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Richard Michael Morgan
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Richard Morgan’s Answers

243 total


  • Should executor provide us with information pertaining to our minor heirs (trust/acct) info? Where it is and the amount?

    Executor states everything finished. Children received will and communication 2 years ago, but nothing since. It seems as if we would be entiltled to this information prior to them turning 30, which is when they can access. They are both young ...

    Richard’s Answer

    Good questions. The answer is that while your children are minors, their rights are protected and exercised by their natural guardian, which are normally the minor's parents. The rights that your minor children have is determined by a combination of the legal document creating the children's trusts, which could be either a Will or a Trust, and applicable state law. Therefore, in order to determine what rights your minor children have, you need to consult with a competent attorney to review the relevant legal documents and facts in your case. After this is done, the information as to the childrens' trust shares can be obtained and it can be determined if all is going well or, alternatively, problems may need to be fixed or if a dispute will arise from a non-cooperative, negligent or dishonest Trustee.
    Good luck.

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  • MY PROBATE ESTATE CLAIM AGAINST MY EX-FIANCE WAS DISALLOWED. NOW WHAT?

    I loaned my ex-fiancé approximate $72,000.00 over the course of eight years. He died intestate and his only son is the personal representative of the estate. I submitted my claim in writing (I submitted a bunch of canceled checks with "loan" wri...

    Richard’s Answer

    Since your creditor claim against the estate has been denied, our recourse is to enforce the loan against the Estate. I believe any lawsuit would need to wait until after the 6 month period the Executor has to deal with the Estate has ended, but you likely would want to give the Executor notice of the suit you plan to file along with the notice of personal liability if insufficient Estate funds remain in the Estate to pay the claim and other same or lower priority claims are paid out or any amounts are paid to any beneficiaries. Now, as to the ability to win in court as to your claim, that is another question. You will need to be able to prove that the amounts provided were, in fact, loans and considered as such by the parties. Good luck.

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  • Should I backtrack over the details with a lawyer?

    My father and step mother were involved in a tragic tornado a few years ago, ultimately killing them both. My father was pronounced DOA and my step mother taken to the hospital unresponsive due to a severe head trauma. She was immeadiately taken...

    Richard’s Answer

    I am sorry for your loss and the resulting post death issues that only made it worse. However, you state that the intestate laws may have been abused and i wanted to clarify how the law works. I do not see any abuse if, in fact, the law has been followed. First and foremost, everyone in this country has a "right" to decide how their property will pass at their death, with only limited exceptions based on the laws of the state where the you (deceased) lived. In GA, an individual has full right to decide where his or her assets will pass at death except for the rights of a spouse and minor children to a "Year's Support" from the probate estate. Second, you need to understand "how" assets pass at death. Assets pass in the following ways: (i) by beneficiary designation for assets such as life insurance and annuities, retirement accounts, such as IRA and Qualified Plan accounts, and for bank accounts via "POD" (paid on death designation) or on stock certificates via "TOD" (transfer on death designations); (ii) assets owned jointly as joint tenants with rights of survivorship will automatically pass to the surviving owner at a joint owner's death (which is the way joint bank and brokerage accounts often pass); (iii) any assets owned in trust before a person's death will pass in accordance with the trust's terms, and (iv) all other assets pass into the deceased individual's Estate. The assets in the Estate pass in accordance with a Will. The valid Will of a deceased individual controls, but if none exists, as in your relative's case, then the laws of the decedent's state of residence (domicile) provides a state law Will. The state law Will provides for an Administrator to be appointed, figure out what assets are owned and creditors are owed, then pay off creditors, deal with administrative functions like tax issues , and then distribute to the decedent's heirs. The heirs are determined under the state law "rules of intestacy." So, in your case, with no Will, the state law Will would provide for who is to benefit and to what extent. Now, let's go back to your parents' situation. They had the freedom to choose to plan for their demise or not, to make beneficiary designations or not, to own their property jointly or not, etc. Their asset ownership and beneficiary designation choices control. It is not an abuse of the law to follow their choices, these are the choices they made, right, wrong or indifferent, and whether you benefit from their choices. The assets are theirs to do with as they please, to actively make choices or to let state law control. The question then is not about abusing the law, it is what it is and your parents actively or by ignoring the issue made a choice on the rules to be followed on how their assets were to pass. So, the real questions are what assets they owned, how they owned them, if any beneficiary designations were on the assets or accounts, and what debts they owed. With that info known, it can be determined what assets pass to where. The Court appointed Administrator's job is simply to carry out the terms of the state law Will (in this case where your parents' failed to properly create their own Wills). As for the assets passing to a joint owner by right of survivorship or that pass via beneficiary designation, those assets pass out side of the Estate Administration process to the joint surviving owner or beneficiary. As for timing of death having an effect in your parent's cases, this matters since you are a step child (presumably a child of one of the parents). You are not an heir to a step-parent but you would be an heir to an actual parent (via birth or adoption). In your parents' case, it seems pretty clear as to who survived longer, even if it had only been by a few moments. As a result, this analysis will need to determine what happened at the first death as to the assets and a second determination will need to determine what happened at the second death. I hope this was helpful.

