trust. Amended by 129th General AssemblyFile No.65,SB 117, §1, eff. 3/22/2012. Effective Date: 01-01-2007; 2008 HB499 09-12-2008 An attorney can prepared the certification of trust for you.

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    Must the trustee of a living trust own half of the assets in the trust? Is there a way to structure the trust so that the trustee appointed has no ownership in the assets?
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    Ross H. , Elder Law Attorney answers:
    Are you confusing FIDUCIARY ownership with PERSONAL ownership? As a FIDUCIARY the trustee will 'own' or control the assets for the benefit of the beneficiary of the trust. In other words, particularly under Virginia law (where I am located) title to property is frequently done in the name of the trustee as trustee of the xyz trust. You may wish to consult a lawyer who handles this type of work to get your question clarified and then the answer.

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    Where or with whom do you file a trust in Ohio?
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    Todd B. , Elder Law Attorney answers:
    Generally a trust is not always"filed" or recorder. they are generally private documents that one would not want to file or record. A deed for property held in trust is recorded at a county recorders office in the county where the property is located.
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    Monty D. , Elder Law Attorney answers:
    Normally, you don't file it anywhere. You will need to record a certificate (affidavit) of trust if you are selling property owned by a trust, but this should be filed at closing, and not before.

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    I need to set up a trust for my sister according to the stipulations of my mother's will. My mother is deceased and there are limited funds in the trust. What kind of trust should I establish? Is there a form I can fill out? Is there an easy way to do this?
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    Richard G. , Senior Issues Advisor answers:
    First, my condolence on the passing of your mother. Your mother's will holds the answers to your question, so without reading the will itself it is nearly impossible to answer your question. There are many types of testamentary trust (a trust established by a will). It is unlikely that any forms are available. The terms of the trust should be in the will itself. So, my first recommendation is to select an attorney to assist you in reading and interpreting the will and terms for the trust. The will must be filed with the court as either a probate or non-probate filing depending on a number of factors. If the trust for your sister is for special needs it is crucial that it be established and managed properly by the designated Trustee. At my firm we can assist you in all your wills, trusts and estate matters. Call today for a free consultation.

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    My mother is afraid to go out in public right now, she has been like this for years. I am the Durable Power of Attorney for my Mother. Can I legally sign the Revocable Trust we have drawn up for her, instead of having her sign it?
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    Karen J. , Elder Law Attorney answers:
    What will drive the answer is the language in the durable power of attorney itself. If the durable power of attorney allows the agent to establish an inter vivos trust and also allows the agent to fund an inter vivos trust, then you should be able to do so. I would discuss the matter with the attorney drafting the revocable trust to assist you with this determination.
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    Mae B. , Elder Law Attorney answers:
    You can only transact fiduciary responsibilities which are specifically authorized in the Durable Power of Attorney in most states. Where does your mother reside? Why not bring witnesses and Notary to your mother?

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    Can I cancel a revocable trust without using a lawyer in order to draw up a new trust?

    The trust in my family is over 10 years old and therefore needs to be redone. I expect to be able to draw up a new trust using the instructions provided by 'Trust for dummies' or other similar publications.

    Is this do-able? Can I cancel the old trust by myself?
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    Robert F. , Elder Law Attorney answers:
    My mother used to say being penny wise is sometimes pound foolish. I strongly suggest if you have to ask this question you should not be drafting a trust that is intended to dispose of a lifetime of wealth. You may not even need to cancel the old trust. The goal of a trust is to reduce costs. You do not want to create an unintended ambiguity because the facts of your family situation are not the same of the hypothetical family described in the trust for dummies book. You also need to understand that when you answer a series of questions in a computer the questions are preselected to lead to result. Perhaps the right questions for your situation were not asked. When you hire a lawyer you are getting an insurance policy that the document is fit for your particular family situation. Often the computerized documents do not address what happens if circumstances change, e.g., a parent become ill and needs Medicaid. A trust may not be appropriate. I urge you to see an attorney before you attempt this project.
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    Gary L. , Elder Law Attorney answers:
    I would never recommend using an on-line or do it yourself trust. They do not provide for government benefit planning and must be coordinated with durable power of attorney so they can work hand in hand.
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    Linda F. , Geriatric Care Manager answers:
    You might do yourself and your family a disservice by not using an attorney. If you are a senior you can call Senior Information at 800-510-2020 and ask for the number for legal services for seniors for low cost legal advice.

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    Does a beneficiary of a trust have to be notified if they are removed from that trust?
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    David R. , Elder Law Attorney answers:
    No. There is generally no duty to do so, but if the change was due to fraud or undue influence, including possible elder abuse, that beneficiary may have recourse. Each case is different and should be analyzed by an attorney that understands the law in this area.

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    Can an irrevocable trust be altered? Can someone who is named in one as a beneficiary be removed? Can funds or assets be removed or used from an irrevocable trust for any reason?
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    Joseph M. , Elder Law Attorney answers:
    A lot depends on the language of the IR Trust. Typically, an Irrevocable Trust cannot be amended, but the Settlor may have reserved the right called a "Power of Appointment" to change beneficiary distribution amounts. I would need to review the Trust to be able to properly answer this.
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    Ruth P. , Elder Law Attorney answers:
    The answers to your questions depend on the terms of the irrevocable trust. Whoever will answer your questions needs to read the trust first. Each trust is different as to what can be done.

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    My parents have a bypass trust together. The assets are 2 homes and cash. I was named in this trust along with my sister...we were to divide the estate equally between us when our parents passed. My sister and I were also named as co-trustees. My mom passed away in 2010. The estate was divided where my Mother's half then became irrevocable. My dad is 86...he is feeble and irrational, has been for many years. My sister is his favorite, she is controlling, greedy and we have never gotten along. She has betrayed me many times. My dad is still in control of his trust. My sister told me that dad met with his attorney (she was there) and she said that dad had cut me out of his trust and gave it to her. My dad told me that he gave her the house. Neither one will meet with me or talk with me. My dad's trust attorney was told not to tell me anything or give me a revised copy of the trust. Where are my rights? I did nothing to deserve this. After my dad passes away, how do I go about getting my inheritance back on his estate? My parents trust states that whoever contest the trust is left $1.00. I don't even know if I am still really named in his trust or not. I know there is a period of time where the trust can be disputed upon dissolving but is this something I do with my dad's attorney since he will then be working for me or do I get my own? Thank you in advance
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    Joseph M. , Elder Law Attorney answers:
    I believe you will have to get your own attorney. As far as the Irrevocable Trust of your Mother's interest, he should not be allowed to make any changes to that Trust. You are entitled to a copy of it, and can compel him to provide it to you. As to his Survivor's Trust, he can do anything he wants. If you think that your sister is manipulating him or using undue influence, then unfortunately, there is nothing for you to do until he dies, or currently establish a conservatorship. This is complicated and deserves a much longer response, but I would need more information. I think it is best if you were to have a consultation with an estate planning attorney that specialize in litigation.

