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Anthony S. Danna

Anthony Danna’s Answers

16 total

  • I need to take money out of my daughters trust fund for my daughters sweet 16 , what do i have to do

    i was told the money can be used if needed before the age of 18 but it has to be used on her

    Anthony’s Answer

    I sugguest you start by speaking with the Trustee. This is the person or entity that must make the decision whether the trust can "makle" a party for your daughter under the term of the trust agreement. Most probable, there will be no specific language in the trust document that will provide distributions of corpus to pay for such an event.

    There may be language in the trust documents allowing the trustee to have discretion in making such an expenditure. If so, then it is up to the Trustee.

    If no trustee discretion is afforded in the trust document, it may be that "No" is the answer.
    If there is discretion language, the Trustee must evaluate the facts and circumstances within his /her authority granted under the Trust to make a decision. The Trustee must act only within his authority and with the proper due diligence because the Trustee is held to a certain high standard and is held accountable for his actions.

    You or your daughter may ask but it is only the Trustee who has a "Fiduciary" duty.

    Other Considerations:
    1. Who "really" wants the party? If it is you then you may wish to reconsider your request. If it is your daughter, the Trustee and you should have a talk with her about her reasons and whether such a party is the best use of trust funds. This may be a great "Opening" dicussion with your daughter about money and the purpose of the Trust and its limited corpus.
    Good luck!

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  • How can I get my elderly mom back to Brooklyn?

    My elderly mom suffers with mild dementia. She was placed in hospital by Adult Protective Services because of problems at home. My niece took her out of hospital to her apartment in Staten Island. This was done without my authority. How can I get ...

    Anthony’s Answer

    Your only course of action is to hire an attorney who can evaluate the situation after more facts are presented and provide counsel.

    As a start, understand that unfortunately, you lack authority to dictate your mother care plan at this time. The fact that APS is involved and that there is a restraining order suggests that there are family issues and it may not be your doing (no blame assigned). Are you prepared to "ask the Court" for the authority you want? Understand that you must hire an attorney, the cost of which may only be reimbursed from your mother's assets if the Court awards such.

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  • I have a relative in her 80's who I have concerns that she can make decisions by herself.

    I don't believe she is protecting herself financially, and she has not planned for the future ( nursing homes, funeral etc.). She is also a bit of a hoarder, so when the time comes, I'll be left to clean out everything. She has short term memory...

    Anthony’s Answer

    Proceed with caution!

    Your relative (of any age) has the right to her autonomy. It is her prerogative to hoard and not plan for the future. Yes, you will be left to "clean out everything", but only if you accept the responsibility when the time comes.

    With this said, when the hoarding, short-term memory loss and diet issues raise the concern of your relative's personal safety, you may wish to take action - initiate a guardianship proceeding. Before that point however, you may wish to become involved in your relative's daily life and "gently" offer assistance or make yourself available for her to request your help. I hope this is helpful. Good luck.

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  • How can my father in law get reimbursed from his now deceased sister's insurance company for the medical payments he made?

    My father in law was/is the POA for his now deceased sister. She had health insurance through her employer that included some out of network coverage. For the last 4-5 months of her life, my father-in-law paid the out of network home health care a...

    Anthony’s Answer

    Your father-in-law's authority under the POA of his now deceased sister has terminated. A POA dies with its principal. When he paid the medical expenses, he was actually making a loan to his sister. Now he is a general creditor of her estate. Has an estate proceeding been commensed?

    If the estate has assets, he would make a claim aganist the estate.

    As for filing a claim on behalf of his sister with United Health Care, only the estate fiduciary has standing. Your father-in-law does not have standing as an estate creditor to make claim for reimbursement directly to United Health Care.

    One last comment, I would be surprised if the UHC policy covers the cost of home health care for your aunt. My guess is that even if the fiduciary filed a claim and it was not time barred, it would be denied due to lack of coverage.

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  • Can irrevocable trust be changed.

    My husband and his deceased wife created and irrevocable trust several years ago. She passed at the age of 40 and he is now remarried. How do I protect myself in regards to the irrevocable trust?

    Anthony’s Answer

    I would like to give a more direct response to your question but more facts are required.

    You say your husband created an irrevocable trust with his deceased spouse and is now remarried. I am assuming that the reference to your husband being "remarried" he married you.

    Are you named in that irrevocable trust? I will assume, not. Or did your husband retain a general power of appointment in the trust which he exercised in your favor? In order for you to "protect yourself" you must have an interest in the trust. If you have no interest in the trust, the trust does not protect you.

    With this said, and assuming you have NO interest in the trust, the next point to consider is whether your husband holds a continuing interest therein and an objective to protect you with regard to the trust. I am going to assume that your husband does not have a continuing interest in the trust other than being a grantor thereof.

    So, you and your husband can only protect you with regard to his estate by designing and implementing an estate plan, that considers the irrevocable trust and its distributions not to you and/or your children (assuming you have children) and directs an larger share of your husband's estate to or for your benefit given that your will receive no distribution from that irrevocable trust. I hope this was helpful.

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  • What documents are required to legally transfer/sell land in an irrevocable trust?