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  • I have an aging mother in-law that cannot sign a POA document, does she have to sign to make him a trustee to make decisions?

    My aging in law cannot hold a pen to sign a power of attorney. However, my husband and his brother are saying they can be appointed as trustees in order to make decisions for her without her signature? does she have to sign anything in order for...

    Richard’s Answer

    The key issue is the individual's legal capacity and freedom from duress and undue influence. If she has legal (mental) capacity, then her inability to physically sign is not a problem and can be dealt with with someone acting on her behalf and at her request. This should not be done without a very good lawyer at the helm. If the docs already exist, and the existing docs give certain powers then these powers can be used in accordance with the document terms and subject to fiduciary duties.

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  • My parents died without a will. Can one sibling dispose of property without the consent of all surviving children?

    My mother recently died and, one brother lives in the home. Can he dispose of her property legally without consulting all of her surviving children? My parents property is in Birmingham, Alabama.

    Richard’s Answer

    No, he has no legal power or authority to dispose of any property of a deceased, as he is no different than a stranger off the street unless and until he is appointed by the applicable Probate Court as the Estate's Administrator with the authority and power to act on behalf of the Estate. He can be personally liable for any improper actions that he may take.

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  • Doe's my Sister owe rent for living in our Mothers home while settling estate ?She lived with mom 10 yr prior to mom dying

    Sis lived with Mom 10 years before Moms death.Will says split everything equal between Sis and I. Sis is executor She is living in home while settling estate and has invited her daughter and daughters boyfriend to live there as well. No one has ...

    Richard’s Answer

    I agree with Loraine DiSalvo, but i would like to add that your sister's not acting to settle the estate in a timely manner that has the effect of benefiting herself could be a breach of fiduciary duty, and this is further bolstered by permitting others to live in the home as well. She is not in the home based on her being their before for no rent but as a likely joint owner, and the no harm no foul argument, but this argument fails in several respects in this case since she is the fiduciary in charge taking steps to benefit herself over the benefits of the other beneficiaries.

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  • Can I file a will not for probate in Georgia but still be appointed executor for the purposes of filing tax returns, etc.

    My father in law died in December 2013 and named me as the executor in his will. All property except a car was jointly owned and does not need to be probated. Can I not probate the will but still be appointed executor so I can close accounts, ov...

    Richard’s Answer

    In short, if a valid Will exists, i must be filed for information purposes at a minimum. But this does not do anything satisfy the filing requirement. The appointed executor in the Will would then need to probate the Will to be empowered to deal with all the things you stated you wanted to deal with and more. Without probate you are simply a stranger with no power whatsoever. Sorry for the bad news.