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    In my family, a trust exists, but there have been changes in home, vehicle, etc. that need to be updated. How can we update our existing trust?
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    Debra J. , Geriatric Care Manager answers:
    You can either contact the same Trust attorney who created the existing Trust you want to update. If that person is not available anymore, you can go to any Trust attorney (good to get a referral from someone for an attorney in your area), and they will amend your Trust for you. It's good to have a Trust Attorney as these types of living documents are often updated/amended frequently as things change.
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    Robert F. , Elder Law Attorney answers:
    This question is very broad and it is unclear what the term "changes" in home or vehicle mean. Assuming that a new home was purchased the correct way to add a parcel of real property to a trust is to create a deed transferring the property from individual names to name of the trust. This best done through a lawyer or title company to avoid title issues later. If the question concerns how to change the terms of the trust, remove a trustee or replace a beneficiary, this usually is described in the trust and is most often accomplished with an amendment to the trust. Again it is advisable to seek the advice of a lawyer to avoid unintended results.
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    David K. , Elder Law Attorney answers:
    It may be as simple as titling the assets in the trust. If the trust has not been reviewed for several years, it may be best to have the trust reviewed as an amendment or completely new trust may be required depending upon the circumstances.

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    What happens to a large estate when the estate's owner is incapacitated? Who would make decisions and perform maintenance needed to keep the owner in comfort and in the style they would expect? In this estate, there are no heirs, as far as I know?
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    Barbara R. , Nurse and Care Manager answers:
    The court would need to appoint a Guardian who would act as Power of Attorney and Health Care Surrogate to pay bills, manage the estate and make decisions for the client. If someone in the family is willing they could petition the court with the assistance of an attorney or sometimes the dept. of children and family services would do so.

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    I am a trustee of an estate that includes a business. I am also an employee of said business. As the trustee, can I still work in the business and draw a salary?
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    Ronald A. , Elder Law Attorney answers:
    Yes, you continue to work at the business and draw your customary salary.

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    We bought a condo for our disabled son and it is in a special needs irrevocable trust. We are the trustees. He has decided to move out and live on his own. Are we able to sell the condo? It is worth about $25,000 and the mortgage is about the same. Can the condo be sold and the monies put back into the trust?
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    A Stephen K. , Elder Law Attorney answers:
    You stated the trust owns the condo. You, as trustee have authority to sell trust assets. The sales proceeds belong to the trust, so the money stays in the trust. Because the sales proceeds never left the trust there is nothing to put back into the trust.
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    Howard K. , Elder Law Attorney answers:
    Since the trust owns the condo, the sales proceeds must go into the special needs trust. There is no option to place the funds elsewhere.
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    Daniel P. , Elder Law Attorney answers:
    It will of course depend on the language of the trust, but generally speaking you should be able to sell the condo. If the condo is owned by the trust, the net proceeds from the sale would be payable to the trust. I would suggest speaking to the attorney who drafted the trust or find a new elder/special needs attorney who can help.

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    The trust employed by my deceased parents states that all money left be distributed between my 5 siblings. Three of the siblings owed some money to our parents, but there were never any promissory notes submitted. My parents did not have anyone sign a promissory note.
    So, with that being said, does the money still get split 5 ways?
    Three of the four siblings left say yes, but we have one that says the ones that owed should not get their share. We feel if my parents wanted it back they would have had us sign the notes and turn them in, but they chose not to have us do that.
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    Steven A. , answers:
    It depends on the language of the trust and it depends on if the trustee can bring a claim against a beneficiary to recover the debt owed to the trust.

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    Can limits be placed on a trust fund? For example, can a controlling contingency on a fund be that the capital remain intact, and only the income remains available for spending? Let' say each grandchild receives a million dollar trust fund, can it be specified that only the income is available for spending?
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    Thomas M. , Elder Law Attorney answers:
    Yes, a trust can provide for distributions to be made from income only, either manditorily or in the discretion of the trustee, for a period of time or for life. Same with distributions of principal, if you so choose. Feel free to contact me directly

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    I am the trustee of my deceased aunt's estate. All personal property has been sold. Do I need to apply for a TIN if there is only real estate in the estate? Is a TIN required to finalize trust of deceased person if no real estate or personal property exist?
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    Sharon B. , Elder Law Attorney answers:
    Whenever a trust is administered or a probate estate opened, a tax ID number is needed as the person's social security number can no longer be used. If the money from the sale of the house was made payable to the trust or the estate it would go into a bank account and the bank would need the tax id number

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    If the value of a shelter trust in New York State increases to be worth more than $1 million dollars, does NY Estate tax kick in at that point? Given the increase in value we think that property should be sold.
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    Elisha W. , Elder Law Attorney answers:
    No. The NY basic exclusion is $3,125,000 and will rise to $5,250,000.

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    I am the beneficiary of an Irrevocable Trust. In addition to being the beneficiary, can I also serve as the Trustee on this trust?
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    Carole L. , Geriatric Care Manager answers:
    You need to talk to a lawyer.

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    There is a family trust in my family, that left everything from our parent's estate to our parent's three daughters. The trustee is having certain items auctioned off from the estate of our parents. The trustee said that if we, the family want any items we must bid, like everyone else at the auction. The trustee claims that that is the most fair option. Is this an obligation? Can we not just take items from the estate without having to bid and pay for them?
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    Elizabeth S. , Elder Law Attorney answers:
    The answer depends on the terms of the trust and the language regarding the distribution of tangible personal property. Sometimes if the children cannot agree this can be a fair way to settle disputes, but it is not the only way. You might want suggest the Trustee deduct your purchase against any cash that you might be receiving.

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    My siblings and I do not get along. My mother did have a Lady Bird Trust made. In this ladybird trust, she named my brother as trustee. I get along with my mother, in fact spent every Thanksgiving and Christmas with her. In her trust she named all of her children as equal beneficiaries.
    4yrs have passed since that trust was created. Since then, my brother and I have not gotten along very good. I asked to see a copy of the trust and just found out 2yrs ago my mother took me out of the trust stating that she had given me gifts during her lifetime. Can I contest this trust?
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    Sharon B. , Elder Law Attorney answers:
    I am not sure what you are referring to as a Lady Bird Trust. There are Lady Bird Deeds, however, these are deeds regarding a specific piece of real estate that are recorded with the register of deeds. If your mother did a Revocable Living Trust, she is able to amend this during her lifetime. When she dies, if you feel a trust was changed and your mother lacked capacity to sign the trust, or she was forced into signing, you would have an argument to contest her trust, however, if she chooses to revise her trust and she is of sound mind, your ability to succeed with such a challenge is questionable.

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    I need an advocate for managing my sister. My sister accuses me of theft and is holding up our mother's trust payment distributions, on those grounds. I am looking for an advocate here to help me move forward with dealing with issues from the trust.
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    Ronald A. , Elder Law Attorney answers:
    You can demand an accounting, and if she won't cooperate, you can bring a proceeding in the probate court to have her removed as trustee, and have her replaced with someone,yourself, for example, who will administer the trust properly, and distribute the assets according to the terms of the trust.

