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Gary Richard Botwinick

Gary Botwinick’s Answers

4 total

  • I am administrator, legal guardian still hold some money from estate. how do i get money from guardian?

    Legal guarding who was appointed prio to death of my aunt does not want voluntarily turn money to me, she just ignores my request. what do i do? thanks

    Gary’s Answer

    As the administrator of the estate, you have significant power. The best option would be to send a certified letter to the Guardian demanding a turnover of the funds. If that does not result in a rapid response, I would file a Complaint and an Order to Show Cause in the County in which the Guardian was appointed seeking an Order demanding the immediate turn-over of the accounts, as well as a formal accounting of the Guardian's activities in such capacity. She is required by law to file this on an annual basis, as well as upon the termination of the guardianship. N.J.S.A. 3B:12-64 provides that the guardian's authority and responsibility terminates upon the death of the incapacitated person. The statute further requires that "Upon the death of an incapacitated person the guardian shall provide written notification to the Surrogate and shall provide the Surrogate with a copy of the death certificate within seven days of the guardian's receipt of the death certificate."

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  • Is there a statute of limitations regarding settling an Estate?

    It has been close to 7 years since my Mother passed away and the Estate is still not settled. What should the benericiaries do? Is there paperwork we should file? Can bank records be subpoenaed? We feel the Executor abused his power to benefit him...

    Gary’s Answer

    Boy. Seven years is an awfully long time to administer an estate. You should certainly contact a lawyer to explore your options, of which, there are many. Often a simple inquiry to the executor can result in answers and may prod the executor to complete the administration. However, if that proves unsuccessful, then you might consider filing a complaint seeking an order to show cause in the Superior Court. You might seek an accounting and/or the removal of the executor for failing to fully administer the estate. Doing nothing, though, is unlikely to get this matter to move quickly. Enough time has passed and you are entitled to have the estate administration completed in a reasonable time.

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  • As an executrix can i charge the estate a fee

    how long should it take to settle a uncomplicated estate. The property sold in October 2008. The estate is still not settled. What is a reasonable amount to time.

    Gary’s Answer

    Generally, an executor is entitled to a commission for the services performed. The fee is typically a percentage of the estate determined either by specific provision in the will or by statute in the state of probate. Uncomplicated estates can usually be completed within 12-18 months. However, more complicated estates may take longer.

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  • My name was signed illegaly to a franchise business contract & that business owes the IRS back taxes am I leaglly responsible?

    While I was married my husband went to another state & signed my name to a franchise contract then defrauded the IRS over $100,000. The IRS is holding me accountable & resonsible for 1/2 the back taxes. How can I extricate myself from this colle...

    Gary’s Answer

    If your name was forged than it is highly unlikely that you would have liability under that contract. However, it sounds as if the liability that the IRS is seeking from you is for withholding taxes. It sounds like they are claiming that based upon some position which they believe you have with the company, you are considered a responsible person. Section 6672 of the Internal Revenue Code provides that any “responsible person” required to collect and remit trust fund taxes shall be liable for a penalty equal to the amount of the tax that was to be withheld and paid to the IRS (the 100% penalty). This penalty is often referred to as “the trust fund recovery penalty.” Any officer or employee of a corporation who is responsible for accounting for and paying the taxes to the IRS, may be considered a responsible person. If you did not actively participate in the business and were not involved in the finances of the business, then you would have a defense to the IRS position. If the taxes were not trust fund taxes, but rather income taxes which were not reported on a jointly filed income tax return, then you may be able to qualify as an "innocent spouse," which would mean that you would not be personally liable for the income taxes if you meet certain requirements.

    As a former attorney for the IRS, I often deal with these issues. Dealing with the IRS can be scary, so it pays to be properly represented.

    IRS Circular 230 Legend: Any advice contained herein was not intended or written to be used, and cannot be used, for the purpose of avoiding U.S. Federal, State, or Local tax penalties. Unless otherwise specifically indicated herein, you should assume that any statement in this communication relating to any U.S. Federal, State, or Local tax matter was not written to support the promotion, marketing, or recommendation by any parties of the transaction(s) or material(s) addressed in this communication. Anyone to whom this communication is not expressly addressed should seek advice based on their particular circumstances from their tax advisor.

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