Skip to main content
David Preston Crandall
Avvo
Pro

David Crandall’s Answers

13 total


  • Do I need an attorney

    Grandma passed away. The house was left to 2 sons 50/50 as beneficiaries. One son passed away before the grandma. Do the children of the deceased beneficiary have a claim to his portion of the house?

    David’s Answer

    Do you need an attorney? Yes.
    The reason is due to the complexity of answering the second question "Do the children of the deceased beneficiary have a claim to his portion of the house?" Because the answer is, "It depends."
    What interest did Grandma have in the house when she passed? fee simple? co-tenant? joint-owner? life estate owner? trust beneficiary?
    Did Grandma have a mortgage against the property? Was Grandma receiving aid from Missouri Healthnet (Medicaid) when she died?
    How did 2 sons acquire their interest? by will? by beneficiary deed? by remainder interest in a life estate? by trust bequest?
    Is the distribution to sons as joint tenants with right of survivorship? or as tenants in common?
    Without answering these questions, it's not possible to determine how much, if any, interest the children of deceased son have in the house.

    See question 
  • Can a spouse sell her home, deeded under joint names with husband, following his death? Any issues with probate laws <

    Resident of Missouri with clear title.

    David’s Answer

    There are three types of joint ownership recognized in Missouri. Whether or not the surviving spouse has the absolute right to sell the home (without the necessity of probate) will depend largely on which type of joint ownership is listed on the deed. The deed will need to be examined by an attorney to answer your question.

    Even if the joint ownership is such that the title passes to the wife without probate, then a new deed should still be filed with the Recorder of Deeds in Jackson County to record the transfer to the survivor. This is advisable, though not legally necessary.

    See question 
  • What steps need to be taken for someone to open an estate in probate?

    In the state of Missouri, what documents, and what steps need to be taken to open an estate in probate? Is a lawyer needed to open an estate in probate? Is the person that opens the estate in probate automatically appointed as the administrator o...

    David’s Answer

    Opening a probate estate is done by filing opening documents with the court. The exact type of documents that need to be filed depend on the value of the estate, who the petitioner is, and whether there is a will.

    Yes, a lawyer is needed to open a probate estate.

    No, the person who opens the estate (signs the petition to probate) is not automatically appointed as the administrator. The court will appoint the person who is most appropriate depending on (1) what the will, if any says and (2) what family or other interested persons might be willing and able to serve. If you have an interest in the estate, you can request to be appointed as the personal representative, but that does not mean you will automatically be appointed.

    If there is some question about whether potential heirs are really entitled to a share of the estate, you can contest their eligibility. They would then need to demonstrate to the court's satisfaction that they are eligible as heirs (or children), which might include DNA testing.

    See question 
  • Are my stepchildren entitled to anything and do I have to probate?

    My husband died without a will. I was sole beneficiary of all life insurance and retirement. Our house, vehicles, and bank accounts were in both our names.

    David’s Answer

    Robert is right. It's difficult to answer your question directly without more information.

    There are two different kinds of joint ownership in Kansas. What most people expect is called Joint Tenancy with Right of Survivorship. With this kind of joint ownership, the survivor(s) automatically take title to the property after the decedent dies -- no probate is required. But this kind of joint ownership is not the legal default. Special language is required on the titling documents to make this type of ownership effective. If that language is not present, then the joint ownership is considered the legal default -- Tenancy in Common. Property held by Tenancy in Common will be required to go through probate.

    If you were the sole beneficiary of the life insurance and retirement accounts, then THESE assets will not be required to go through probate, but that does not mean that a probate estate will not be required to handle other assets.

    The only way to answer the big question "Do I have to go to probate?" is to examine each asset individually. That is beyond the scope of the limited interaction afforded by this site. You need to see an attorney.

    See question 
  • Are wills of the deceased open to the public?

    My Grandma passed away several years ago. I found out that I was part of her estate and would like to know if I could read her will.

    David’s Answer

    In Kansas, probate estates are usually opened in the county of the decedent's last residence. This is also usually where the bulk of the decedent's property is, but not always.

    If your grandmother had a will, and if the will was used to probate her estate, then, yes, it is available to you. You will need to contact the probate court of the county of her last residence. Ask if a probate estate was opened for her (if not check some other counties where a probate estate might have been opened). If so, then ask if a will was filed in the case. There are usually minor fees for getting copies of court documents.

    See question 
  • Do administrators of an estate have to notify beneficiaries? If so, how do they do that and in what time frame?

