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Michael Davidov
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Michael Davidov’s Answers

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  • Can a condo be sold before probate?

    letter of testamentary filed so i guess the process has begun. can a condo held within a will be sold before the whole process is settled? one person will inherit the condo and the rest of the monies will be divided among the 6 beneficiaries. ri...

    Michael’s Answer

    Letters Testamentary are received by the Executor after the will is validated during the probate proceeding. I assume that the attorney handling the matter hasn't obtained Letters Testamentary yet because there is difficulty in locating all of the distributees.

    In cases where it is difficult to locate the distributees, an alternative is to seek limited letters of appointment to enable the executor to sell real estate. This will enable the executor to place the proceeds from the property in an investment vehicle that will make money instead of loosing $800/month.

    Once the distributees are located or in the event that the court finds that their whereabouts are unknown, the will can be probated and full letters testamentary will be issued to the executor. They can distribute per the will terms and close the estate.

    If you're not confident that the attorney handling the estate is doing things quickly enough, you may want to seek your own attorney who is competent in this area of law.

    Michael Davidov, Esq., CFP
    www.davidovlaw.com

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  • How are property taxes paid when estate has not yet been settled?

    Inherited a house and property taxes as coming due. Estate has not yet been settled. Executor passed away and new one to be established. In meantime, insurance and property tax are coming due on the house. How is this handled if there are no f...

    Michael’s Answer

    Although matters are in limbo with the estate administration, life goes on and the bills have to be paid.

    There is nothing stopping you, as the beneficiary from paying the taxes and becoming a creditor of the estate. Provided that there are other assets in the estate to pay the taxes once the executor is appointed, and that the will provides that carrying costs for the property are part of the estate expenses, you will get reimbursed by the estate for any money that you paid out on its behalf.

    Alternatively, you can wait until the executor is appointed and the house is sold but you'll risk penalties for late payments of the taxes, or worse - a tax lien on the house.

    Raise your concerns to the attorney who is helping administer the estate and get their input. You may want to consult your own attorney as well.

    Michael Davidov, Esq., CFP
    www.davidovlaw.com

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  • I have a copy of will & before signature it states "in witness whereof" doesn't that mean that witnesses or notary should follow

    This is in NY State. My wicked stepbrothers have the original will and only provided me w/a copy after I insisted that I knew it existed and what my stepdad told me his wishes were. They have only provided me with 1st 2 pages which includes his si...

    Michael’s Answer

    Have you requested a copy of the will from the attorney who drafted the will? If you're not getting any answers, bring a petition to compel the will under SCPA section 1401.

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  • Is a Trust ALWAYS better than a Will?

    Several years ago I saw a highly recommended attorney for Estate Planning. He prepared and recorded a Beneficiary Deed for my home, instructed me to name beneficiaries on my life insurance and bank accounts (which I did) and drafted a Will that a...

    Michael’s Answer

    This is a great question. The answer is: "it depends..."

    Trusts are utilized in different circumstances to achieve a number of goals, one of which may be avoiding probate, as you've pointed out. If all you're looking to do is avoid probate, your attorney's solution may be adequate.

    Some other common reasons to utilize trusts are to make it easier to transfer control in the event of incapacity, minimize estate or GST transfer taxes, creditor protection and asset preservation, and to control the management of assets or distribution to the beneficiaries.

    No one particular solution (trust versus will) is appropriate in all circumstances, and your decision on which to employ should be reached only after an attorney and you have reviewed your goals and objectives.

    You may want to get a second opinion and have a consultation with a reputable estate planner in your area. You might be reassured that you've made the right decision when you prepared your will based plan, or learn that not all of your concerns are being addressed with the existing will based plan.

    Michael Davidov, Esq., CFP
    www.davidovlaw.com

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  • In New York State how long can an executor of an estate delay starting the settlement of an estate?

    My divorce was not settled before my husband died. His son is the executor of his estate and wants me to give up the first $50 thousand of the estate. I don't think there is that much money so that means I get everything. So his son has not put...

    Michael’s Answer

    In New York, there is a distinction between an executor and an administrator of an estate. An executor acts under a valid will, and an administrator may be appointed when an estate is administered without a will.

    As a surviving spouse, you have many statutory rights including the "right of election" against the estate. The right of election allows you the greater of $50,000 or 1/3 of the net estate. The elective share is exercised against all of the estate assets including the house. From what you described, it should be greater than $50,000.

    You should consult a competent probate attorney before you make a decision about how to proceed.

    Michael Davidov, Esq., CFP
    www.davidovlaw.com

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  • Can one Trust be funded by another Trust, excluding stepchildren named in the first Trust?

    If a married couple establishes a Trust to ensure an equal division of property amongst their children and stepchildren upon their death, and one of the grantors dies, is the surviving spouse allowed to establish another Trust, funding it with as...

    Michael’s Answer

    The answer depends on how the first trust is worded. If it was a revocable trust, the surviving spouse will generally be able to change at least their portion of the trust and possibly the decedent's share. You'll have to check the trust, and I suggest you retain a local trusts and estates attorney to assist you.
    Best,
    Michael Davidov, Esq.
    www.davidovlaw.com

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  • Give guardianship to my friend

    If my friend lives in florida and i want to give her temporary guardianship to my daughter and im in a different country .How can i do that can she go to the court and file the papers by herself are do i have to be present there .What can i do im ...

    Michael’s Answer

    The answer depends on which jurisdiction you live in. I assume you live in NY and your daughter lives in the same place. Under NY law, you can sign a legal document naming your friend as the guardian for your daughter.

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  • What kind of expenses can be used to spend down the money in a special needs trust account throught NYSARC?

    Our dad is currently Medicaid pending with money in a special needs trust. He does have a home that is in an irrevocable trust. Can this money from the special needs account be spent on the taxes and maintenance of this home. He is residing in ...

    Michael’s Answer

    A NYSARC trust is a type of a pooled income trust that is generally used for community based Medicaid, not for long term care Medicaid in a Nursing Home. NYSARC will pay the income only trust expenses including real estate taxes and other household expenses if you provide the trust to NYSARC.

    Michael Davidov, Esq.
    Elder Law and Estate Planning Attorney
    www.davidovlaw.com

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  • How is an estate split if someone dies without a will? They were only married ~3.5 years. There is premartial property.

    Is the wife entitled to everything? Does the estate include all of his premartial and property and hers?

    Michael’s Answer

    The estate will be divided based on the laws of intestacy in the state where the decedent lived. I don't practice law in GA, but here in NY, if the decedent left a spouse and children, then the spouse gets the first $50,000 of estate assets and the balance is split equally between the spouse and the decedent's children.

    Michael Davidov, Esq.
    www.davidovlaw.com

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  • How can my husband find out if he's a beneficiary on a life insurance policy

    My husband's father passed away in June 2010, at the time, his mother was listed as POA...there have been talks about him having an insurance policy listing my husband, his brother and their grandmother as beneficaires. How can he find out? His g...

    Michael’s Answer

    If you know the name of the insurance company, you can contact them and inform them of the death. If your husband is a beneficiary of the policy, they will send you the claim forms. You'll need to return the claim form with a certified copy of the death certificate.

    I practice in New York. You should also contact an attorney in Ohio.

    best,
    Michael Davidov, Esq.

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