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David Andrew Greene

David Greene’s Answers

66 total


  • State of tennessee. Brother died and no other next of kin. How do I get custody of his assets? Like storage facility, car, and

    No other details

    David’s Answer

    If brother did not have a will and you are next of kin, you have first dibs to qualify as the Administrator of his estate. This will give you the responsibility of administering his estate, together with the authority to do so (including control over the assets). A probate attorney will probably need to be retained to initiate the proceedings in the Chancery court of the county where brother died, and then can guide you as to your rights and responsibilities as Administrator.

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  • Can I do a 1031 exchanged and sell my rental property and buy my siblings property at fair market value?

    The bought property will be converted into a rental unit so it is of like-kind.

    David’s Answer

    If sibling will be receiving cash as part of the transaction (something which appears likely from your question) that may pose a problem. The IRS would likely deny the "nonrecognition" usually afforded a 1031 exchange (meaning any capital gains tax would be due, and not deferred). It's legalese, but if you want further reading, see Revenue Ruling 2002-83. http://www.irs.gov/pub/irs-drop/rr-02-83.pdf

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  • Is there a priority to an income beneficiary of a trust?

    As an example, lets say the donor dies w a revocable trust that names 4 beneficiaries- A. His Daughter B. His Son and 2 Nephews, C. & D. The trust directs upon his death that A. $500,000 be given to his daughter, B. $300,000 to his son. In additio...

    David’s Answer

    A full review of the relevant trust would be required to give a complete answer to this question, but as Attorney Goldman mentioned, specific gifts are generally paid first, and the remainder (or "residuary") is what generates the income that would be paid over time (per the trust terms) to A&B. If there are not sufficient assets to pay all the specific gifts, they're typically pro-rated. Based on what you've shared, it looks like each beneficiary will get ~60% of the specific gifts indicated.

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  • How do I become power of attorney of my husband while he is in jail

    my husband gets ssd for mental disorder

    David’s Answer

    If he is competent, he can grant power of attorney despite his incarceration. If his mental disorder is such that his capacity to execute legal documents is compromised, that's probably not an option.

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  • I need to make an adjustment to my will, I want to add my present wife to the will.

    New wife and I married now 6 years.

    David’s Answer

    A small change to a will can be done with a codicil. More wholesale changes are probably best done by revoking the old will and starting over. A good estate planner can advise you on which method is most appropriate for your goals.

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  • Do you recommend professional trustees to be the executor/trustee of your family's trust?

    I don't like giving a stranger all the power. Please advise!

    David’s Answer

    I think the answer is, "it depends." I've added a link to an article that discusses some considerations in making the decision.

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  • Would it be best for my mother to sign the deed to her house over to my brother right now that she is still living or in a will?

    what are the pros and cons of leaving the house to my brother in a will?

    David’s Answer

    One other consideration in addition to those mentioned by Ms. Santaella is "basis" for income tax purposes. There is capital gains income tax on the sale of certain assets that have increased in value. (For example, if you buy an asset for $10, and later sell it for $17, there could be capital gains tax on the $7 appreciation of value). If you gift something, the basis of that asset stays the same in the hands of the donor. Generally, if you pass something through your estate, the basis "steps up" to the Fair Market Value on the date of death. This can save substantial tax on the sale of that asset in the future.

    If the house has appreciated in value, and if there is any possibility of his selling the house in the future, it may be beneficial for him to inherit the house, rather than receive it by gift.

    She can also bequeath it to him by use of a revocable living trust, which would avoid probate, but still get basis step-up after death.

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  • Is the executor doing her duties properly?

    Can an executor be held accountable for intentionally lowering the price of the house for her son to buy it? She is also putting it off until February so her son can finalize his divorce. Also, she hasn't kept in contact with the beneficiaries at ...

    David’s Answer

    As executor she has a fiduciary duty to act in the best interests of the beneficiaries. This includes things like sale of property at its fair market value. Purchasing items from the estate at a discount could be an act of self dealing and a violation of her duty of loyalty to the beneficiaries. She also has a duty of candor--that is, keeping the beneficiaries informed. If she hasn't and won't account for the activity within the estate, that's a problem. If the amounts are substantial enough, it may be worth having an attorney investigate.

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  • Contact "probate" - what dos this mean?

    What does this exactly mean?

    David’s Answer

    In Virginia there isn't a separate probate court. If you're trying to contact the probate court in Virginia, see the Circuit Court Clerk in the relevant county or city. I've attached the link to the circuit court for Prince William County, VA.

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  • Can I cash a check made out to my daughter's estate?

    My daughter passed away and I canceled her AAA membership. They sent a check fore reimbursement made out to her estate. She has an insolvent estate and I have chose not to probate it. I am her mother and she has no spouse or children. Sh...

    David’s Answer

    There is a small estate procedure in Virginia that is simpler than a full-fledged probate. Depending on what assets she had, the simplified small estate procedure may be the best way to proceed. The local circuit court clerk cannot give you legal advice but may be able to point you to the required forms. A probate attorney could also steer you in the right direction without a lot of time. Of course, this all hinges on my assumption that daughter died in Virginia. If not, some other states have similar procedures, but you would need to find out about those from an attorney in the jurisdiction where your daughter was living. My condolences on your loss.

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