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    My father died having had an irrevocable trust in place. His wife, will not let us (the deceased's children) see the contents of that trust. What can we do? Does she or the trustee have any duty to show us the contents of the trust? We believe that all property is to be divided upon her death.
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    Ronald A. , Elder Law Attorney answers:
    Google California Probate code 16060 through 16082
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    Joseph M. , Elder Law Attorney answers:
    Probate Code §16061.7 has a requirement that the Trustee of the trust that becomes Irrevocable must provide a notice of the death of the Settlor; who is the Trustee, and where it is being administered. The notice is to be sent out to any legal heir of the Decedent, and anyone mentioned as a beneficiary of the Trust. I am not sure if the wife is the Trustee, but whoever is the Trustee can be compelled in court to provide this, but it might take going to court if there is no cooperation.

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    What documents are necessary to place our home in our trust? We have a revocable trust. We are trying to avoid probate when both husband and wife have passed away.
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    Don R. , Elder Law Attorney answers:
    Honestly you do not want to place your home in your trust. It will become a countable asset for Nursing Home and lose the super protection from creditors for married couples. The perfect solution is a lady bird deed. These deeds are more accurately called 'enhanced life estate deeds' but got their more colorful moniker (according to unsubstantiated legal lore) because President Johnson once used this type of deed to convey some land to Lady Bird. 'life estate' is an ownership arrangement for land designed to accomplish two things: 1) it allows the homeowner to retain the use of the home during his/her lifetime, and 2) it transfers title to the home at the time of death without the need for probate. In a regular life estate deed, the owner keeps the 'life estate' and conveys a 'remainder interest' to someone who will inherit the property. The current owner continues to occupy and use the property and is entitled to all money that may come from the property. However, the owner cannot sell the property without agreement of and participation by the holder of the remainder interest. Further, the IRS puts a value on the creation of the remainder interest, and if it is large enough there may be gift tax consequences. A 'Lady Bird' enhanced life estate deed adds one feature: the owner keeps the right to sell or give away the land without anyone's consent or participation. Essentially, the owner has the unilateral right to cancel the remainder interest. As such, there is no taxable gift to be accounted for. If the arrangements under the Lady Bird deed are not cancelled, then when the owner dies the life estate expires automatically. The remainder interest matures into full, unrestricted ownership. The ownership change happens without probate. The following is a comprehensive list of the advantages and disadvantages of the Lady Bird Deed. ADVANTAGES: 1. No need for deeds in the drawer. 2. There is no due on sale or acceleration of mortgage note. 3. A husband and Wife retain Tenancy by the Entireties protection. 4. It avoids the cost and delay of Probate. 5. Liability insurance does not need to be changed TAXES: 6. There is no uncapping of property tax 7. There is no rescission of the Principal Residence Exemption. 8. There is no Gift Tax owed under the Internal Revenue Code. 9. The property does not lose step up in basis under the Internal Revenue Code 1014 and 2036 (a). 10. The property does not lose capital gain exclusion under Internal Revenue Code 121. 11. There is no county transfer tax. 12. There is no state transfer tax. MEDICAID: 13. Estate Recovery which was recently passed by the State of Michigan will be avoided. 14. There is no divestment/Gift for Medicaid purposes. 15. There is no loss of any Medicaid exemption the home is still protected provided the equity does not exceed $500,000 subject to certain exceptions. BENEFICIARY ISSUES: 16. One keeps control during life and can transfer, mortgage, lease, or perform any other transaction concerning real estate WITHOUT THE CONSENT OF THE REMAINDERMEN/BENFICIARIES. 17. The capacity of the beneficiary does not affect the property. 18. There is no exposure to future beneficiaries creditors during the life of Grantor. 19. Future beneficiaries cannot sell or encumber the property. 20. Future beneficiary can not partition or interfere with the use of the property. 21. It reduces the risk of Elder abuse. 22. Can name a Trust as beneficiary of deed. DISADVANTAGES: 1.The property is a countable asset for Medicaid purposes unless it is exempt (i.e. Homestead). 2. The property is an asset for Federal Estate and Generation Skipping taxes (i.e. not a completed gift). 3. There is no control after death unless conveyed to Trust. 4.Some assessors and Register of Deeds personnel are unfamiliar with Lady Bird Deeds and may mis-classify them.
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    Steven M. , Elder Law Attorney answers:
    there are several different types of deed conveyances that could be utilized to convey title into a revocable living trust.

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    I have been named the trustee of my mom's estate on her passing. If something should change, and should I not be able to, or not want to serve as the trustee for my mother's estate, my sister is the next designated trustee. I think my sister wants us to both to be co-trustees. Is having two trustees on a single trust allowed in California?
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    Marty B. , Elder Law Attorney answers:
    Yes, it is allowed, but usually I recomend against it. As a beneficiary your sister will have the ability to hold you accountable, but you wont have to get her signature and approval for everything you do. You won't have to have her go to the bank and escrow, etc. with you. If it is a matter of trust then i would recomend your mother use a profesional trustee. In fact depending on the size of the estate a professional trustee can be a much better option for many people. Although they come with some expense, they reduce accounting and attrorney fees. They also ensure prompt professional administration of your mom's estate.
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    William W. , Elder Law Attorney answers:
    Yes

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    We have a family trust, the grantor died in aug 2012, there are 4 equal beneficiaries, one of those beneficiaries is also the trustee. the trust is revocable/irrevocable living trust. The entire trust is under $1,000,000. (house sold for $400,000 and the money is about $300,000).
    The house was sold 3 months ago. all bills have been paid, 2012 taxes have been done, and the only thing left is filing taxes on the sale of the house which i was told can't be done until 2014 because the house was sold in 2013. How long can a trustee justify withholding money now that everything is done?
    And also are there any taxes on the sale of the house or is there just a tax document that must be filed to show the transaction involving the sale of the house?
    [It is my understanding that in general, a trust does not pay taxes, but a trust (money and sale of the house) must be reported to the IRS.]
    I am being told that there are taxes on the trust including taxes on the sale of the house. I was told that after the 2012 taxes are complete money would be distributed. But after the house was sold I was told 4 or 5 times that one tax issue or another was being worked on and then money would be distributed. The supposed tax issues were dragged out for a few months, I am now being told that the house must pay taxes in 2014. I also would like to know if a trust can file the tax documents now for a house that was sold in 2013, or do you have to wait until the tax season in 2014 to file for the sale of the house?
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    Leonardo A. , answers:
    While I don't know the answer to the question, it appears neither does the lawyer who responded.
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    Elliot S. , Elder Law Attorney answers:
    Distributions can be made even if taxes are do. The trustee would just set aside money for taxes.

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    Can a judgement against a party attach a trust? Can the trust be named in this judgment?
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    Marty B. , Elder Law Attorney answers:
    It depends. If it is a revocable trust then the assets are vulnerable to any creditors of the person who set up the trust. If however it is an irrevocable trust then there may be some asset protection benefits. Most trust do not offer asset protection. If this is a concern then you should meeting with an attorney who does estate planning and asset protection.
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    Candice B. , Nurse and Care Manager answers:
    Only an attorney can and should answer this question. I can refer you to a local lawyer if needed.
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    Candice B. , Nurse and Care Manager answers:
    Only an attorney can and should answer this question. I can refer you to a local lawyer if needed.
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    Carolyn T. , answers:
    This is a question for an Elder Care Attorney.

