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Joseph M. Masiuk

Joseph Masiuk’s Answers

406 total

  • In the state of PA, is it sufficient to have a Will or do you need a Living Trust when you own a house?

    I've been told that if you do not have small children or a child with a disability or if you do not own a million dollar house, a Will is all that you need.

    Joseph’s Answer

    For as much respect and admiration as I have for my colleague, Ms. Stewart, through the many instances in which she has provided thoughtful and insightful advice on Avvo, this time, I'm inclined to disagree with her (most respectfully, of course).

    Rather than stating that "[g]enerally speaking, living trusts are unnecessary in Pennsylvania", I start discussions with my clients and prospective clients from an entirely different place. The following has become one of the mottoes of our office:

    "The best estate plan is the plan that addresses each and every issue which you, the client, decides is important."

    Before our clients decide whether a will or a living trust best suits their needs, we have them reveal to us what's important to them. For example,

    Do they believe that, if they were to die tomorrow, their kids would be mature enough to handle a lump sum inheritance?

    Or, if a couple is married, do they care whether their estate is structured so that the "last person living" is the one whose will gets to decide where the estate goes,

    Or, regardless of whether a child dies before or after his or her parents, can we ensure that the share that the parent intended for his or her child will follow the family bloodline and not become property of a son-in-law or daughter-in-law who may get remarried.

    Or, what if a senior citizen widow or widower with grown children wants to get remarried. Can he or she be assured that the kids of the first marriage will not be locked out of an inheritance in favor of kids of the second spouse?

    This kind of searching discussion takes time, but we believe that it's well worth it.

    Can the examples which I've listed above be handled with just a will? Yes, but only if it's a will with a trust written into it. In my view, if one is creating a will mostly to set up a trust, why involve the government, through the Register of Wills, just to give that trust legal power? A properly funded living trust will do the same job without the additional expense of probate, regardless of what that expense is.

    I agree with both Ms. Stewart and Mr. Zelinger that here in Pennsylvania, probate is quite simple, but it's important to know that probate is a public record proceeding, which is not true of the administration of a trust which has been properly funded. I believe, particularly in this era of identity theft, that privacy should be for everybody--not just publicly known figures. I also believe that the disclosure of one's estate assets through the filing of a probate inventory, is something that everyone should know before choosing between a will and a trust.

    Unfortunately, the legitimacy of living trusts as an estate planning tool here in Pennsylvania was undermined a number of years ago by Trust Mills and Trust Hucksters (who were really financial firms in disguise) who, with seminars and door-to-door marketing, sold many "one-size-fits-all" trusts by misinforming the public that (a) probate was somehow evil, and (b) a Living Trust was a means by which one could avoid Pennsylvania Inheritance Tax. This false and deceptive marketing has been largely and thankfully shut down by the Pennsylvania Attorney General, but not before the validity of the Living Trust as a proper estate planning tool in some--but not all--instances has been discredited.

    Again, the best estate plan for you or anyone else is the one that addresses all the issues that you believe to be important. What's best for you is your decision alone, but I hope that that decision is one that you reach after someone helps you discover all the issues.

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  • Is it permissible to give assets from sale of stock to deceased mom's partner without the money going through estate?

    Mom left a will with assets to be divided among her 3 children. Her partner of 40 yrs is executor - we all agree to give him money from our inheritance. Does the money from sale of stock HAVE to go into estate account or can it go directly to one ...

    Joseph’s Answer

    I'm not sure what you're asking us.

    At the risk of sounding high and mighty, in our office, there's only one way to handle an estate, and we believe that that way is the right way.

    The reason that we only do estate accounting one way is for the protection of everyone: the executor, the beneficiaries, and yes, the Commonwealth taxing authorities.

    If an estate is carried our properly with one accounting and one flow of money through one estate account in which all assets and expenses appear, then no one down the road will have any right to complain that they got shortchanged in favor of anyone else.

    Besides, if the check from the stock sale is being written directly to one beneficiary to be signed over to Mom's partner, how will the estate account for those proceeds so as to pay the inheritance tax on them?

    My advice: use the estate account for all flow of assets, both in and out, including the stock sale proceeds, make a proper tax payment, make distribution according to the terms of the will, and then have the kids do what they want with the money. If they then want to give it to the executor, it's theirs to give.

    You can't underestimate the value of a righteous, accurate estate accounting, especially years from now.

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  • By adding my child to a living well to say that I'm leaving the house to her, would that stand up in court?

    adding a person to the mortgage

    Joseph’s Answer

    Ms. Santaella is correct. You're trying to compare apples and oranges here. Living wills are different from Wills. One is designed to make medical decisions; the other is designed to distribute property when you die.

    Adding a person to the mortgage does not change ownership. It only adds another person responsible for the mortgage.

    You really need to see a lawyer who will straighten out your understanding of the terminology and advise a clear path as to how to do what you want to do.

