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David M. Frees III

David Frees’s Answers

40 total

  • What is the best to use a will or trust ?

    I am a 43 yr old male with about 2yrs to live due to liver cancer. I own a home with the mortgage in only my name. What is the best way yo leave it to my wife ?

    David’s Answer

    Mr. Fromm's answer is excellent. I would simply add, that if you are a Pennsylvania resident, that the use of a revocable living trust rather than a will may not generally worth the additional time and expense. If you create a trust, you would also have to deed your property into that trust and incur the recoding fees.

    Also, if you do deed your property into a trust, you must make sure that the trust contains all of the correct provisions to make sure that the transfer does not trigger realty transfer taxes right now.

    The answers to these questions might vary if you do have children and/or you intend to leave assets to someone other than your wife.

    Doing a will, at the very least is essential.

    I hope that this additional information is useful.

    DISCLAIMER: This posting is for informational purposes only and does not constitute legal advice ora legal opinion. You are advised to get legal advice based on the specifics of your particular matter.

    David Frees can be reached at 610-933-8069.

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  • Can I get compensation from an estate for years of caregiving and caretaking of property before the nursing home gets it all?l

    My partner"s father may become a permanent resident at a nursing home. I have been living on the property, rent-free, but providing much service, for many years, i.e buying groceries and cooking, cleaning, yardwork, lawnmowing, minor repairs, hom...

    David’s Answer

    There are really two issues here. The first is are you entitled to reimbursement for past work and for future work if he returns. The second is will payments disqualify him from long term care under medical assistance? Gneerally, when services are performed over time and there is no agreement or payment, a presumption arises that such work is being gifted and the longer that goes on the more people make that presumption. So, be sure, as the prior answer suggests, to make a list of everything that has been done but also make sure that there is an agreement an actual payment for future work.

    Unlike the prior attorney, I suggest that you see a lawyer who is NAELA certified or who has significant elder law experience to make sure that any and all past and future payments are made in a way that does not disqualify your partner's father from medicade.

    Thius answer is for informational urposes and does not constitute a legal opinion or legal advice and does not create an attorney client relationship.

    You are advised to seek counsel in this matter.

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  • What is PA's inheritance law for bank CD's held IN TRUST FOR surviving children? At what rate is it taxed?

    What is the inheritance tax % on a bank account (CD) held in trust for a child?

    David’s Answer

    Accounts held in an individual's name and in trust for beneficiaries will be subject to tax on the entire amount. The tax rate for children will be 4.5 percent. If one or more beneficiaries are siblings, or nieces, nephews or unrelated parties, the tax rate on that amount will be 12 % or 15%

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  • Can a person have a revocable trust and an irrevocable trust at the same time?

    can one real estate property be transfer from a revocable trust to an irrevocable trust ?

    David’s Answer

    How rare, that you have three lawyers so far all in agreement on this issue. You certainly can establish multiple trusts and they can be set up for different people and for different reasons.

    For example, you might have an irrevocable trust holding a life insurance policy. You might have a trust set up under your will for a special needs child and you might have a revocable trust that will distribute other assets to your heirs only upon your death.

    In each case, you might have different trustees, different rules about investment, and different rules about who gets assets for what purposes.

    However, since trusts might need a separate tax return, and their are often other costs, your estate plan should, to paraphrase Albert Einstein, have no more trusts than needed to accomplish your estate planning goals.

    For more information on trusts and how they are used feel free to visit our resource rich blogs and articles at

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  • What do i do with inherited real estate

    father's house inherited due to his death.

    David’s Answer

    You need to either get appointed as the executor of his estate if he had a will and named you as the executor, or you need to get appointed as an administrator if your father had no will. You will also need to identify all of the assets owned by your father and all of his liabilities to verify that you can convey the house to yourself without having claims made against the asset and the estate. You will also need to verify that the inheritances taxes have been paid and the return has been accepted by the Pa Department of Revenue.

    Finally, if there is no will, you will have to research and verify that you are the sole heir under the intestate laws.

    Many of these and other issues can be quickly resolved with the help of a knowledgeable trust and estates lawyer in your area. Be sure, to verify the fees and how they will be charged and get an engagement letter in writing.

    You will

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  • It has been 2 1/2 years since our father's death, executer has not settled estate. What legal action can beneficiaries take?

    Our brother, the executer, has an $800,000 lien on the estate from a loan he had our father sign prior to his death. He therefore has no incentive to liquidate the estate property because his 1/4 inheritance would be $500,000 at best, not enough ...

    David’s Answer

    There is a method for compelling an accounting. In short, you can force the executor to provide you with a detailed review of what he has done. The lawyer you spoke to does represent the executor. However, it is not true that the executor can sit on the estate. executor's have a duty to the beneficiaries and as beneficiaries you have a right to receive information through the accounting process. You will almost certainly need an attorney for this process as it is technical. You could also consider and discuss a mediation as a way of informally resolving this before the costs of litigation mount. Consider discussing this with your counsel.