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    The house is owned outright by one person. Can another person's trust pay it off in Florida? Can a trust be used to pay off a home line of credit?
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    Howard K. , Elder Law Attorney answers:
    In order to properly answer this question, you will need to have the trust reviewed by an attorney. Having said that, it would be unusual, i my experience, to have one trust pay for expenses of a non-trust asset. However, if the home is owned by someone that is a beneficiary of the trust, then it may be possible to make a distribution to that beneficiary, who in turn could use the funds to pay down the credit line mortgage.

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    I have a marital trust is based in Connecticut. The bank trustee is trying to charge 2.25% of value on date of death for settling the marital trust. What is a reasonable bank trustee fee for settling a marital trust?
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    Deborah H. , Elder Law Attorney answers:
    Whenever a court is reviewing the fees of a fiduciary (i.e. trustee), the court takes into consideration the size of the estate, the responsibilities involved, the character of the work required, the special problems and difficulties met in doing the work, the results achieved, the knowledge, skill and judgment required, the manner and promptitude in which the manner was handled, the time required, and any other circumstances that are relevant and material, as per the case of Hayward v. Plant , 98 Conn. 374 (1923). This is relevant if the marital trust is within the probate court jurisdiction. If this marital trust is outside of the jurisdiction of the probate court, the trust, itself, or the institutional trustee's contract may establish the compensation. Each institution has its own schedule of compensation fees. As a rule of thumb (only), in a probate court setting, many courts when reviewing fees of 4% or less would likely allow them, without heightened scrutiny of the court, (unless there were an objection to fees made) so 2.5% fee for an institutional trustee seems within reason.

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    My parents deceased in Nov. 2012 and Jan. 2013. They had an estate worth approx. $150,000 in investments to be shared by 2 siblings equally. There was no real property involved, meaning there were no deeds or land involved in their estate.
    My elderly parents did have a trust. This trust was never filed. It was, however, notarized. Does it need to be filed in CA in order to be effective?
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    Christopher C. , Elder Law Attorney answers:
    No. A trust may be administered even without court involvement, provided the named trustee now living is willing to act, and the investments have been "placed" into the trust - so as to constitute a trust estate. Contact the manager of the investments to determine if: (1) they are held in your folks' names, or if the Trust schedule of property includes the investments in the list of assets. If neither applies, consider using a small estate affidavit and comply with the conditions for its use in order to transfer the assets to the beneficiaries equally.
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    Alice M. , Elder Law Attorney answers:
    Not a problem!! Trusts in CA are not "filed" as they are revocable All that is required is that it be notarized.
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    Ronald A. , Elder Law Attorney answers:
    The trust does not have to be "filed" in order to be valid.The successor trustee(s) have a duty to "lodge" the trust with the county clerk, but that has nothing to do with the validity of the trust.

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    My Mom has passed away. Her trust says the trustee is to be paid a reasonable fee for her efforts. What is considered a reasonable fee for trusteeship in the State of California?
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    Derryl M. , Elder Law Attorney answers:
    "Reasonable compensation" for a trustee is as follows: 1. A professional fiduciary receives approval by the court to charge his/her standard rates for hours worked in the capacity -- generally from $90-$150/hr. 2. A family member or friend who is not a professional fiduciary can charge from $25-$50/hr. and it will be approved by the court is any of the beneficiaries challenge the stipend. More than that will have to be defended with evidence that the higher rate is deserved. .
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    Naomi C. , Elder Law Attorney answers:
    That's a very good question, and one that I am asked quite frequently. What is considered "reasonable" will depend upon the fact and circumstances of the case as well as who needs to agree to or approve the trustee's fees. Here are some basic guidelines: 1. If you want the IRS to agree that the trustee's fees are reasonable (and therefore a deductible expense) then we typically cap the fees at about 1% per year of the assets under management by the trustee. 2. If the trustee needs court approval to be paid, generally the trustee will need to keep accurate time records and submit a bill based upon the time actually expended in adminitering the trust. Courts in the SF Bay Area will typically allow family or friends who serve as trustee to be paid at approximately $35/hour. 3. If the trustee is a bank or private professional fiduciary, then they will have a published fee schedule setting forth how much and when they get paid. 4. If a family member is serving as trustee and will need their fees approved by other family members who are beneficiaries, then we generally use the parameters set forth above as initial guidelines and request fees at an amount that is high enough that the trustee feels he or she had been adequately compensated for the services that were provided but low enough that it won't cause a problem with the beneficiaries. I hope that helps.

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    My parents both are in their 80's and both have had knee replacements & hip replacements. if I leave my job to serve as caretaker, will I be able to receive compensation for that?
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    Richard B. , Elder Law Attorney answers:
    Texas usual policy for payment to children for the care of their parents is to treat those payments as uncompensated transfers, gifts, and access a penalty. In other words, Texas policy: the children have an obligation to care for their parents without compensation. If you take compensation then keep a journal listing in detail with receipts if available all of what you are doing for your parents, mileage, statement that you gave up your job in order to take care of them, get employment records. Have an agreement payable on a monthly basis outining what you will be responsible for. Change your address to theirs and have your mail, bills etc. go to that address, voter registration card, because if you do this long enough, 24 months, than they may be able to transfer their house to you as a caregiver child. Get help doing this as there are issues that need to be addressed. If you are an independent contractor, then they would need to issue a 1099 to you in January and you would have to report the income on your tax return. You could also be deemed an employee in which case they would have further obligations as far as withholding, again get advice from a tax professional. Good luck!

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    I am the trustee for my cousin's irrevocable trust. With my cousin's consent, I invested in a business deal. The deal turned out to be a fraud and we lost all the money in the trust. Am I responsible here? Criminally responsible? Financially responsible?
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    Patricia B. , Elder Law Attorney answers:
    A Trustee is a fiduciary who has a duty to the beneficiaries to administer the trust funds and invest prudently to provide a reasonable current return whle protecting the assets for future distribution to remainder beneficiaries. Usually the trust contains langauage as to the Trustee's responsibilites. If you invest speculatively, the beneficiaries could sue you for negligence in a civil suit; however, it is rare that it becomes a criminal matter unless there are elements of theft in your actions. In your case, however, you said you had your cousin's consent. This would negate any claim he may have, but if there are other beneficiaries, they could claim you acted imprudently and pursue a civil claim agains you. The reasonableness of your actions would be the major issue here.

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    I am a beneficiary of a trust in California. Am I entitled to a copy of the federal tax return form 1041?
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    Alice M. , Elder Law Attorney answers:
    If you are a current (income) beneficiary, you should be provided copy of 1041 with the K-1 which reflects any share of income & expenses assigned to you

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    A stroke victim wants to create a trust in Washington State (WA). What amount should he hold in assets to make a trust worthwhile? The stroke victim, a family member, and his wife went to a free workshop. What dollar amount would you recommend in order to create a trust as other family members think a simple will would do?
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    Richard S. , Elder Law Attorney answers:
    This is not a simple question to answer. Ideally, you need to meet with a lawyer who is skilled in complex disability planning and the use of special needs trusts for a disabled spouse. The issue is not how much should be placed into trust (it really doesn't matter) - the issue is the structure of the trust. The disabled and well spouse should create a comprehensive estate plan which includes a special needs trust in the Will of the well spouse so that, upon the death of the well spouse, assets will be placed into the trust for the benefit of the ill spouse and, if properly drafted, allow that ill spouse to qualify for Medicaid benefits and use the trust to supplement basic benefits to insure a good quality of life for the ill spouse. Part of the plan must include a discussion about available public benefits for the ill spouse to prevent impoverishment of the well spouse, which will surely occur absent a comprehensive plan. The special needs trust is part of such a plan; however, there is no trust you can create which will exempt assets from Medicaid inclusion except in the context of a good, thorough disability plan. There are no on line forms available for this level of planning. You must seek qualified counsel to assist with a good, overall plan to protect the ill spouse and preserve assets for the ill spouse. The best way to find a qualified lawyer is the same way you find a good physician. Ask other lawyers. We know who is best skilled to offer this assistance. Advertising is not at all useful as you seek out expertise. Referrals are.