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  • Do I have the right to my deceased father's property if he had a sales agreement with his sister before he passed?

    My deceased father owned 6 acres of land. A few years before he died, he signed the land over to his sister for fear of losing it. He had thousand of dollars in debt, including medical bills and child support, and was afraid a collection agency wo...

    Richard’s Answer

    Here is how this works. Your father died (sorry for your loss). As for who gets his property, it depends on how it was owned. Anything he owned that did not pass another way (via beneficiary designation or joint ownership with rights of survivorship) passes to his "estate" which is controlled by state law and either his valid Will, if he had one, or the state law Will (the rules of intestacy) if he did not have one. So, the first issue is to determine what assets he owned and how they passed at his death, to his estate or otherwise. After this is determined, the assets are paid out / distributed via a priority system. Under this priority, you should note that creditors are paid before any beneficiary or heir receives any estate property. The exception to this rule is for a claim of Year's Support, but this only applies to spouses and minor children, which you are neither as far as i can tell from the question. So, now let's get to your specific question. Your father sold his property to his sister during his life and took back a promissory note (an "I owe you"). The Note has been partially paid but is likely in default for non-payment. What happens is that the Estate's Executor (if a valid Will exists after the Will is Probated) or the Administrator (appointed by the Probate Court after proper Petition) steps into the economic shoes of your father, the deceased. So, if the Note is in default, then the Executor / Administrator has the right to take action under the Note pursuant to the default, likely to take back the property, but other options may also exist. This is a fact question that will depend on the Note documents, etc and what has and has not occurred to date. One exception would be if the Note was structured as a self-cancelling installment note, i.e., one that terminates s fully paid upon the seller's death. It is highly unlikely it was structured this way but wanted to point the possibility. So, at the end of the day, your aunt likely does not get to keep the property unless she follows her obligation to fully pay for it pursuant to the Note terms, unless she is given some relief despite her past default on paying the Note properly. Assuming the proper actions are taken at the Probate Court do get the Executor or Administrator appointed, he or she can take the necessary actions to deal with this property issue. But, do not forget what i stated before. The creditors come before any beneficiary or heir. In other words, if your father had more creditor claims than assets, even after considering the property that the Estate could get back, the issue is really one of paying creditors and nothing will pass to you an your father's heir. So, this is a fact question and more facts are needed to make any proper recommendations as to what should be done, other than to tell you that this is likely not a self-help matter and you should seek the advice of competent legal counsel. Good luck.

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  • What can I do regarding estate planning with an ongoing appeal and a settlement offer on the table?

    During pre-trial motions on a case where I'm asking for big money, an issue decided against the defendant Georgia company is on appeal. We never got to start the trial. Meanwhile, the company has offered to settle. It's enough money so my medical ...

    Richard’s Answer

    The simple answer is if you are in the middle of a lawsuit and your lawyer has vanished, you need to act immediately or your rights could be damaged. If the lawyer really vanished, although this is unlikely, he could be subject to an ethics claims against him as well if his actions cause you damage. But in any case, from your question it looks like you need legal counsel assist you in this litigation matter to its legal completion. As for estate planning and the setting up a trust for your pets, interesting request. Yes, it could be done but does not seem to be a prudent way to spend limited funds.

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  • Effect of offspring being left out of will on purpose

    After research and some excellent AVVO answers, I have determined that there is no reason ( here in Georgia ) to bother with the expense of probating either of our wills when the time comes. We have one adult child who is not in either will; wordi...

    Richard’s Answer

    • Selected as best answer

    As the other attorneys responded, in GA a Will must be filed after someone's death. However, the need to Probate (prove) it will depend on their being assets in the Estate that needed to be dealt with. Generally, no assets then no probate. Your issue of disinheriting someone has no effect on the need or not to probate, but steps could be taken to actively avoid the need to probate by avoiding having any assets pass to the probate estate.

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