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Todd D. Schmitz
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Todd Schmitz’s Answers

67 total


  • How to proceed after the death of parent who has a living trust

    My father is currently hospitalized with a grim prognosis of maybe one week until he passes. He has established a living trust in which I am the sole beneficiary of. This trust includes a home approximately $135,000 in value. IRA of $25,000, mo...

    Todd’s Answer

    The trustee needs to follow the terms of the trust. There are specific steps that must be followed. A trustee may incur personal liability if those steps are not followed. If the living trust expresses your father's intent, then you may want to review the title on the accounts to see whether or not they are owned by the trust or name the beneficiary as the trust. If the IRA was larger, you might want to also have the trust language reviewed to make sure it has helpful IRA language in it. Also, check to see if an real estate was deeded to the trust or not. If you are is power of attorney agent, then there are likely several things you could do now while he is living that could reduce some cost and delay down the road.

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  • Grantor has passed can a successor trustee occupy a homestead that was in a trust and claim a principal residence exemption?

    ...if everyone involved in the trust agrees.

    Todd’s Answer

    If the family wants the answer to be yes, then this is possible. Generally, whover the beneficiary is of the trust is entitled to trust assets, including the real estate, if it was owned by the trust. If the trust does not have restrictions, and if it the real estate is distributed to a beneficiary, and if that beneficiary does use it as their principal residence (and does not have another principal residence at the same time) then this can be done. There are ways that beneficiaries or other trustees could try to prevent this from occurring.

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  • Our mother is beginning her spend down process and will be released from therapy this week. Can she pay the taxes on her house?

    She will be released on 5/17/14. We would like to pay her summer taxes before her money is gone. Is that allowable?

    Todd’s Answer

    Yes, the property taxes on her primary residence may often be paid without a problem, but what is confusing to me is that you said she, "will be released," yet you would like to pay the taxes "before her money is gone. " If she is being released, then presumably the expense of therapy would be gone, which might leave money for taxes and/or home care? But there are often planning techniques that can be used that can be helpful for Medicaid benefits and/or Veterans benefits, which might help greatly reduce, or sometimes even eliminate, the cost of care in a facility, or home care.

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  • Can our sister, the activated POA for HC and financial for our mother, 96, who resides in a Nursing Home, rent out her home?

    Two of six siblings want her home left as is. She could live for many years yet, as she is quite healthy, except for dementia and a bad knee. Four siblings feel that her house should not be left to just deteriorate and should be rented out. Wha...

    Todd’s Answer

    The previous two answers are very good. The first step would be to take a look at the durable power of attorney document to see what it permits, and if there are restrictions (such as, are doctor's notes required?) If she is in a nursing home, it may be possible to get Medicaid benefits. But rental income would have to be disclosed to the state. Some of the rental income may be kept to offset some of the house expenses.

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  • I have 3 sons and want one taken off my will.

    How do I do this.

    Todd’s Answer

    You may also want to consider a trust. And in the trust or will, include a solid no-contest clause.

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  • Should friend have elder mother sign off on mutually owned house so it won't go through probate should she die in nursing home?

    I told him this is important to find out about since she is elderly. My friend paid for and has lived in the house in Michigan since 1975 and the house is all paid for. His sister is the guardian of the mother so would she be the one to sign off...

    Todd’s Answer

    It's likely you need an attorney, depending on the reason for the guardianship. There is a way to protect the house. But it will be important to determine who has legal authority and capacity to do so.

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  • I would like information on Trusts. How do I get a copy ? The Trustee is very secretive and I have a vested interest

    What must the Trustee disclose and when? Right now he is taking things that are of substantial value from the deceased home. What are my rights ?

    Todd’s Answer

    If you have not yet requested a copy in writing, you may want to check with an attorney about whether it may be helpful.

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  • CanI be left a home when person dies with rt to live in untill I die.then he stipulates who it goes to after my passing?

    He's my father.

    Todd’s Answer

    Yes. There are several ways to accomplish this, including certain deeds, trusts and wills. Each has advantages and disadvantages, and different costs. The scenario you describe is frequently done.

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  • Does a subsequent written statement trump a documented trust if provisions allow for this

    Grantor executed a trust in 2005, ammended in 2008. Included in the trust are beneficiaries with percentages for the distribution of assets. Trust also states grantor can write down her wishes of how she wants her property, assets disbursed prior ...

    Todd’s Answer

    It's possible the hand-writing and the typed trust are entirely consistent. An issue is whether the hand-writing is an amendment to the trust or whether it is simply making the intent clear regarding distributions of personal property. It is common for revocable living trusts to refer to a "list" or other document that would distribute personal property according to the way the grantor hand-writes, or signs a list of personal property expressing their intent regarding personal property distribution.

    For example, a trust may state that the grantor may write down distributions of personal property. If the grantor does so, then the trust likely indicates whether such personal property items are to be distributed before any other distribution determination is made, or as part of a beneficiary's share. If the grantor hand-writes, "Lawn mower to my neighbor," then the Trustee may be required to give the lawn mower to the neighbor before distributing the balance of the trust. If the estate is large, the trust would likely indicate whether any taxes attributable to the trust are to be paid by the beneficiary receiving the personal property or whether they are to come out of other assets of the trust.

    If the hand-written notes are regarding distributions other than personal property, such as cash or accounts, then you would need to determine whether the hand-writing is a proper amendment. There are specific legal requirements for a trust amendment that must be met before a trustee has a duty to follow an amendment.

    You likely need representation in your role as trustee. If the trustees and beneficiaries agree on what the hand-writing means, then your risk is lower. If the trustees and beneficiaries cannot agree on what the hand-writing means, then you may desire to go to court to get a judge to interpret what the hand-writing means.

    Before doing any of this, it would be prudent to determine exactly how assets are titled. If assets are not in the name of the trust, then it may not matter what the hand-written trust document says.

    Remember, if the trustees and beneficiaries make it difficult on you, then thanks to the 13th Amendment to the U.S. Constitution, you can always resign as trustee and transfer the issue to the next successor trustee! :)

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  • Can a person have 2 different Revocable Living Trusts?

    I would like to setup a joint trust with my husband and fund it with what we own together. I have a home only in my name. I would like to put it in a seperate trust.

    Todd’s Answer

    This can be done. It would be important to know the reasons why because there may be other ways to accomplish your goal. If your goal is that your husband have no control over the house, and that you wish to leave the house to someone other than him, then having a separate trust can make sense.

    But if your husband would be the trustee or beneficiary of your separate trust anyway, then you might be able to accomplish your goal with a joint trust, and have the advantage of changing the nature of the house to tenancy-by-the-entireties inside the joint trust, which could provide you some additional asset protection instead of a separate trust. There would be special action you'd have to take to do this.

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