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    My husband set up a life insurance trust. He labeled his sister as his trustee. What ramifications does this have? Why would my husband set up his life insurance trust this way?
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    William B. , Elder Law Attorney answers:
    Typically life insurance trusts are set up to remove life insurance from a person's taxable estate. In other words, they are used to shelter life insurance proceeds from federal estate tax. To accomplish that goal neither the person who is insured (your husband) or his spouse (you) can be the trustee without jeopardizing the tax planning. Of course there may be many other reasons he selected his sister as the trustee. For example, he might be concerned about the possibility you will remarry or that you will spend the insurance money foolishly. There is no way to know for sure unless you ask him or perhaps the attorney who helped him prepare the trust agreement.

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    I am trustee of two trusts that total $2.3 million dollars. Neither trust specifies the amount of compensation to which I am entitled. Both trusts, however, say that I am entitled to compensation but do not specify the amount in the signed agreement. What can I expect in FL?
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    Horacio S. , Elder Law Attorney answers:
    This is what Florida Statutes, section 736.0708 (1) states: If the terms of a trust do not specify the trustee’s compensation, a trustee is entitled to compensation that is reasonable under the circumstances. If your services are ongoing then I would set an hourly fee for your services. Depending on your experience, you could charge $150/hour for the work that you do. If your services will not be ongoing, then I would argue that you are entitled to a percentage, 1-2%, of the trust corpus.

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    My parents were the trustees for an estate. Unfortunately, the documents attesting to this are lost. At this point, both my parents are both dead. I am getting a 1099 for money and stocks that are in the trust but I can't get the money. What should I do?
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    Joseph F. , Elder Law Attorney answers:
    Take a look through your parents records for a form 1041. If there is a schedule k-1 attached to the return, find out who it is addressed to. Then contact that person to see if they received their 2012 k-1? During your conversation you can check to see if the beneficiary has a copy of the trust agreement. Even if he or she doesn't, you will need to file a estate/trust tax return as soon as possible.
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    William B. , Geriatric Care Manager answers:
    Usually Estate trustees would have been recorded, usually in the County or Township where the Estate was recorded. This would be your first step. I would also obtain a copy of the death certs. on your parents and send copies along with a copy of a Power of Attorney or proof of executorship that may exist. Good luck.
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    Rosemary F. , Elder Law Attorney answers:
    Whoever is issuing the 1099 may have a copy of the trust terms; or possibly the attorney who originally created the trust. If no one can locate a copy to determine what the trust provides for the appointment of the successor trustee (or possibly what the trust says about distribution to the trust's beneficiaries), then an answer lies in the PA Trust Act which permits you as an interested party to take the matter before a judge to get the issues clarified. You would file in the County Court where the trust originated.

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    I am one of three children who are to be equal beneficiaries of our father's living trust. My older brother is the trustee. But it has recently come to my attention that my father did not record one of his properties within the living trust. We are all stuck wanting to get this property recorded within the trust. We are looking for an effective professional in and around Palm Desert who can help us with this trust and estates issue.
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    Diane K. , Nurse and Care Manager answers:
    Julia B. 760-340-****, KImberly L. 760-776-****, Lance E. 760-773-****.

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    I am the trustee for an estate. I am interested in going through the process of making a person who is currently a minor a beneficiary of a house upon reaching 21 years of age. How should we rewrite the trust so that the minor is put on the deed when he becomes 21 years old?
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    Michelle B. , Elder Law Attorney answers:
    Please contact an elder law attorney in your area or even me before you do anything. Your reasons and the entire situation should be discussed with an attorney since there are many ramifications to adding someone to a deed. There may be other ways to accomplish what it is that your goal is to achieve.
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    Robert S. , Elder Law Attorney answers:
    I have to admit that the question is confusing. Is this a revocable trust for a living person or a trust for a deceased person? In a normal revocable trust where the settlor/grantor is still alive, you simple amend or restate the trust to accommodate your needs. You can simply add a statement to that effect i.e. when X reaches the age of 21 his interest in Y property shall vest and the trustee is directed to convey Y property to him, in fee. I would strongly suggest that this type of drafting be done by an attorney and an attorney should review the situation as other issues may be relevant that have not been discussed in the question posed. If you would like to chat more, please call our office .

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    The Trustor (Grantor) is desceased. He appointed his wife as Successor Trustee and she is deceased as well. Their son (Tim) was named as alternate Successor Trustee after his mother and he is now deceased. There are 4 siblings left as beneficiaries of this Trust. How can one of them become a Successor Trustee?
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    Richard B. , Elder Law Attorney answers:
    If no other individuals or corporations are named in the trust, then the trust document should provide for a court or judge the authority to appoint a trustee of the trust. This will be a provision in the trust.

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    My dad recently died. I am the executor and trustee of his estate. I am having problems doing all the work it takes. Is there a service that helps people with this? Who provides service for doing work on trusts that are messed up?
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    Dan K. , Elder Law Attorney answers:
    I am assuming that you have been appointed as Personal Representative (Executor) by the Snohomish County Superior Court (also assuming that your father resided in Snohomish County). If you have not been appointed as P.R., you need to consult with an attorney to either be appointed, or to get someone else appointed. If you are serving as Trustee and/or P.R., there is no requirement that you have to continue to serve. You are free to resign. Usually the trust document or the Will will designate the person who will serve as such if you resign. Before you resign, I would recommend that you consult with an attorney in the Snohomish area who is familiar with trusts and estates. Very likely you can hire individuals to do much of the work, including preparation of the home for sale, or even accounting work. That would hopefully leave you available to manage the process and make certain that everything is done properly in accordance with your father's wishes. I suggest that you contact my friend, Barry M., an attorney with offices in Everett. Good luck to you.
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    Richard G. , Senior Issues Advisor answers:
    Your situation is all too familiar. Managing one's own affairs is challenging and when called upon to manage the affairs of another it can be overwhelming. The good news is there is help. Law firms such as ours offers a full line of fiduciary support services to assist Executors and Trustees. Regarding fixing "messed up" trusts, Washington state has a set of laws referred to as TEDRA, (Trust and Estates Dispute Resolution Act) that has proven to be very beneficial in dealing with trusts that are not working as they were intended. We have considerable assistance in this area of law as well. For all your estate and trust settlement needs, give us a call for your FREE initial consultation.
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    Barbara B. , Geriatric Care Manager answers:
    It would be appropriate for you to consult with an elder law attorney who is well versed in trust documents.

