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Douglas C Martinson II

Douglas Martinson’s Answers

344 total

  • 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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  • I have an old trust (made about 30 years ago). Dio I need lawyer to revise or can I do it myself? What type lawyer?

    I'm 68 & have remarried & would like to revise to include him. I own 2 houses - one in Fl & one in Al., 200 acers of land in AL & approximately $300,000 in cash.

    Douglas’s Answer

    you should seek a trust or estate planning attorney to help you amend the trust. Doing it yourself can cause severe tax consequences and may end up not accomplishing what you want to do. Any legal fees to amend the trust could far exceed any advese consequences that cold happen if you do it yourself.

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  • Time frame to settle an estate that is not in probate. No probate involved.

    My mother's died 8 months ago. Sibling was appointed trustee of her estate. No probate involved. Trustee is sitting on a large sum of $$ and refuses to disperse or answer questions. Can I have Trustee removed.

    Douglas’s Answer

    There could be some income or Estate Taxes due (if the estate is over $5.34m) and there could be some expenses to wrap up. But you should ask for an accounting of the Trust and ask when a final settlement will be held. An attorney can write the trustee requesting an accounting under the terms of the trust or State Statute.

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  • Is there an advantage or disadvantage to filing a will contest before the will is entered into probate court?

    I've been told it is better to file contest before will is entered into probate court. Is this true and why? Thank you.

    Douglas’s Answer

    You need to seek legal advise as this is a very tricky area of the law and if you get it wrong your probate case can be dimissed. The issue is a pre-admission contest in Probate Court vs. a Post-Admission Contest in Circuit Court.

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  • Father died an has 3 kids an didnt leave a will ,? how can probate be omitted ,when all kids are in agreement w/who gets wat?

    All 3 are adult kids ,and he was very serious about the oldest and youngest not getting any property but no will was left as far as we can find ,but they both have extreme drug and alcohol problems ,there are many witnesses to the fsct of him want...

    Douglas’s Answer

    I agree with th answer given by Attorney Elie. Unless he had a will in writing, all of the children will share equally. If there is real estate in involved the estate must be probated. Probate is the process of proving that your father died, that he didn't have a will (or if the will filed is his true last will and testament), to prove all of the heirs and see if there are any creditors. Creditors and heirs must be given an opportunity to file a claim against the estate.

    Any witnesses as to what he would have wanted is inadmissable and the estate will pass to all of you equally regardless of what you know he wanted. That is why it is importatnt to have a will.

    Also, any assets held as joint tenants or pay on death or a life insurance or retirment account with a beneficiary will pass to the named beneficiary.

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  • Is there an advantage to filing a will contest before the will is entered into probate as opposed to after.

    I am considering filing a will contest and it has been suggested that I file before entering probate system. Any merit to that idea?

    Douglas’s Answer

    This is a vet tricky area of the law and you need to consult an attorney. There are Pre-admission contests in Probate Court prior to the Executor being appointed and there are removal actions to Circuit Court after the Executor has been appointed. You need to consult a local probate attorney to determine the best course of action. If you mess up and do it wrong, your contest can and will me dismissed. There is an Ala Supreme Court case directly on point.

    Good luck

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  • If someone wants to give me there house and ends up in a nursing home shortly after can the nursing home take it from me ?

    My mother in law has being helping her neighbor for years and my mother in law lost her house and husband a couple years back well this neighbor wants to give her house to my mother in law for all ur acts of kindness but someone told her that unle...

    Douglas’s Answer

    For your mother in law to qualify for Medicaid, you will have to provide bank statements and transfers she made during the last 5 years (60 months). If she made a transfer or gift within that time period, she would not qualify for Medicaid to pay her expenses of the nursing home.

    Medicaid doesn't TAKE it from her, they just refuse to pay her bill until the fair market value of the property is paid for her care.

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  • Can I probate changes in someone's will if they an unable for health reasons to leave their home? Would I need power of atty?

    I sit with a elderly cousin weekly. He has stage 4 COPD. I pay his bills, handle his banking, etc.. He has asked me to help him revise his will. Apparently it is not very specific in regards to his estate. He has 5 grown children and doesn't seem ...

    Douglas’s Answer

    You will not be able to change his will with a Power of Attorney, he must get a will done in writing, signed by him and witnessed by 2 people. If you were to change his, the will could be challenge by his children for undue influence.

    You need to hire an attorney to come to his house, meet with him and find out what his wishes are and then come back and witness him signing the will.

    You should not be present at any time during the meetings or the signing if you are going to be a beneficiary of the will.

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  • My siblings and I lost our father in 2002, and then our mother in 2013, who would the house go too.

    My baby sister has (just about always lived there) in the house with mom and dad,she move out for about 4yrs, I want to know who has control of the house, there is 9 of us.

    Douglas’s Answer

    I am sorry for your family's loss.

    The ownership and control of the property would depend on how the deed is titled and if your mother had a will. If it was titled in both your parents' names as Joint Tenants with Survivorship the property would pass under your mother's estate, assuming she didn't deed it to someone else during her lifetime.

    It your mother didn't have a will and the property passed to her at your father's death, one of the children who live in Alabama will have to file an Administration of the Estate with the Probate Court. The Administrator will be in charge of the estate assets, including the house. The Administrator must live in Alabama and be able to be bonded.

    You will need to see a Probate attorney in your County to get this done.

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