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John Somers Robb

John Robb’s Answers

19 total


  • Do I need to file probate if the only remaining assets is a checking account and I am the sole beneficiarie and relative?

    There is a will and I am the sole beneficiarie. The money was is Iowa and probate is not required in Iowa. the money was released to me, The decesed moved to Kansas four years ago and died in Kansas. I live in Kansas.

    John’s Answer

    If you are certain there are no additional assets, I would not go to the expense of filing the will. It appears that there are no assets for the will to operate on. You have 6 months to file the will before it becomes void in Kansas. If something pops up within the 6 months you can still file it if there is not another way to pass the asset (like a small estates affidavit.) even if the 6 months passes and an asset pops up, you are the sole heir and it will pass to you via a determination of descent proceeding. This proceeding is less expensive than a full will probate anyway. I would sit tight.

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  • What happens when Trustee refuses to act?

    There is very little in Mom's estate, but there are some valuable family heirloom kinds of items. They were loaned to my SIL. Mom had tried several times to get them back. I have the written communication she sent. It is in the Trust documents th...

    John’s Answer

    It is unclear from the facts whether mother is still living and suffering from dementia or whether she has died. If mother is still living, it is highly probable that the trust provides for mother's property to be used for mother's benefit during her lifetime and then pass at her death to you. If this is the case, your right to the property would not ripen until mother's death. Until then, the trustee must manage the property for mother's benefit, which would not include prematurely giving it to you. Additionally, it is often the case that estate planning documents give certain personal property to individuals at death BUT the individuals then proceed to make completed gifts of the items while living to other individuals. In this case, the lifetime gift normally takes priority and at death that property is not available for distribution becase it was given away during life. If none of the above is appliable, then you may be able to file a small claims case yourself in district court and recover the items that way. I would advise a visit with a local attorney.

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  • We live in Kansas. If I get alzheimers and go to an institution, will my wife eventually lose everything?

    In the event of alzheimers, does the surviving spouse get to keep the house and some of our savings, or will the cost of the institution take everything the survivor has left? Is there some way to protect the survivor's income or assets? We have...

    John’s Answer

    In Kansas and most other states this issue involves state Medicaid eligibility issues. In very simple terms, Kansas has a Medicaid program to pay for medical expenses if a person does not have resources to pay for their own medical expenses. The rules of the program are governed by Kansas law, within the framework allowed by federal laws. In Kansas, a person qualifies when they have non-exempt assets of $2000 or below. Long term care in a nursing home is considered a medical expense that Medicaid will pay if you qualify. The most basic rule for Medicaid eligibility is called the "lookback period." On the application they ask if you have made gifts within the past five years. If gifts have been made, a period of ineligibility is assessed. Gifts made prior to the five year lookback period are not considered. This is intended to keep people from gifting their assets away when they enter nursing care. When spouses are involved, the combined assets of both spouses are considered. Kansas has a program called “division of assets” that comes into play when one spouse needs nursing care and the other spouse does not. In its simplest terms, the state takes a “financial snapshot” of the couple’s resources on the first day of the month that either spouse enters long term nursing care. These assets are then divided between the two spouses. Normally the house is set over to the “well spouse” along with one car, all the household goods and half of the liquid assets. The “nursing home spouse” is allocated the remaining half of the liquid assets. The “nursing home spouse” then “spends down” their allocated resources to the $2000 level and then qualifies for Medicaid to pay medical costs. The “well spouse” gets to keep the assets allocated to them. Once Medicaid starts paying, a lien arises in favor of the state against the resources of the “well spouse.” This lien is not enforceable until the death of the “well spouse” and at that time the state recoups any Medicaid payments that have been made if there are remaining assets. This is all very technical and the rules change often. You need to see a lawyer to counsel you through this process. The short answer to your question is that nursing home costs can very possibly consume the assets allocated to the “nursing home spouse.” The assets allocated to the “well spouse” should remain protected for the use of the “well spouse” during their lifetime with the possibility of repayment to the state after the second death. Hope this helps. Good luck.

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  • How can I (a Marylander )obtain a legal guardianship of my nephew (both of his parents are in jail) who lives in California?

    My nephew is four years old and lives in Santa Ana with his father's mother because both of his parents are in Santa Ana and Orange jails waiting for their trial in California. The grandmother does not have any legal document to take care of the c...

    John’s Answer

    I am not licensed in California, but in Kansas the correct course of action would be to petition the district court to have yourself appointed Guardian and Conservator for the child. The proceeding requires notice to all interested parties, which would seem to include both parents and the grandmother. If nobody objects, the court will most likely appoint you. If you get objections, then it will be up to the court to do what is in the best interests of the child. At least that would be the drill in Kansas. I would recommend you hire an attorney in California. Ask them what the costs might be and what the odds of success might be. Then you can decide if you wish to proceed. Get the fee quote which should be free.

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  • Redemption Rights in Kansas

    My house is under forclosure but has not reached the sherrifs sale yet. I sold my redemption rights to someone and they are renting out my property to someone. I told my mortgage company and they said that my redemption rights do not go into af...

    John’s Answer

    Your mortgage company is correct that the redemption rights do not begin until the sheriff's sale. Prior to the sale you are in possession of the house and can transfer possession as you like. After the sale the holder of the redemption rights is entitled to possession of the house. The redemption rights give the holder (1) the right to possession and (2) the right to redeem the house after the sale by paying into court the amount of the bid at the sale. I don't know that the redemption right holder can get in any trouble for what they have done. I would assume that the document transferring the redemptions rights also grants them possession immediately. If not, you apparently gave them possession. I see no basis for attempting to void the contract.