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    My parents' realty trust contains CDs. Can property such as CDs be integrated within a realty trust?
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    John T G. , Elder Law Attorney answers:
    Ultimately, it is going to depend on the language of the trust. I would have the trust reviewed by an experienced estate planning attorney to determined whether or not the trust will have the power to deal with assets other than real estate.
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    Carol K. , Elder Law Attorney answers:
    Most trusts will specify what type of property can or cannot be transferred into the trust. I believe that if the trust does not specify, then it can hold CDs. However, you should be aware that a realty trust is a pass-through entity -- in other words, the beneficiary of the trust holds legal title to the property, not the trustee. The trust does not avoid probate, which is the case with a funded revocable trust, and it offers no protection from creditors, which may be the case with a properly drafted irrevocable trust.
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    Susana L. , answers:
    Most trusts will allow you to place anything you want within the trust. I would, however, want to review your trust to determine whether or not it is set up exclusively for real estate. If not, then, in theory you could include CD's in the trust. You also need to contact the bank involved to do this. It would be wise for you to contact the original attorney who drafted the trust, or another attorney to review it to ensure that what you want to do is allowed under the particular trust. There is one more question your attorney should be able to answer, and that is if Medicaid is a consideration in your life, then is this transfer wise at this time? The attorney best able to answer your question is one who specializes in elder care law or estate planning, or both.
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    Susana L. , answers:
    Generally speaking a trust can contain anything you put into it. However, there are specialty trusts for real estate that should only contain that. You do not mention what kind of trust your parents have. The question is best answered either by having the attorney who originally drafted the trust review it, or if that attorney is not available by having an elder care/estate planning attorney review it. Some attorneys will give you a period of time for a consult in a matter like this, without charge. Others will charge a small consult fee.

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    If I have an irrevocable trust, do i have to go through probate to make changes?
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    Donna L. , Elder Law Attorney answers:
    The answer depends on what the trust says. Does it allow amendments and/or revocation?
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    Martin B. , Elder Law Attorney answers:
    No.
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    Matthew S. , Elder Law Attorney answers:
    No, if you have a living trust, and all your assets are in the trust, your loved ones do not have to proceed through Probate after you pass away. However, there are times when Probate is a welcome expense because transfers through Probate are non-penalizing transfers for Medicaid for a surviving spouse. Transfers to and through a living trust are penalizing transfers, which could subject a surviving spouse to years of ineligibility for public assistance programs.

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    I am to inherit a property that was held in a trust fund if I sell it as soon as possible, do I pay capital gain taxes? Are there any other tax implications?
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    Elisha W. , Elder Law Attorney answers:
    It depends how the trust was drafted. If the trust was drafted in a way that the assets were still part of the Grantor's taxable estate, then you should not have to pay any capital gains taxes on the appreciation. If not, then you will have to pay capital gains taxes on the difference between the Grantor's cost basis and the amount you sell it for. You should consult an Estates Attorney or a qualified accountant.

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    My father appointed me Trustee for all of his assets, including those appointed by the court for his decceased father. What happens when I die?
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    Ira K. , Elder Law Attorney answers:
    If the trust does not appoint a successor trustee, a beneficiary of the trust, or your executor, can petition the Surrogate for the appointment of a successor.
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    Sonya M. , Elder Law Attorney answers:
    It depends on what the trust says

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    I went t to a conference given by lawyers and they are saying that in Alabama we would be better off with a Living Trust rather than a Will. They say for a limited time they are running a discount on all the required legal fees for the Living Trust. This discount is for the people that attended their conference. I think their cost is a lot of money if I only need a will. What should I do?
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    Leslie F. , Elder Law Attorney answers:
    In Alabama, generally a well-drafted Alabama will is less expensive and easier to put in place than a living trust. Living trusts are being "sold" at those kind of seminars using fear tactics. One of the fears instilled at the seminar is that you want to avoid probate. Not so in Alabama. We are probably one of the most probate-friendly states, if the deceased had a well-drafted will...and many times a will does not have to be probated. The costs for the preparation of a "one-size fits all" trust sold at the seminar is often much higher than a will, or even a living trust prepared elsewhere.

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    My father passed away from lung cancer asbestos in 2006. He was exposed to asbestos from working at a shipyard for 20 years. Right now, my sisters, brothers and i are receiving trust fund money. How long will it last?
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    John L L. , Elder Law Attorney answers:
    Sorry, can't give you an answer. The answer depends on how much is in the trust fund, how much (if any) is still coming in (e.g., structured settlement), how it's invested, and how much you are withdrawing.

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    On an appeal to Superior Court in California, the judge held the trustees of an irrevocable trust personally responsible for a rental deposit. Is this legal?
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    Robert F. , Elder Law Attorney answers:
    Trusts are governed by the principles of equity. Depending on the specific fact situation a trustee could be held liable for debts created by improper investments the information regarding this responsibility for loss is contained in Restatement of Trusts Sections 210-213 and the Probate Code of California.

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    My father died in September of 2012 and I am the executor/trustee of his will. My sisters and I will share equally in the estate. in the will, my dad wanted trusts set up for my two sisters. For one of my sisters, I want to terminate the trust and give her a lump sum since her circumstances have changed. How and when can I do that?
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    Richard S. , Elder Law Attorney answers:
    It is difficult to answer that with any certainty without reviewing the will and/or trust documents. Purely as a general matter, if everyone involved is at least 18 and they all consent (in writing), the trust can be terminated and the trust assets distributed. But everyone must consent. If you can't get them to consent, you may be able to get a court order. Also, as a general matter, if the trust assets are so minimal that it is not worthwhile to continue the trust, the assets can be distributed and the trust terminated. But it really, really matters what the documents actually say--so it would be critical to review them before giving a definitive answer. If the trust was created by a will, it is usually the case that the estate should first be closed.
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    Jonathan F. , Elder Law Attorney answers:
    Without seeing the actual document(s) I can't give you a definitive answer. I can't tell from your question if your father had a separate living revocable trust or trusts under his will for your sisters. Typically, there can be alternatives permitting you to make complete distribution to your sister, depending on your trust distribution powers. Further, there may be a clause that gives the trustee the right to terminate a trust and make full distribution if the trust assets are so small that the expenses of trust administration exceed the income the trust earns. Again, without seeing the legal document, I can give you a better answer.
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    Mitchell P. , Elder Law Attorney answers:
    No attorney will be able to answer this question without more information. The issue is complicated and may actually require a court order. I suggest you seek an appointment with a qualified attorney with experience in wills, trusts, probate and estate administration.

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    My mother's health has begun to deteriorate. She owns a modest home in a retirement community in Florida and has approximately $100,000.00 in cash in the bank. Is it possible to protect her assets by placing her home in a trust? She would like to allow me to live in the house until my passing and then the property would go to her grandchildren to do as they wish. I have no idea what to do with her cash. Suggestions would be appreciated
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    Patricia O. , Nurse and Care Manager answers:
    Www.naela.org to find an elder law attorney in your area
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    Donna C. , Nurse and Care Manager answers:
    My suggestion is to speak with an Elder Law Attorney. There are many things you need to consider, and they have all the rules regarding medicare and other govermental payor programs that she may need at some point for her health care needs. There are several excellent attorneys in your area. Look online for Elderlaw attorneys specifically. They deal with setting up trusts and other issues. Best of luck to you and your mother.
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    Anthony F. , Elder Law Attorney answers:
    You must contact a Florida Elder Law Attorney in order to deal with this.