    As trustee I would like to sell to one of the residuary beneficaries a portion of the land held in the irrevocable trust. Can the residuary beneficary receivng the land be the same one acting jointly with me?

    Anthony’s Answer

    • Selected as best answer

    First, the only way a trustee should convey land owned by her trust is as set forth in the trust document. Usually that is via a sale for fair and adequate consideration in an "arm's length" transaction or as a distribution to a beneficiary. Beware of "self-dealing" issues. What does the trust documents say about "self-dealing?" Keep in mind that just because a trustee is not the purchaser does not take "self-dealing" out.

    The process for selling land owned by a trust is the same as selling land owned by you individually. There is a contract and a closing. Finding a willing buyer and agreeing upon a price/terms is the first step. You may consider using a RE broker to appraise the land and locate such a buyer.

    Selling trust property to a residuary beneficiary requires more care. As trustee, you have a fiduciary duty to all of the income beneficiaries and all of the residuary beneficiaries, not just the beneficiary who wishes to purchase. Trustee cannot "play" favorites unless the trust documents allow such. To protect yourself seek the guidance of counsel. Get an written appraisal. You may consider notifying all of the beneficiaries (income/residuary) about your intentions and ask if they would consent (in writing). You might want to solicit other beneficiaries' interest in the purchase at the set price. You may also consider seeking a declaratory judgment from the court.

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  • Trust litigation--NY

    In a trust litigation where a beneficiary is suing a trustee, does the trustee have the right to take his legal fees out of the trust. Facts: trustee took administrative fees in 2012 for fees the trustee claimed were earned in 1994. There is doc...

    Anthony’s Answer

    The starting point is that: usually a trust provides for the trustee to use trust funds to pay for expenses incurred in the administration of the trust. With this said, the trustee must still substantiate such payment in the course of his/her accounting. As provided by statute, an accounting should be demanded and followed up with a Petition for Compulsory Accounting.

    I suspect that the litigation to which you refer has not resulted in a judgment. I say this because your attorney would have raised the issue of trustee attorney fees and pleaded for a decision in favor of your position.

    Overreaching and breach of fiduciary duty would be reasons for denying attorney fees for trustee's defense of her accounting. Surcharges is remedy for trustee wrongdoing. You state fraud and bad faith; these would are also reasons for denying attorney fees in addition to surcharges.

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  • My mother signed a POA to my Uncle for the Sale of our House. It looks like he took the funds to pay off his debt. Can she sue?

    My mother was hospitalized and while we were trying to sell our house, she signed a POA to my Uncle (he is a lawyer) to complete the deal since we had an all cash offer with a fairly quick closing date. A couple of weeks after the house was closed...

    Anthony’s Answer

    An agent acting under the authority of a POA has a fiduciary duty to the Principal (your mother). Not only is the agent only authorized to act as expressly delineated in the document, he or she must in the best interest of the principal.

    Was there a attorney representing your mother as Seller?
    Who drafted the POA? Was it drafted by an attorney?

    The many facts and circumstances of the case are important. Your mother should act quickly and hire an attorney with experience to review the specifics and evaluate the best way to proceed. If the agent acted without authority, he should be held accountable. However, getting a judgment is one thing; collecting thereon is quite another. This is not the time to go pro se.

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  • My father passed away and my sister won't give us the lawyer of the estate contact information I know there is a will but never

    I know I'm entitled to things and she keeps dodging me should a have a judge summons her to release information

    Anthony’s Answer

    Based upon your belief that there were assets in father's name without a named beneficiary or co-owner or a claim that certain joint accounts were actually accounts of convenience, then there should be a probate (if a will exists) or an administration (if no will exists). If after diligent search to locate a Will and none is found, then as a child of the decedent, you have standing to file for an estate administration in Kings County Surrogate's Court (assuming your father was a resident of Brooklyn). You may want to request that you be appointed Administrator. This will get the process started.

    Estate administrations can be complicated when there is no cooperation among the family members as I suspect is your case. Seek out an attorney familiar with the process.

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  • Will

    I was married 31 years and my wife was incapacitated for 21 years ..My Mother in Law promised me if I continue taking care of her daughter I would always get her daughter inherence .My wife died 2 years ago at age 51 .The day after my wife died m...

    Anthony’s Answer

    With regard to your mother-in-law taking you out of the will, she is free to do as she chooses provided she has the requisite capacity.

    It is possibly however that you have a claim under the theory of Quasi-Contract or implied contract. This assumes that your mother-in-law asked you to perform a service in return for a promise to pay (an amount equal to your wife's expected inheritance); you relied upon this promise; you performed the service and you were not paid (or at least you suspect you will not be compensated). Keep in mind that the service at issue is that of caring for your sick spouse.

    At this point in time, you suspect (and probably correct) that you will not receive the promised sum. Ask yourself, what is that sum and can you calculate it prior to your mother-in-law's demise. It is possible your mother-in-law will change her mind and her Will. Certainly if you bring an action against her, she will not.

    There are many variables in your issue not to mention, the value of her estate upon her demise and if a quasi contract does/did exist. Your case will be a tough one to prove and collect upon.

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