    If you want more information about executors and executor duties, you can get a free copy of the book, The Ten Most Common Mistakes Executors Make and How To Avoid Them at

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  • What is the best way to leave assets to children

    should i transfer my prpoperty now or put it in a will

    David’s Answer

    That is a great question. As parents, it is natural for us to begin thinking about how to transfer wealth to our children and grandchildren with the least tax and with the fewest complications and fees.

    However, gifts to children (especially minors) must be balanced with their age, your own needs, and many other factors. And, co owning assets with minor children can end up being a disaster. Finally, if you give assets outright to children, it might interfere with their ability to get financial aid and if they marry and divorce, those assets might be lost.

    There are also limits as to how much can be gifted to children in any year without incurring gift tax. For more information on this issue you can read several articles on our site

    Furthermore, if a child is a minor, he or she cannot legally own assets in their own name and a trust, UTMA account, or 529 plan may be a better option.

    However, if your assets are more modest, it might be better to maintain control over them and to leave them under a will where you can control the ages when they will receive assets and the purposes for which their inheritance can be used. Under your will, you can set up a trust, pick a trustee, and set up the rules for investment and distribution.

    In some states, a living trust might be a better option, but in Pennsylvania where probate fees are quite low, a well drafted will might save you money and achieve your goals.

    You might benefit from a consultation with a trust and estate lawyer to get a handle on your various options (many of which would not be expensive or require a lawyer).

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  • Inheritance taxes

    If real estate was left under her will by my aunt to 3 nephews as beneficiaries, 1/3 each and all other assets (annuities) pass by beneficiary designation to the same 3 nephews. Does the estate pay the inheritance tax from the resisue of the will...

    David’s Answer

    Where the will is silent, the inheritance tax burden generally falls on the beneficiaries. However, since the three heirs are the same beneficiaries of both the probate and non probate assets, this should be relatively easy to work out. The Pennsylvania inheritance tax rate is 15% for nieces, nephews and non related parties.

    This information is provided for educational purposes only and does not create an attorney client relationship and does not constitute legal advice or a legal opinion.. Furthermore, you must obtain your own advice from counsel familiar with all of the relevant facts related to your question.

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  • My father-in-law is in a nursing home. We have heard that in PA he may give away $500.00 a month in gift $$$ without medicaid

    requiring it back. Is this true? I do not want to give this to his grandchildren, have them spend it, and then have medicaid require it be returned if he needs it. Also, if this is ok, must records be kept of all these transactions?

    David’s Answer

    Pennsylvania law does permit certain transfers each month (and under certain specific circumstances) without disqualifying your father from medicaid benefits. Furthermore, there are other techniques, such as contracts for reimbursement of caregiver expenses and fees, irrevocable trusts, and techniques related to maintaining a residence for a spouse or related person. However, these techniques are not available in many cases, and may result in a disqualification of your father if not done properly. Help from a Pennsylvania lawyer familiar with these issues and who is a member or NAELA (National Association of Elder Law Attorneys) or an equivalent Elder law organization is essential.

    We are just preparing three new elder law reports that are not yet up on the site: However, if you email I can send you these reports.

    More Information and Important Legal Fine Print

    David Frees is Chairman of his firm's Trust, Estate, and Wealth Preservation Section and is licensed to practice law in PA with offices in Malvern, west Chester and Phoenixville, serving all of Philadelphia, the Main Line, and Chester, Montgomery, Bucks and Berks counties.

    He offers free information on estate planning, asset protection, elder law, and information for executors, trustees and beneficiaries on his various information rich and consumer friendly web sites listed below. He can be reached at 610-933-8069 or at the email address listed below. He has received the highest AVVO rating of 10.0 and recently was selected as the "top Trust and Estate Attorney" in Main Line Magazine and as a Superlawyer in Philadelphia magazine.

    David hopes that the answer to this question will be helpful and will make you a better consumer of legal, trust, estate, and tax services. However, he is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Frees limits his practice to these areas of the law.

    These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. In general, David Frees strongly advises you to confer with an attorney in your state in order to ensure proper advice is received.

    By using this site you understand and agree that there is no attorney client relationship or confidentiality created between you and the attorney responding unless you personally consult that attorney, and that he or she accepts representation.

    This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship.

    The law changes frequently and varies from state to state and for that reason, the answers, information and materials provided are general in nature, and may not apply to your specific matter.

    Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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  • If my husband dies without a will, will the house go to me or his mother?

    My husband and I have 2 children together, and he has custody of his daughter from a previous relationship as well. His mother also lives with us, by his choice not by necessity (she owns property elsewhere). I am not on the deed to the house, w...

    David’s Answer

    Your husband is not correct. Under Pennsylvania law, if he owns the house and dies without will intestacy laws will define who gets his property and in what percentages. As for the insurance, the beneficiary designation will control unless it is payable to his estate. In that case, the intestacy laws will again split his estate between you and his children.

    Finally, if you are going to transfer the house, and it is subject to a mortgage, you might want to see an attorney to make sure that the transfer does not accelerate the mortgage.

    This does not constitute la legal opinion or legal advice. Please see your own lawyer and provide the specific facts of your case to your adviser.

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