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    My wife and I have a trust agreement that was prepared by an attorney in Florida where we were living at the time. All references to Florida have now been changed to Texas. How do we get it officially accepted by the State of Texas?
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    Hunter S. , Elder Law Attorney answers:
    R. Scott S. has it exactly right. Make sure to file it with the appropriate county if you have any real property in the trust.
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    R. Scott S. , Elder Law Attorney answers:
    As long as the trust document is signed by the settlor and the trustee it will be valid in Texas. If you amended the trust to read that Texas law controls, then the Texas Trust code will apply otherwise it would be the Florida Trust code if no change is made. Make sure that titled property you want in the trust is titled in the name of the trustee. eg., cars, financial accounts, land (with or without homes)

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    I want to start a trust fund to protect my assets, I was told there is a five year waiting period to withdraw funds? Is this true?
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    John G. , Elder Law Attorney answers:
    Assuming the proper type of trust is established and funded, in Massachusetts, there is a 5 year look-back from the date the specific asset is funded (transferred) into the trust. For more, go to my web site
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    Robert P. , Elder Law Attorney answers:
    This is not true.
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    Kathleen H. , Nurse and Care Manager answers:
    There are many types of trust funds...the five year period refers to accessing state Medicaid services. I would consult with an attorney for details on various types of trusts and limitations.
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    Patricia B. , Elder Law Attorney answers:
    If you are seeking to protect your Assets for Medicaid and the Trust is an irrevocable Trust there is a five year look back period. Withdrawing funds during and after the five year period must be done in strict conformity to the Trust document and should be set up by an Attorney who specializes in Elder Law.
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    RJ C. , Elder Law Attorney answers:
    yes; there is five year lookback for any transfers into a(n) irrevocable trust or gifts. THIS IS NOT LEGAL ADVISE. SEE A LAYWER.
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    Michael C. , Elder Law Attorney answers:
    If you want to protect your assets from future medical/nursing home expenses then there is a 5 year look back period. This means that you can transfer assets into an irrevocable trust but you need to remain healthy and stay out of a nursing home for a minimum of 5 years in order to protect the assets that you have transferred into the trust.

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    My parents co-signed a private school loan. We just found out that they collatorized their home to do so. Can Sallie Mae break the trust if it ever comes to that?
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    Pam D. , Nurse and Care Manager answers:
    This is something you really need to consult an elder law attorney about. There are several in the Palm Beach County area and can be located via an internet search. Best of luck to you.

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    My mother is 80 yrs old and I advised her to create a trust. In my mother's trust, I was named a Second Successor. My sister and brother were named Successor Co-Trustee. What does it mean to be a Second Successor Trustee?
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    Evan F. , Elder Law Attorney answers:
    To answer your question requires that I first address the question of what is a trust and what is a trustee. A trust is an arrangement in which one person (the trustee) holds the property of another (the Trust creator, also called the Settlor or the Grantor) for the benefit of a third party (the beneficiary). A trustee may be either an individual or a corporation. The original trustee is the person who initially manages the trust assets for the benefit of the trust beneficiaries, as provided by the terms of the document that created the trust. It is very important to understand that trustees and beneficiaries are completely different from a legal standpoint – the trustee manages the property for the benefit of the beneficiaries. A trustee cannot simply use the trust assets for the benefit of himself or herself – the trustee must manage and use the assets for the benefit of all the beneficiaries of the trust as specified in the trust document. Many people get confused about this because the trustee(s) and the beneficiaries are often the same people, but this does not mean that they serve the same function. When someone creates a trust, it is good practice to name not just an initial trustee or co-trustees, but also substitute trustees (call successor trustees) to take over as trustee and to continue to manage the trust and its assets in the event that something happens to the original trustee or co-trustees. Trustees have what is called a fiduciary duty, which is a legal obligation to the beneficiaries of the trust, to follow the terms stated in the document that created the trust. There may also be State statutes dealing with the duties of a trustee. Once the original trustee is unable or unwilling to act, the successor trustee(s) will take over. In this situation it sounds as though your mother is the current trustee and your brother and sister are first in line to act as successor co-trustees once your mother is no longer able or willing to manage the trust. You say you are named as the “second successor trustee.” This might mean that you take over as trustee only if both of your siblings become unable or unwilling to act as trustees, or it might mean that you come in as a co-trustee if one of them is unable or unwilling to act as a co-trustee. What it means depends entirely on the wording of your mother’s trust, which should clearly spell out under what circumstances you become a trustee. Unless and until you actually become a trustee, you have no duty or obligations whatsoever with regard to the trust. Going a bit beyond the question you asked, it is also important to understand what type of trust your mother has. Most likely she signed a revocable living trust. The revocable living trust is a very useful and popular estate planning tool, recommended by tens of thousands of attorneys across the U.S. and used as the central estate planning document by millions of Americans. The primary benefit of the revocable living trust is that assets properly funded into such a trust are protected from the expenses and complexities of probate. However, what most people don't realize is that assets in a revocable living trust are NOT protected from lawsuits or from the catastrophic expenses associated with nursing home long-term care. For an 80-year old such as your mother, a more appropriate trust is probably the Living Trust Plus™ Asset Protection Trust, which would protect your mother’s assets from lawsuits, auto accidents, creditor attacks, medical expenses, and -- most importantly -- from the catastrophic expenses often incurred in connection with nursing home care. Even though the Living Trust Plus™ is irrevocable, your mother would retain a high degree of control over her trust assets because: •she can be the trustee if desired; •she has the right to receive all of the trust income; •she has the right to live in and use your real estate; •she has the right to change trustees; and •she has the right to change beneficiaries. Additionally, as is the case with all non-charitable irrevocable trusts, the Living Trust Plus™ can be modified, or even terminated, upon the agreement of all "interested parties" -- which are typically the trust creator, the trustee, and all trust beneficiaries.
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    William W. , Elder Law Attorney answers:
    Query: Who is the initial Trustee? It appears that if the unknown initial Trustee drops out then the two Succesors take over; and if one of them drops off then the Second successor will take the vacant slot.

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    I am suspicious of my father's wife not having his best interest in mind. Our father is 81 years old and was married to our late mother for 48 years. He married another woman four years ago. She seems to be interested in alienating his adult children from him and spending his money. What paper work do we need to have in place to monitor our father's estate? My brother is power of attorney and executor of my father's estate. He has a safe deposit and at least 2 bank accounts with SunTrust Bank. We also have seen signs of dementia in him.
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    Ruthann L. , Elder Law Attorney answers:
    Depending on your father's capacity, there may be several options including Guardianship and/or Conservatorship, or establishing a Trust for his benefit. I recommend you meet with an experienced elder law attorney to determine how best to proceed.
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    Victoria C. , Elder Law Attorney answers:
    If your father is not legally competent, then a legal conservatorship can be sought wherein the court would appoint a conservator and then have oversight of how the assets are invested and spent.