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  • Can u get emacipated at 16 in Kasas during a custody battle?

    my boyfriend wishes to leave his mothers house and he doesnt want to b put with his father due to abuse, he wants to get emancipated but doesnt know how to during a custody battle, he is 16 and lives in kasas.

    John’s Answer

    Techinically the answer to your question is yes. Practical considerations may make his plan un-waorkable. In Kansas the district court can confer the rights of majority. KSA 38-108. This procedure requires petitioning the court by the next of kin and notice to interested parties. The remedy is discretionery with the court upon good cause shown. In your case, the parents would have notice of the proceeding and an opportunity to object. It is rare when a court would grant majority rights over the objection of the parents.... possible but rare.

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  • What is the best and cheapest way to either give land or money from sale to my mother-in-law?

    Mother-in-law gave us 10 acres several years ago. She needs the money now and we want to either sell it and give her the money or give her the land to sell. Neither me or my wife are 55 or older, yet.

    John’s Answer

    I agree with Martin to a point. The best scenario depends on who has the lowest marginal tax rate, you or your mother-in-law. If your rate is lower than hers, then you are best off to sell it and give her the money. If her rate is lower, you are best off to give the land back and let her sell it and pay the tax.

    Not mentioned above in your question is Medicaid. I am not licensed in Arkansas, only Kansas, but the laws should be similar. If mother-in-law has potential health issues that may require nursing care, the state has a system for paying for that care if she runs out of resources. It is called Medicaid (as opposed to Medicare, the heathcare system for those over 65.) She cannot access Medicaid as long as she has resources of her own. If you give her the land or the money and she then needs nursing care, she will have to spend down her own resources before she qualifies. This will include all the land or proceeds you gave her. If, instead, you sell the land and pay her monthly as she needs it, she will be "spent down" immediately if she needs nursing care and your familiy unit will not lose ALL the land proceeds to nursing care costs. This might be a better strategy that transferring the entire land tract back to her or the entire proceeds all at once.

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  • Does Durable Power of Attorney override someone named first on the deed to the house?

    I and one of my sisters are listed as Durable Power Of Attorney for our mother. This includes all her property, healthcare decisions, etc. Our brother who has been trying to be the caregiver for our mother is listed first on the deed to the house...

    John’s Answer

    The "powers" of the power of attorney end at mom's death. The order that names are listed on a deed does not matter. If it is NOT a "Transfer On Death" deed, all the names listed on the deed have current ownership interests in the house now. If it IS a "Transfer on Death" deed, then the listed names only get rights in the property at the death of the last owner of the house. The answer to your question depends on which kind of deed it is. If it is a Transfer on Death deed, then your mother, or you acting through your power of attorney can sell the house during your mother's lifetime. If it is NOT a transfer on death deed, then it will take the signatures of all the listed owners and their spouses to transfer the house. Now the choices... At death you have several ways to transfer the house.
    First, you may leave it in your mother's name alone and the house will then be dealt with as directed by her Will. The will can direct that the house be sold and the proceeds distributed. The Will will have to go through probate, but the will can direct that the house be sold and the proceeds distributed as mother wishes. Second, you can avoid probate by using the Transfer on Death deed. This has the downside of placing you all in common ownership of the house at mom's death and leaves you with the issue of how to get brother to agree to sell the house and move out. There is a legal action available to "partition" the house, but that involves the court system and is somewhat adversarial between siblings. Not a good way to foster relationships by suing each other. The Will and probate option would be much better than a TOD deed and a partition action. The third choice would be for mom to create a living trust and transfer the house to the trust. The trust would avoid probate and could direct that the house be sold and the proceeds distributed as wished. This appears to be the best option on the limited facts you have presented. I would urge you to get mom into an estate planning attorney's office to discuss her wishes. It will save dollars, family feelings and hassle later.

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  • How to force trustee of trust to provide accounting for last 6 years, total secrecy with no communication to any beneficiary

    three different lawyers read trust and said trustee does not have to account due to us not being a vested beneficiary until surviving spouse passed. the time we became vested is the issue. there is also dementia experienced by both parents durin...

    John’s Answer

    While Wisconsin has not adopted the Uniform Trust Code, its provisions may be persuasive upon a Wisconsin court if there is no specific Wisconsin law on topic. Most adoptions of the UTC provide that a trustee has the duty to inform and report to all "qualified beneficiaries." (Kansas KSA 58a-813) It also provides that this duty is not invoked if the income beneficiary is a surviving spouse and all qualified beneficiaries are issue of the surviving spouse. This would tend to negate any duty to account. That being said, however, The UTC has a "prudent administration" standard (KSA 58a-804 in Kansas) imposed upon all trustees. If indeed your trustee is violating this standard a court should have jurisdiction to review the trustee actions and take appropriate action. I agree that you need experienced Wisconsin counsel.

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  • My sister has cancer. My niece has not had contact with her biological father in over 4 years and wants nothing to do with him.

    How can I file for custody of her, she is 8, if my sister passes away? The father did not pay child support until the court ordered him to. He has been in jail for numerous things and has not filed for visitation. Will the court grant me guardi...

    John’s Answer

    I agree that the time to act is now, while your sister can provide input. Although terminating the father's parental rights is a more permanent solution, it often brings almost violent oppostion from the father. A solution more likely to work would be to have your sister simply petition the district court to appoint you as the guardian for the child. Notice would have to be given to the father, but it likely won't bring the violent oppostion that a move to terminate parental rights would bring. He will get notice and the court will most likely appoint you unless he objects. Once appointed guardian, you will have the authority to decide where the child lives. This could easily be with the mother as long as she is able. An alternative would be to have you and your sister appointed co-guardians. Then you both would have decsion making power. The father could always come in later and challenge this arrangement but I would guess that would be remote.

    All of this is according to Kansas law so you should check with a lawyer in your state.

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