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  • Can my mother estate be sued for funeral cost

    My mother passed and my family paid for the funeral before I had a chance to even see what she had....can that sue the estate for funeral costs

    Joseph’s Answer

    In agreeing with my fine colleagues who have also answered your question, I would add only the following:

    Before anybody runs to make a claim against the estate or even thinks about lawsuits, please reread Mom's will (if there is one). In most wills, one of the first paragraphs has the following language:

    "I direct the payment out of my estate of my funeral expenses, including the expenses of my last illness and all just debts as to which there are no defenses in law or equity at the time of my death."

    If such language is in the will, then whomever paid the funeral bill will be reimbursed by the estate by the executor.

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  • My fiance passed away last week. We lived together in his house for four and a half years. I stopped working to take care of him

    He took care of me financially. His oldest son was promised the house, there's no will to be found. He will be the executor. my fiance told me I would be taken care of if he passes. can his son kick me out and move in during probate? And, does he ...

    Joseph’s Answer

    Here's what you believe to be the case:
    --He was your fiance, and you had a loving relationship.
    --He made some promises to you during his lifetime regarding at least some of his money.
    --The place where you live is the place where you call home, even though his name is on the deed and yours apparently isn't.
    --Because of your relationship with him, you are entitled of some of his money, which he promised, and on which you rely to live.

    BUT, there is no will, so here is how the law looks at you:
    --You are a total stranger to him with no rights whatsoever.

    I know that this is a bitter pill to swallow, but yours is an all-too-common situation. While you and I know that he made promises to you while he was alive, the only thing that the law will recognize at this point is whether he made a will and whose name is on the deed.

    Sorry, but all the loving and well-meaning promises which he spoke in your ear while he was alive are worthless unless he backed them up with documents with legal power. Because he had no will, the law provides that his house and accounts in his name will go to his blood relatives.

    Your only hope is if he named you as the beneficiary on his IRA, because if he did, the IRA will not be part of his probate estate.

    Again, sorry...

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  • My husband died without a will and now his children said that a will surfaced does it have to be recorded its been four days

    its been 4 days and now I was told about the will I have not seen one when question about his car now they say that theres a will

    Joseph’s Answer

    I agree with both of the fine lawyers who have answered you. I would add only the following:

    A will has no legal power unless it is filed with the Register of Wills. If the party who has the will refuses to file it, you can file a Petition with the Register of Wills to compel whomever is in possession of the will to produce it for filing.

    If his children say there was will, they should file it. If they won't, you can have the Register of Wills order them to do so.

    Good luck.

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  • What entitlements do children have when estranged father passes?

    His only key assets was a home (paid off) in his mothers name, but she has been gone for 15 years. He does have siblings but they essentially gave him ownership of the home. Are his estranged children entitled to that home?

    Joseph’s Answer

    Estrangement has nothing to do with whether children may inherit. Blood relationship is the only thing that matters. Of course, if he had a will, his estate (including that house) passes to whomever he has named in that will.

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  • I am 50 I receive Ssi Medicaid also 20 hours of home health care a week can I still spend my settlement money f

    It was from a personal injury case and the Medicare care Leon has been paid for the case do I need to make a trust or can I spend it down or do I have to pay back for the home health care .

    Joseph’s Answer

    You have asked a very, very important question, which can have a drastic effect on your benefits if you get it wrong.

    I absolutely, completely agree with Mr. Davis, the other attorney who answered your question. You need to discuss this matter with the lawyer who settled your case who will, hopefully, put you in touch with a lawyer who does Medicaid work. They will advise you how to best proceed.

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  • How can you tell if a will is authentic?

    my husbands brother holds the original will from my father in law and won't let any one see it. He said he won't let any one touch the real will or look at it.

    Joseph’s Answer

    Is your father-in-law deceased? If he is, the only way that his will becomes a document with legal power is if it is probated. This means that the executor must take the original will to the Register of Wills office in the courthouse of the county of which your father-in-law was a resident at the time of his death. The Register of Wills will examine the document to determine whether it meets the legal requirements of being a will before it is admitted to probate.

    Again, a will has no legal value unless the will maker has died and the will has been probated in the Register of Wills office. If, in fact, your father-in-law has died and your husband's brother refuses to produce the will for probate, he can be ordered to do so by the Register of Wills. I advise you to seek the assistance of a probate lawyer to help you force production of the will.

    Good luck.

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  • Can a legal proxy refuse to honor a Living Will?

    After my death, my body is to be donated for forensic research. If my daughter is my legal proxy, can she refuse to honor my wishes and have my remains buried or cremated?

    Joseph’s Answer

    With all respect to my out-of-state colleagues, Pennsylvania law specifically addresses this issue in 20 Pa. C.S.A. §305, entitled Right to Dispose of Decedent's Remains. To remove all doubt, our clients sign what we call an Affidavit of Contrary Intent which, under this law, sets the terms of whom will take charge of the body and what they are to do with it. This situation most commonly arises when there is a dispute between one military veteran spouse who wants to be buried at Arlington, and his or her spouse, who wants everyone together in the family plot.

    We recommend that such an affidavit be drawn by a lawyer familiar with these issues.

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