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    Must a trustee be a Texas state resident for an irrevocable trust formed in Texas?
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    Angela T. , Nurse and Care Manager answers:
    You would need to speak with an an estate planning attorney or elder law attorney in Texas. May I suggest Lori Leu and Associates or John McNair . Thanks.
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    Carole L. , Geriatric Care Manager answers:
    Depends on what state you are in. If you want the right answer, you need to consult an eldercare attorney who specializes in Medicaid Planning. A lawyer who does probate is not good enough. You need the Medicaid planning specialist. Ask your area Agency on aging, or other lawyers for a recommendation. Good luck!

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    I am the father of a 1 year old. My wife and I have no documents like wills, trusts, or health care proxy documentation in place. What steps would you suggest we take in order to get our orders in affair? We live in Manhattan.
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    Elisha W. , Elder Law Attorney answers:
    You should contact an Estate Planning Attorney. You should make sure you both have a Will, Power of Attorney , Health Care Proxy and possibly a Living Will.

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    I have the Quitclaim deed for my elderly parents' house in my name. The property taxes are also in my name. But now, I want to sell house and no one seems to know where the trust related to the house is. Is there a way for me to find out where the trust to my parents house is? No one seems to know not even attorneys!
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    Laurie O. , Elder Law Attorney answers:
    If the house is in your name and the property taxes show it is in your name, then why do you need the trust? The house is not in the trust if the paperwork shows it is in your name. If it is in your name, you have the right to sell the property.

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    My 94 year old great uncle has a caregiver who I do not trust. I am afraid she has access to his bank accounts and can run off with his money since he is quite wealthy. I suspect she stole around 400K so far because I saw a statement laying around his apartment with significant withdrawals...
    When I asked my uncle about it, he appears a bit clueless. Not sure if he has dementia or what, but he's starting to get a bit out of it. I mentioned it to my cousins and we are trying to figure out what to do. What should I do? Your help is appreciated.
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    Barbara P. , Geriatrician MD answers:
    If the patient has decisional capacity and understands - he has the right to do what he wants with his money. If the patient is "clueless" about what is happening with his money - the bank needs to be notified about who is authorized to take money from his accounts. The first step is to have a medical evaluation of the patients decisional capacity and to know if the patient has authorized a power of attorney to anyone to manage his finances. If that POW was not written as "durable" it is no longer valid when the patients loses mental capacity. If there is nobody besides the patient legally in change of his finances, the bank can give you forms to complete for what is called a representative payee- the doctor will need to complete a portion stating the patient cannot manage his own finances. You should also call Adult Protective Services who can walk you through this process .
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    Judith G. , Elder Law Attorney answers:
    Please call our office for information on reporting to the local elder abuse unit in the local area. We can also provide you with a POA giving you ability to restrict access to your uncle's account or commence a Guardianship if that is not successful.
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    David G. , Elder Law Attorney answers:
    Contact the local District Attorney. Many now have someone that handles claims of elder abuse including financial abuse.
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    Sandra S. , Nurse and Care Manager answers:
    Hi, I am very sorry for your unfortunate situation. I would suggest removing the aide from the case, but keep all your personal information and records of her. Report it to the police, investigate the situation more and collect evidence of unlikely expenditures by your uncle. Call the bank and ask to see security tapes of withdrawals and keep all the bank statements. Report this case to the Department of Health so her case will be investigated.
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    Mary Ellen S. , Geriatric Care Manager answers:
    If it is possible, you should visit regularly, and, with his permission, check his accounts. If the caregiver that you suspect is from an agency ask them if they did criminal check before she was referred for care of your grand-uncle. If an agency wasn't used you should consider using one. They ususually do a criminal check and so at least you know the past. Also checking references yourself is a good idea.
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    Mark Z. , Geriatric Care Manager answers:
    I would seek to gain access to the accounts via securing a durable power of attorney. That should be the first step. Should your uncle not have sufficient competence to execute such a document you'll need to get a guardianship.You want to ascertain what's going on before blaming the home attendant. There could be a third party involved. Your uncle retains his right to spend money as he wishes. Should you determine there's foul play, you need to contact law enforcement. Concurrently, at that point you ought to either move the assets out of access to everyone (including your uncle) or seek guardianship to do the same. Feel free to call me to discuss strategy further.
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    Lawrence F. , Elder Law Attorney answers:
    If your uncle is subject to elder abuse, it may make sense to apply for guardianship or involve adult protective services. See additional info at our website.
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    Gary G. , Elder Law Attorney answers:
    If you have a power of attorney you can move funds around - if he's competent he can transfer to trust, or you can with power of attorney. Otherwise, you might need to look at a guardianship.
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    Elliot S. , Elder Law Attorney answers:
    I am an eldercare lawyer. I can bring a guardianship proceeding under Article 81 of NY's Mental Hygiene law to deal with this problem.

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    I am pretty sure that my parents have set-up a trust, though I am not sure what type (either a living trust or irrevocable trust). I have been talking with my mother about moving some more of her assets into that trust. Can she just deposit money straight it? Is there a particular process? I am inclined to tell her to move alot of her assets in. Does that make sense?
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    Elisha W. , Elder Law Attorney answers:
    You really need someone to review the trust. Money can be transferred into the trust. What your is objective? Are you looking to avoid probate? Medicaid? Tax Planning? Depending on the language in the trust, a transfer can create a taxable event. You need to review the trust and be more specific so we can answer you more precisely.
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    Sonya M. , Elder Law Attorney answers:
    Your mother can deposit straight in,buit whether it makes sense to put in a lot, I cannot say because the answer depends on what type of trust, and for what purpose your mother wouldbe putting the money in
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    James M. , Elder Law Attorney answers:
    It's really important to know whether the trust is revocable or irrevocable. Transfers into an irrevocable trust constitute transfers for uncompensated value and will accrue a penalty if your mother has the need to apply for Medicaid any time within five years after the transfer is made. She certainly should not make such a transfer without first consulting with an elder law attorney in her State.

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    My father's next-door neighbor, a nice enough lady, has been very friendly towards my father. While that is a nice thing, my siblings and I are pretty sure that she is making an effort to sweeten him up so that she and her family can by his house for less than it is worth. I hate to be paranoid, but I do know that she has spoken to him about selling the house to her family and the numbers mentioned are not fair. While nothing has been signed as of yet, it is our concern that he might sell the house out from under himself or otherwise deprecate the estate. I have tried to explain to my father, that while she may be a nice lady, he should let us, his kids, make these decisions. Of course, my father does not like hearing that. Is there a structure that we can form, such as a trust or corporation that would prevent my father from acting alone (foolishly)? Is a trust better than a corporation when it comes to reducing estate taxes? What can I do to protect my father?
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    Carol K. , Elder Law Attorney answers:
    If your father is competent, why don't your and your siblings ask if he would give you the right to buy the house for the same price the neighbor offers? This would be the diplomatic way of avoiding an argument about his business acumen and the neighbor's motives. And if you believe the house is truly undervalued, you would be getting it at a bargain. I agree that you need to consult with an elder law attorney -- preferably with your father.
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    Brian S. , Elder Law Attorney answers:
    I recommend that you discuss the issue with an Elder Law Attorney. There are certainly ways to preserve the family residence and mitigate estate taxes while your father remains competent.

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