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Brendan James Gilbert

Brendan Gilbert’s Answers

68 total


  • Update:review of the trust determines "reasonable expenses" are allowed. Whether this is under that category is the question.

    Since a cotrustee that I have no problem with hired an attorney to oppose the petition for a substitute trustee and related relief and has told me he has no problem with the outcome of his remaining as sole trustee and I have agreed to that, I hav...

    Brendan’s Answer

    I couldn't find your original question, or any from Kingston that are open.

    $200 for a court appearance is reasonable. (Cheap, even, in trust litigation.) What takes ten minutes in court takes X minutes to get to and from court, and has an opportunity cost of 10+X which is what you're being charged for--the time that the attorney is focused on your case as opposed to others.

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  • New York state question: Paying trustee attorney fees from the trust estate

    In New York state, are legal fees incurred as a result of the trustee's negligence chargeable to the trust? Thanks

    Brendan’s Answer

    Yeah, the trust language determines whether the trust pays for trustee negligence, and may have conditions--e.g. "only if the trustee is not a professional fiduciary/in the business of being a trustee," "only for willful misconduct," etc. Consult a trusts attorney for their take on the language in question.

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  • OUR parents are gone / 3 siblings out of 5 are not wanting to follow wishes in the will. what can i do .

    Problem is / spliting up items that are supposed to be split up equally between 5 siblings . as was stated in the will. 3 are trying to avoid it and want to leave items to one pearson ( sibling ) 1 sibl...

    Brendan’s Answer

    Drew's right. If the will doesn't name an executor, file to administrate the estate. If it does, tell that person to do so. If they refuse or won't, file yourself. Then, as administrator/executor, decide what happens (subject to the duties of care you owe to the other inheritors).

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  • Is there any way to avoid creditors from garnishing an inheritance?

    The inheritance is from my mother's brokerage account.Me and my 3 siblings are the beneficiaries.I have no bank accounts or assets of any kind.I need this inheritance to avoid homelessness and give my mother proper services. From what I understand...

    Brendan’s Answer

    If that money hits your hands, it will not be merely garnished, but wholly intercepted by a determined creditor up to the seizure limit. A better solution might be available with siblings you trust and an attorney's help.

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  • I have been on mind altering medication. I have recovered and I feel that a family member has power of attorney over me.

    I don't know if I may have signed anything giving him power of attorney because of the medication I was on. how can I find out if this is true without hiring a attorney. is it possible that my compensation lawyer may have had me sign a document gi...

    Brendan’s Answer

    Given that you have recovered, no. An allegedly incapacited person also must be evaluated for the court before any guardianship would be granted. You should have an attorney draft a power of attorney termination, and then provide it to anyone you do business with to ensure no exploitation can occur.

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  • How do I find a trust fund that my mother set up for her grandchildren?

    I have searched the missing money site and my lawyer did a national search for the trust funds and it was unsuccessful. What is frustrating is that I know it existed but I didn't know how my mother set this up. I asked her financial advisor and he...

    Brendan’s Answer

    There's no need to have filed the trust anywhere or put anyone on notice. If you cannot find a Memorandum of Trust or a trust instrument giving you the name of the trust, and Unclaimed Funds provides no help, the only option I can imagine remaining is to subpoena banks randomly based on the grantor's social security number. If your mother has a checking account, try to get a check image that funded the trust, which may indicate the name of the trust or trustees on the "Payable To" field.

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  • What is the difference between an Irrevocable Trust and a Grantor Trust?

    If a settlor creates an Irrevocable Trust for the purpose of gaining need-based Public Benefits, can the trust be constructed so that the settlor retains sole control over the Income and Prinicpal of the Trust Estate during his lifetime and then t...

    Brendan’s Answer

    'Grantor trust' just means that the trust income and expenses go on the tax return of the grantors, as opposed to being taxed separately under the (completely absurdly high) trust taxation schedules.

    'Irrevocable trust' just means that the trust can't be revoked by the Grantors--it may still be changed, amended, revoked or terminated based on its provisions, or state law (Florida Statutes Chapter 736, Article 4 provides a multitude of ways to modify an irrevocable trust, and is in the links).

    Complete control over a trust means, with near certainty, that you have enough control for the Agency for Health Care Administration to say you should have to take it all back and pay for your care.

    Don't try to think through all of this alone--DIYing your planning for all the assets you've built up throughout your life and medicaid qualification planning is a bit shy of rocket science.

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  • We receive $2000.00 a year from a trust that was set up years ago. Why can't we touch it when it was set up by a family member.

    Between cash, checking, CD's, Corporate bonds and notes, stocks and securities the value is over 48 million. From what I understand when the last direct relative passes the total is divided between the other names on the trust. None of which ...

    Brendan’s Answer

    It sounds like the answer is because the trust says so. But you should make sure of that by getting a copy of that trust. Contact local Illinois counsel.

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  • Proper tax filing for domestic LLC owned by foreign grantor trust with US grantor.

    I am an US citizen grantor of a foreign grantor trust. The trust income will be entirely taxed to me since it is a grantor trust. In order to more easily conduct business in the US, I would like to open a single member LLC in Delaware. The sole ow...

    Brendan’s Answer

    Can the income of this LLC go on my personal 1040 Schedule C? Yes. You have an alternative; the Delaware LLC can opt to be taxed as a corporation instead of as a pass-through entity.

    If I put the LLC income on my 1040 Schedule C, and the LLC income also on the trust 3520A, will this income get accidentally counted twice? Maybe. If you want to go this route, get in-depth tax advice. Do keep in mind the 3520-A is an information return only.

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  • HOW DO I KNOW IF I WAS IN SOMEONES WILL?

    MY FOSTER FATHER PASSED ON WE ALWAYS COMMUNICATED, HE SAID HE WOULD ALWAYS LEAVE ME SOMETHING BUT HE DIDNT KNOW WERE I WAS WHEN HE PASSED AWAY.

    Brendan’s Answer

    All of the other attorneys are correct--I just have two additions.

    If you know who is going to probate the estate, consider sending them a written notice as a creditor of your father. Even if you know you aren't a creditor, you will be notified of when they file for probate this way, and you can then aim to see the will.

    If no one is probating the estate, you can very likely open it yourself as an interested person.

    Lastly, do check the New York Comptroller's unclaimed property site, which is in the links.

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