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Mark O. Costley
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Mark Costley’s Answers

9 total

  • I'm single with a minor child. I want to create a trust for life insurance purposes. Should I create an Irrevocable Trust?

    I'm unsure if I should create an Irrevocable Trust or an Irrevocable Trust Funded by Life Insurance. Also do you know where I could download a form for this? Thanks

    Mark’s Answer

    I agree with others that you should consult with an experienced attorney to determine your needs. I would add that as important as the question regarding a revocable versus irrevocable trust is, you should also ask an attorney about how your child should receive the insurance proceeds after your death. Because you child is a minor, they should almost certainly receive the proceeds in trust, likely a subtrust under the same Trust Agreement. But there are further questions. When, if at all, should your child receive these assets outright (and free of the trust)? Who should be the Trustee for your child after your death? What things should the Trustee of this Trust be able to use the assets for (like healthcare, education, housing and other support), what other factors should the Trustee consider in making the distribution, and should the distribution standard be different when the child is 25 instead of 5 or 15? There are a host of other considerations to be thoughtfully determined, and which different people will resolve differently. I think it is great that you are planning to take care of your child and that you will feel that time spent with an experienced attorney is well worth it.

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  • As administrator of my parents estate, do I have the power to evict my brother who they gave permission to live there in the wil

    He is not maintaining the house, paying the bills and is a chronic drug user. If I cannot evict him, can I attempt to charge rent.

    Mark’s Answer

    The answer to your question depends on information that you have not given in your question. I think the answer to you question depends on the details of the language in the Will under which your brother was given permission to live in the house. A lawyer could review the Will and determine the nature of any right your brother has (is this a life estate, a trust arrangement, and who else might own the house) and who, if anyone your brother answers to. In North Carolina, if there is a clear beneficiary entitled to the house under the Will the Executor has no authority over the house. Have this situation reviewed by a lawyer. I think you will get a quick answer as to your next steps.

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  • As Executor and beneficiary of my Father's Estate, can I evict my Sister (barred from inheritance via Will) from his home?

    She refuses to pay utilities and is a liability to the Estate at this point. The Will reads: The Failure of this Will to provide for any distribution to my child: (her name) is intentional. He had felt sorry for her that she was living in her ca...

    Mark’s Answer

    Actually, the answer to this question is different in North Carolina than most other states. In North Carolina, where there is a Will, the North Carolina real estate (including the home) is owned by the beneficiaries of the Will and not the estate upon the death of the owner. This means that you as Exeuctor have no authority over this home. Instead, the individual or individuals who inherit the home under the Will own it, with no action of the Estate or Exeuctor, and those beneficiaries have the authority to evict a person who is not an owner and does not have some other (contractual) right to the home. In turn, I would say that your Sister has no direct obligation to pay the untilities, but likely has an obligation in fairness to pay rent for the period of time she has occupied the house. I would suggest that as Exeuctor you might have a duty to notify the beneficiaries under the Will (which I suspect includes you, individually) of these facts and would encourage you to seek the advice of a North Carolina attorney to assist.

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  • Once gifted for Medicaid eligibility (in 5 years), do I have a way to protect the property I gifted from being misappropriated?

    I plan to gift my property to my daughter to start the 5-year clock on Medicaid eligibility. I have NO reason to believe she cannot be trusted to maintain the property for my benefit but if there are mechanisms that can ensure protection of my pro...

    Mark’s Answer

    You have a great question. If the gift is outright and without any reservation of rights for you, it is a completed gift, and your daughter can do anything she wants (it is also subject to her creditors and risks of loss). If you have reserved rights, it may not be a completed gift (and might still be countable for the purposes of Medicaid qualification). I hope you will see the elder lawyer with whom you plan to consult sooner rather than later. The earlier this trusted advisor is in the loop, the better for you. You should do nothing involving the transfer of assets without first consulting with your attorney. Best of luck to you!

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  • Do I have a chance at contesting my father's will with a stepmother involved that has ailenated each of my father's heirs?

    I'm not allow to speak or see my father (who has failing health issues) without going thru her of which we do nothing but argue. My dad recently inherited millions from his mother's passing (my grandmother) Not a dime trickled down - she has made ...

    Mark’s Answer

    I agree with Mr. Fromm. You should get a lawyer as soon as possible. The fact that your stepmother has alienated your father's family may not, in and of itself, create a basis for contesting the will. However, it is one of many factors which could be properly considered in a will contest, and where this kind of behavior exists, other relevant factors often follow. A good lawyer will be able to help define the issues and determine the facts. It may also be that the involvement of a lawyer will slow her down if she is engaged in misconduct. Best of luck.

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  • Do i need to hire a lawyer for abuse of power of attorney?

    my sister transfered money from my moms account to her own account long before my mother died. the money was to be divided equal. sister was power of attoney.

    Mark’s Answer

    • Selected as best answer

    I agree that you should hire an attorney and that you should do so as quickly as possible in order to determine and document the facts. Filing a civil action against your sister should allow you access to copies of bank records which would document these transfers and perhaps provide some insight into other dealings of your sister on your mother's behalf, which might explain her conduct. If you sister was also the Executor of your mother's estate, she might also have violated obligations as the Exeuctor in not pursuing recovery of these funds.

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  • My brother made a Will in 1992 - is this Will too old and expired - this is the only Will. Also, can relatives not mentioned

    in the Will file a claim for the distribution of his assets to include them with positive legal results. Will made in GA and filed in NC. Thank you for any advise and information. Andrea Lane

    Mark’s Answer

    Age alone cannot cause a Will to expire or be invalidated. To be a beneficiary under a Will a person does not have to be specifically named if they are within a class of people named -- such as "my siblings, my children, or my nieces". Also, it may be that your brother had assets that were not controlled by his Will. I encourage you to hire a lawyer to look into the validity of the Will as well.

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  • What should I expect next.

    my grandmother passed a month and a half ago. My uncle said I owned 25% of her house since my dad died in 2000. I got a letter 2 weeks ago just saying will was admitted. To probate. What should I expect next and when. I havbt seen a will or talked...

    Mark’s Answer

    The answer depends upon where the property is located. If it is in North Carolina and your grandmother had a Will naming beneficiaries for the property, her share of the property was passed to the beneficiaires specified in her Will upon her death, without any further action to be taken by the Executor in the probate of the estate. In this case, and if your Uncle is correct, you own 25% of the house now. The questions for you is who owns the other 75% and whether you are in agreement as to what to do with the property.

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  • How can someone revoke a durable poa?

    A family friend is trying to revoke a durable poa in which her 2 kids are the agents. she is unhappy with there actions. how can she revoke the poa and remove them from account access.

    Mark’s Answer

    I agree with Ms. David's answer and would add that she should immediately contact any institutions at which she has accounts to notify them of the revocation of the power of attorney. It might also be appropriate to consult an attorney regarding the actions of the children.

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