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Douglas C Martinson II
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Douglas Martinson’s Answers

352 total


  • If you have a likely case of fraud/ undue influence in the procurement of a will, do you file criminal or civil action or both?

    If fraud and undue influence is proven in a civil action, does that make it a criminal act that maybe prosecuted? Should it be looked examined criminally first, then consider civil action?

    Douglas’s Answer

    This is a civil and not a criminal case. To have a criminal case they would have had to taken money or exploited her during her lifetime.

    Your only remedy is a will contest.

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  • Father died 1998 never opened will mother was in nursing home possible lean on the 160 acres advice?

    No idea where to begin other family says dont open we will lose property. Mother was suppose to inherit the house and land it's on dont wanna lose anything she died 2013

    Douglas’s Answer

    It will depend on whether your mother was on Medicaid and if Medicaid was paying for the nursing home bill. It will also depend on how the property was owned (just in your father's name or if it was Joint Tenants with Survivorship). You will have to probate one of their estates and possibly both, to get the property into you or your siblings names.

    Medicaid could possibly have a lien on the property, but that will depend on whether your mother was on Medicaid.

    You should contact an Elder Law attorney with Probate and Medicaid planning in your area.

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  • My uncle gave me POA. After removing the person he appointed. Before me

    He has went to court got temp. Guardinship over the uncle.my uncle and myself went to his bank and had acct. number changed. Now it appears I don't have POA should I change the bank number back. Will I get into trouble for this

    Douglas’s Answer

    Yes you could get in trouble for transferring assets of your uncle under a POA you know has been revoked. Since it appears this matter is in court, you should not do anything with your uncle's assets. Also, if your uncle is in a nursing home he will need those assets for his care and any transfer of them could jeopardize his qualifying for Medicaid if he runs out of money and he needs to apply for benefits.

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  • Can my sister get p.o.a of my mom without telling me about it ?

    My mom has Alzheimer, my sister went to her attorney and got the p.o.a, I asked her why she did she do that and we are the only children mom has, I told her both of our names should have been on it, she tells me her attorney said she couldn't brin...

    Douglas’s Answer

    • Selected as best answer

    Yes, she can. It doesn't mean that it is valid or legal or cannot be challenged but neither she nor your mother have any duty to tell you any of her legal business. She could sign a will and not tell you either. But if she didn't have capacity to know what she was doing when she signed it, it can be challenges.

    And if your sister misuses the PoA she can be held liable for that.

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  • My mother passed and has property in Alabama and Florida. Do we need to hire an attorney in both states for probate??

    Her will divides assets equally between four children. Both deeds convey the properties to the children.

    Douglas’s Answer

    If it is real property, you will need to probate the estate in both states. You will probate the main estate in the state where she lived and will probate an ancillary estate where the other property is.

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  • My uncle is in the nursing home he revoked POA from brother inlaw. Gave me POA can I have his banking acct. changed

    I opened him up another account in his name he was present at the bank when this was done. Can he write checks on this new acct.

    Douglas’s Answer

    You can write checks to pay for your uncle's care. You need to save receipts and not use the money for yourself or anyone else. The new account should be in your uncle's name or FBO (For Benefit Of) your uncle.

    If he is in a nursing home, there will be questions about his competency and ability to revoke the prior PoA and enter into a the new PoA with you. Also, if he is in a nursing home, Medicaid could come into play if all his assets are spent on his care and Medicaid will have to start paying. There is a 5 year look back period and every check and transfer of assets that has been made in the last 5 years will have to be accounted for.

    You need to consult an Elder attorney. Hopefully, an attorney handled the revocation and execution of the PoA's.

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  • Can anyone get guardianship over an elderly person when someone else has power of attorney over that person

    My uncle is the nursing home his brother inlaw by marriage has gotten temp. Guardianship a few days ago, the problem is I have power of attorney over him that gives me power to be his guardian. Which of us has the guardian rights. Thanks linda

    Douglas’s Answer

    • Selected as best answer

    If you are nominated as the Guardian in the PoA, then you will need to file a counter-petiton with the court to request that you be appointed as the Guardian. The court will take that into consideration and give it a lot of weight. The goal of the court is to protect your uncle and make sure that the people are taking proper care of him and making good decisions regarding his health care.
    The Temporary Guardianship is good for 30 days now (it was only good for 15 days until the law changed this summer). It would be interesting to know why they applied for Guardianship when he was already in a nursing home. Were there health care concerns that needed addressing, were you taking care of the medical desicions for him? They may be trying to move him.

    You do need to seek legal advice asap to be named Guardian.

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  • Can I terminate the third-party guardian of my incapacitated parent and become power of attorney?

    A temporary guardian was appointed to my father (he lives in another state) and we would like terminate that guardianship and become his power of attorney. Can that be done and in what order? My father wants me to be over his affairs. Can he si...

    Douglas’s Answer

    If there is a Guardian over your father, he may not have the mental capacity to sign a PoA to you. To get Guardianship, he would have to have been declared incompetent. You can petition the court to be his Guardian. There will need to be a hearing with notice to you to appoint a Permanent Guardian. There will be an attorney appointed by the court to represent your father's best interest and a Court Representative to file a report and recommendation to the court.

    You need to seek legal advice asap.

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  • Can probate on a will be shorten in the state of Alabama? Also what does it cost to probate a will?

    My mom passed away in March 2014, the court house told me that I did not have to probate her will. Now that I am selling her house I am told that I have to probate her will. I paid all bills that she had left and closed all her accounts. I am the ...

    Douglas’s Answer

    Since the property was solely in your mother's name and she had a will, you will have to probate it to get the property titled into your name. You have to prove to the world that this was your mother's true Last Will and Testament, that you are the only heir and that there are no creditors. And the way to prove that is to probate the estate. Otherwise you will not be able to give good titled to the property and a bank will not make a loan to the buyer without good title.

    If your brother had any children, those children are heirs at law and must be notified of the Probate proceedings. If the will left the property to you and your brother, per stirpes, those grandchildren will inherit 1/2 of the estate with you.

    I would advise you call a probate attorney asap and get the estate opened by probating the will.

    I had this come up in Huntsville where the Tax Assessor told my client that they didn't need to probate the will. Only when she went to sell the house did they find out they needed to. So get your legal advice from a licensed attorney in your county to be safe.

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  • Sibling borrowed a lot of money from mom, she has sense passed away...does he owe the estate the money?

    She has it documented...

    Douglas’s Answer

    The Executor of your mother's estate would have to bring an action against your brother or surcharge your brother's share of the estate for the money that was borrowed. He may claim that it is a gift, so the executor or the other heirs will have to have some evidence that the money was a loan and not a gift.

    You should consult with a probate attorney in the County where your mother died about probating the estate.

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