Viewing by month: July 2008

What To Do About My Revocable Trust?

It's been  recommended to me that I Quit Claim my home held jointly with my wife to my revocable trust. Do you agree that that is the best way to go? What's the difference.  Either way the house would go to my wife if I die before her.
Thank you for your advise. - T

T:
Great question!  Did you have a lawyer assist you in the design and drafting of the trust?  If so, I suggest you first consult with him or her for guidance.  The reasons most people choose to retitle asset into a revocable trust is control now while you are alive and well, later in the event you become incapacitated, and eventually - after your death.  As with any asset, if no one has legal authority to control the asset when the owner(s) become incapacitated or after death - then probate court process becomes necessary.

Even though your wife will enjoy the use of the house if you predecease her, what happens when you are both gone?  If you do not retitle the house to have it controlled by your trust after you and your wife are both gone the next in line to benefit from that asset will have to go through the probate process to transfer the house.  Additionally, what happens if you and your wife pass in a common disaster?  In my experience it is generally best for the property to be titled so that probate process is unnecessary.

The answer to your question could change depending on certain facts.  Some additional questions might include the following: 1) Do you and your wife have one trust or two?; 2) Do you have a taxable estate?; 3) Who gets the house after the second spouse passes?; 4) Are either of you have any reason that puts you at high risk of being sued? 

In our office we generally do not use a Quit Claim Deed to fund the marital home into a trust.  Depending on the specific facts we use a few different options.  For us the closest equivalent would be a Warranty Deed.  Other methods are also possible to obtain the specific outcomes you desire.  Your attorney should be in the best position to know your wishes, your facts and your needs and have the best ability to provide you with specific answers to your questions.

I hope this helps.
All the best,
Sandy

My Aching Back: Do I Go to Court?

To: Ask the attorney,
My name is John. I am 50 years old. I had a major back surgery at mid 30 which i had to have a pain pump installed in 2000 they changed my pump in April 2008 with which they messed up the surgery and caused me great prolbems with all parts of my life after i went to another dr and he fixed the prolbem in may 2008 the prolbem started again were fluid was leaking from my spine i would like to know if i can hold the first dr for all my trouble please let me know.

THANK YOU VERY MUCH
J 

J:
Thank you for your question and sorry to hear about your problems.  First, I recommend that you continue to seek to obtain the best possible medical care available to overcome the problems you are having.  Second, I assume you are asking a lawyer because you thinking about legal recourse, that being a medical malpractice claim.  If so, I suggest you consider hiring a lawyer who focuses his or her practice on such claims.  That area of legal practice has become very specialized.  Also, be aware that there are strict rules about how and even the timeframe in which such a claim must be filed.
I wish you the best and hope you find relief from your suffering soon!
Sandy

Selling the House

Good morning.  My sister has recently told me that there is not going to be as much money in my mother's estate as I thought and I have never said anything about it. Now my sister said she is going to sell mother's house and it was supposed to stay in family, it's an income property. My sister said that she has someone who will buy it. My name is on the deed. I think my niece and my sister think i forgot about signing the deed. My mother is not doing very good, does not remember and is failing. My sister is working on putting my mother in nursing home which she promised she would never do. I would like to be ready for anything that might happen.
 
1. If my sister asks me to sign the deed what should I do?
 
2. Should I sign my name if they don't ask me to sign deed, and take care of it when my mother passes away?
 
Sincerely,
H

Dear H:
Thank you for your thoughtful questions.  The facts you provide raise a long list of additional concerns but I do not feel capable of answering your questions directly without more information.  It sounds like there is more than one person on the deed - is this correct?  Also, it sounds like your sister is telling you that money is needed to take care of your mother and selling the house may help provide extra funds needed - is that correct?  Could your mother continue to be properly and safely cared for outside of a nursing facility?  If so, where?  How would that be paid for?  Is your mother presently eligible for any type of public or private benefits such as long-term care insurance, veteran's aid & attendance, Medicaid?  Does anyone have legal authority to act on your mother's behalf (legally, financially, medically) If necessary?  All of these and more questions would have to be answered before good guidance could be provided. 

My only general answer I can give you concerns your question about should you sign the deed if asked - and even here my answer is, get the advice of good counsel who represents your interests. 

My recommendation is that you are prepared to answer the questions I noted above and for you to hire a qualified attorney to assist you directly with all the above issues.
Sorry I couldn't be of more help.
Sandy

Life Insurance

Hi,

My elderly father purchased a small $10,000.00 accidental death insurance policy from a Life Insurance Company.  The company delayed payment for 4 months while they determined that he actually did die as a result of a fall.  When they finally sent the payment, it was for $2,500.00, not $10,000.00.  The explanation was that the amount was reduced because he was older than 70 when he died.  My issue is that he was older than 70 when he purchased the policy.  He purchased and paid for a $10,00.00 policy, not a $2,500.00.  Is what they did legal?  Also, are they not supposed to pay interest when they delay payment?  One other bit of information that may or may not be relevant, he purchased the policy through a local bank.  Do they have any role in ensuring that Monumental acts ethically?

Thank you for you assistance.

Sincerely,

L

Dear L:

Thank you for your question.  The facts you provide sure make it sound like something fishy is going on.  Review of the insurance contract is the first place I would go as a lawyer.  You may also consider filing a complaint with the State of Michigan since the State regulates insurances companies that write policies inside the State.  The State agency with that authority is the Office of Financial and Insurance Regulation.  Information about the complaint process can be found on the web by clicking here.

I recommend that you also consider discussing this matter with a bank representative as well who may be able to help. Good luck and please let me know what happens.
All my best.
Sandy

Probate Issues & Transfer of Real Estate

I am the executor to my parents will.  My father died about 2 years ago and my mother is now in rehab for a broken hip so my thoughts have turned to what is necessary for me to settle their estate when she dies.

She recently told me that she could not find the paperwork indicating she owns her house (title papers).  Where do I go to get a copy of these and what else do I need to make things easier when I have to administer the will?

I am on her bank accounts at this time.

F

F:

Thank you for your questions. Your first question deals with obtaining a copy of the last deed of record for the property.  These are on file with the register of deeds in the county that the real estate is located.  Some counties have these records available on line. 

Your question about how to prepare for the job of administering your mother's estate after her death is a bit more complicate.  I will break it down into two main sections -

1) probate issues and 2) other concerns pertaining to the transfer of real estate.

1) Probate issues - the Will is the legal document that controls how your mother's assets will be distributed after her passing.  In order for her Will to have legal effect, the Personal Representative has to first be appointed by the Probate Court.  However, the Will only controls assets that are distributed by some other legal means.  For example, if you are a co-owner of her bank account, then you will be the sole owner when she passes without the need for the account to be subjected to the probate process.  Another example is life insurance - it goes to the named beneficiary without the need for probate (unless the beneficiary is her estate). 

2) Other concerns pertaining to the transfer of real estate - these have to be handled very carefully to avoid probate as well as avoid other negative consequences.  There are very good ways to accomplish these objectives, but I could not give general advice on this since each case is different.  One bit of general advice though, two of the most common ways people try to do this is either by Quit Claim Deed or joint ownership.  In my experience, neither of these are the best option.  Some of the negative results that could occur (but can be avoided with proper planning) include: needless extra property and/or income taxation, creditor risks, Medicaid penalties, and personal liability.  I strongly recommend you seek the advice of a competent attorney as to these matters to help make sure things are done right and you do not end up with unintended negative results.

Hopefully this will help.
All my best,
Sandy