Skip to main content
Kirk D. Falvay

Kirk Falvay’s Answers

14 total


  • Does anything need to signed after my fathers will is probated

    Do i have to sign anything to approve of how things were done ??

    Kirk’s Answer

    I do not know the specifics of Oregon law, but generally in probate,if you are not the personal representative (executor), you will not be required to sign anything. You will be given a copy of the inventory of assets, and will receive accountings. Before any funds are sent to you, you will probably be asked to approve, in writing, the accounting(s) submitted to you before monies are released. That may or may not be a requirement of your state law.

    At any time you should have the right to petition the court and request a hearing if you feel the estate is not being handled properly in any way.

    See question 
  • Does my mom's IRA of which I am the beneficiary count as an estate asset for her unpaid bills?

    My mom left me a Totten trust which I was told transfers outside of probate so I am not liable for paying her debts out of it. She also has an IRA of which I am beneficiary and was told to just send her death certificate to claim it, no probate n...

    Kirk’s Answer

    You will receive her IRA outside of probate. Therefore, you will not be legally required to pay any outstanding debts whuich she may have owed when shed died out of these proceeds.

    Make certain the company where these funds are invested advises you the options which you have to receive these monies. You should be able to stretch them over your life expectancy based on goverment tables. If you choose to do this, the monies will continue to grow tax deferred, and you will end up receiving much more if you take the payments over time.

    See question 
  • Who sets the price for real estate holdings or can the executor do this?

    As the executor of an estate with four beneficiaries can I set the sale price for real estate holdings on an estate valued at not more than three hundred thousand dollars?

    Kirk’s Answer

    I agree with the attorney who said you have to sell it at its' fair market vale. That can be determined by appraisal, or just obtaining 2 or more market valuations by realtors.

    However, the best protection available to you is to put the property up for sale, asking for an amount determined above. If you receive an offer which you believe to be fair to the estate, make your acceptance contingent on court approval. Then file a petition with the probate court, and provide notice to the heirs and creditors. If the judge approves the agreement, all interested parties will not have a claim against you for selling it for an amount too low.

    See question 
  • Lawsuit after estate is closed

    My husband died with no will. I became executor and handled the estate with much loss to creditors. I am involved in a wrongful death lawsuit and we have to re-open the estate. Will I have to pay those creditors from any monies recieved?

    Kirk’s Answer

    In a wrongful death lawsuit there are two classes people who may recover. One is the estate. The estate's recovery is for the losses sustained by the decedant...in this case your husband. If the final settlement or judgment makes an award for your husband's losses (such as conscious pain and suffering before he died), those monies will be paid to the estate and available to creditors of the estate.

    The other class of recovery are your husband's family members. The personal representative brings the action for them collectively. If there is a recovery, they must agree on the distribution, or the court will decide in a separate proceeding. Monies paid to the family members are not available to your husband's creditors.

    Therefore in your case, if appropriate, recovery should be sought only for the family members , and not for your husband's losses before he died.

    See question 
  • To obtain a probate bond for KY as an Administrator of an Estate, do I need a lawyer?

    To obtain a probate bond for KY as an Administrator of an Estate, do I need a lawyer? I have reviewed several online bond applications which require an attorney's name. Also, I called a few local insurance companies that said I would need a lawye...

    Kirk’s Answer

    Unless otherwise required by your local law, you do not have to have an attorney to acquire a bond.

    What I believe you are running into is underwriting standards set by the insurance companies you have looked into. They are apparently stating that they will not write the bond without you having an attorney. By requiring this, they believe their risk of paying on their bond is substantially reduced when an attorney is involved in the process.

    You can keep checking with insurance companies to try to find one which does not require you to have an attorney. If you cannot find one, try to find an attorney who will let you do as much of the probate work as you are able to keep your costs down.

    See question 
  • My father passed away his wife says theres a will my mother has a will namming all of us as his heirs...

    my parents divorced when i was three my older sister was 6 the remaining 4 siblings were adults. my mom has a will signed by an attorney stating all of his estate goes to us 6 children and names us. his current wife says he had a will and we are ...

    Kirk’s Answer

    Just because there was a new will, there is no assurance that it will be needed or necessary to transfer assets to his wife. The will applies only to assets which were in his name alone, and not joint with her, or where she was named as a beneficiary.

    If there were assets in his name alone, and no beneficiary designated, she will have to start probate and notify you of the proceedings. You will be entitled to a copy of the will. It can be contested, but only if you can establish legal grounds such as his incapacity or someone's undue influence in obtaining its signing.

    If you find out that probate has started (in the county where he resided when he died), I would recommend you consult with an attorney to determine your rights.

    See question 
  • Estate on a person who is legally seperated

    My mother and father have been legally seperated for 20 years. My mother had no will. She was granted by the courts to live in a house both her and my fahter owned. When she died my father took over everything she owned. Do I, as her daughter,...

    Kirk’s Answer

    Typically, personal property is determined to be owned jointly by a husband and wife. When either dies, the other becomes the owner of the propery. Unless there is a written agreement to the contrary,your father would be entitled to her property.

    There may a court order or other agreement by which their property become their own separate property. In that case, you may have a claim to her property as an heir. You will need to have someone check the public records, and hire an attorney to be able to make your claim.

    See question 
  • If one beneficiary conteststhe sell of estates and has to get a lawyer, does the estate pay for that lawyer orwho would

    family estate is being sold and the executors have prepped the property for subdeviding, they now do not want to sell it at auction but buy themselves, one beneficiary does not agree and is being pushed into selling it, if the beneficiary gets a l...

    Kirk’s Answer

    Typically when a person hires a lawyer, they are responsible for paying the fee to their attorney. In cases where the person prevail, the court may order the fees to be paid from the estate...especially in situations where there has been a financial benefit to the estate.

    In some states the personal representative is prohibited from purcahasing property directly from an estate. Even if it is allowed, the representative should seek approval from all the beneficiaries and/or the court prior to completing any purchase.

    If the purchase price is less than fair market value, then approval should not be given. The personal representative should not be permitted to benefit at the expense of the other beneficiaries.

    I hope this helps.

    See question 
  • Do we have to probate my mom's will?

    My mother recently passed away. In her will, it leaves everything to my stepfather. The only asset is a house valued at less than $100,000. Mom had 2 natural children and 3 step children. We are all in agreement to sell the house and put the money...

    Kirk’s Answer

    If the house was titled in just your mother's name, you will have to open probate to be able to sell the home or transfer title to your step-father.

    If he is going to be admitted into a nursing home, selling the home may not be the best way to go. You should consult with an elder law attoney. You may want to transfer title into his name instead of selling the home. He/she can explain your options.

    See question 
  • Is a co-owned cd considered part of the decedant's estate?

    My mother passed on and I am co-owner on a cd. I am now the owner of the cd. Is this money still considered part of her "estate" in Indiana?

    Kirk’s Answer

    As the co-owner, you became the sole owner od the CD upon your mothre's death. It is not part of her probate estate, if an estate is opened.

    It is part of her taxable estate for inheritance taxes on both the federal and state level. If she died this year, there would be no fderal tax (unless Congress passes retroactive legislation). Indiana has an inheritance tax to which you may be subjest. For that answer, you will need to consult with an accountant or attorney.

    See question