    Estate is in probate, however, the majority of the deceased funds are designated through annuities, POD, and TOD. The administrators are not kind people. Does probate require that they turn in paperwork proving that they notified the beneficiaries?

    David’s Answer

    The simple answer to your question is yes, the beneficiaries of a decedant's estate must be notified, and yes, the administrator of the estate must demonstrate that required notices were given.

    The timeframe for the notification is when the probate estate is opened, and at various points afterward, including the closing of the estate. If a will is involved, the Kansas estate must be opened within six months of the decedent's death or the will is no longer effective.

    However, it would appear from your question that non-probate assets (annuities, POD, and TOD) are involved. These assets do not go through probate, and there is no court reporting for these assets. Generally, the beneficiaries are required to notify the companies holding these assets of the passing of the decedent, and then request that the assets be given to the beneficiaries. If these companies (insurance companies or banks) find out about the decedent's death through non-beneficiaries, then they will usually inform the beneficiaries of the process to claim their money or assets.

    See question 
  • Does interest continue to add up on credit card accounts during probate?

    My husband has a lot of credit card debt. I am not on the accounts.

    David’s Answer

    Max is right. It will greatly depend upon the agreement your husband had with the card issuers. But, three things to keep in mind:

    First, if you are not an authorized user of the account, then you are not obligated to pay the debt personally. It is a debt that must be paid by your husband's estate, but only if the card companies properly and timely file their claims.

    Second, anything your husband purchased with the cards (as well as anything else he owned at his death) may be used to pay these debts (if the claims are properly filed).

    Third, sometimes there are death benefits associated with credit cards that could pay the outstanding debt and/or give the estate cash after the death of the card holder, but you must make ask they issuing company about death benefits. They often do not volunteer this information.

    All Kansas decedent's estates are required to be handled by an attorney.

    See question 
  • Who can open probate when there is no spouse and no living relative with enough funds to hire a lawyer?

    My child's father died unexpectly and had no will. His parents are deceased. He has 1 sibling. 2 blood children and 1 child that he signed the birth certificate but could not physically have fathered due to a tragic accident 10 years ago. All the...

    David’s Answer

    Anyone with an interest in the estate (any potential heir or person with interest in the property to be distributed - like a creditor) may open the estate in probate. A bond is not required to do so. However, a bond would typically be required of the person appointed as Administrator of the estate. If there are adequate assets in the estate, you could petition the court to appoint a neutral third party (like a lawyer or CPA) as the Administrator. The bond (if required) and fees of the Administrator would then come out of the estate assets. This would likely increase the cost of the probate administration, but you would not need to post money up front to have the administration completed.

    See question 
  • What happens to the money if a house is sold and parents are in a nursing home at the time of sale?

    Living in Lawrence Kansas, and may have to go into a nursing home. We are in our home and it is paid for, we just pay taxes and insurance on it now. We do not want the house sale money to go to a nursing home, Do we have a way out of this mess? We...

    David’s Answer

    There are options to save part of your estate to pass on to your children, but you must engage in some advanced asset protection planning to do so, and the sooner you do so, the better. This is a very complicated area, and you have not provided nearly enough information for me to give you a straight yes/no answer, but I will try to give you some general guidelines:

    Someone will have to pay for the nursing home. If you do not have the money, you could qualify for Medicaid. If both you and your spouse enter the nursing home in Kansas, you can keep no more than $3,000.00 of "countable" assets. All other assets must be expended before you will qualify. A home (up to $500,000 in equity) is NOT a countable asset. So, you could qualify for Medicaid while you own the house. HOWEVER, once you and your spouse pass away, the state of Kansas will recover from your estate (including your house) the funds it has expended for your care in the nursing home.

    As I said, this is complicated, but there are ways to ensure at least some of your estate passes to your children. How much depends on what your total assets are, how soon you go into the nursing home, and how soon you do appropriate planning. I recommend you meet with an Elder Law attorney, as soon as possible.

    See question 
  • Can you transfer power of attorney from an individual from one state to another in another state?

    A relative who has power of attorney over a family member lives in one state and I wish to take it over, however I live in another state. I will be bringing this family member to live with me. What steps do I need to take.

    David’s Answer

    If the existing Power permits the Agent to name a successor, co-agent or alternate agent, then this is possible. If not, then the Principal (the person who signed the Power) will need to execute a new Power naming you as Agent. Of course, this can only happen if the Principal is still competent. If the Principal is not competent, and the existing Power lacks the necessary provisions, you will need to open a Guardianship and Conservatorship proceeding in Probate court.

    See question