Skip to main content
Kent S Berk
Avvo
Pro

Kent Berk’s Answers

6 total

  • My dad's accusing me of elder abuse for taking my mom to the bank getting out her money to go to the casino or do whatever she w

    I take her to bank to get any $ she wants to go to lunch casino n she's helped me w my scool loan as she didy nephew by putting a 2500.00 fence around his pool . She's given me 2400. Towards my scool payments off m on past 2yrs my dad says he's pu...

    Kent’s Answer

    There are several elements to an exploitation claim, including that the adult be vulnerable and that the person who is accused of wrongdoing be in a position of trust and confidence. My website includes more information: http://berklawgroup.com/elder-law/.

    See question 
  • How do I collect an estate when the probate closed 7 years ago?

    I was the only heir to my father's estate when he passed 7 years ago. I had never met him and his family tricked me into signing my aunt as the executer. I recently discovered he still has a condo that was never given to me or mentioned. I was sup...

    Kent’s Answer

    You should be able to go to a title company in the County where the property is located to determine whether the condo is still in your father's name. If so, he probate should be able to be reopened to deal with the property. And, you should talk to the first lawyer.

    See question 
  • What to do if a Transfer on Death agreement is contested

    My father, a former resident of Washington state died last year in Arizona. Prior to his death he changed the beneficiary designations on his investment accounts. The TOD was disputed by my estranged brother, and he filed a motion in King County S...

    Kent’s Answer

    It really depends. I would need more information regarding your particular situation. In general, a pay on death or transfer on death designation is a non-probate transfer that will operate outside of probate and irrespective of the deceased person's will. However, non-probate transfers may be attacked on various grounds. For example, there could be a dispute over whether the document was forged or whether the person was unduly influenced or was of sound mind at the time of signing.

    Typically, if there is a contest that cannot be resolved outside of court, litigation would be filed in the County where the person died and/or account was held and the lawsuit is mailed or served on the other interested parties.

    See question 
  • Dad died his wife claims he had no will. many investments and home. how can my sister and I find out if there was a will.

    Does the state of Az automatically step in to distribute his property. Can she cash in all investments and leave it all to her family

    Kent’s Answer

    There are many options to resolve your situation. You should consult with an attorney right away.

    For example, Arizona Revised Statutes Section 14-2516 provides as follows:
    "A. After the death of a testator and on request of an interested person, a person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate or, if none is known, to an appropriate court.

    B. A person who wilfully fails to deliver a will as required by this section is liable to any person aggrieved for any damages caused by this failure.

    C. A person who wilfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to penalty for contempt of court."

    So, you could file a petition (essentially a lawsuit in probate court) to have the court compel your dad's wife to turn over any Will and other documents.

    Alternatively, as the legal heirs of your father, you could file a petition to open probate and be appointed as personal representative. Once you are appointed, you could, among other things, issue subpoenas and request documents from third-parties, such as banks, accountants and others that may have a copy of your dad's will and other helpful information.

    If your dad died without a Will and his wife is not your mother, you are likely entitled to at least a portion of any of your dad's assets on which a beneficiary is not already designated (e.g. a bank account that has a payable on death designation).

    See question 
  • File a petition to open an estate in probate?

    What exactly does that mean, what's involved and how do you go about doing it?

    Kent’s Answer

    In order to "open probate," you have to file an application or petition with the Court asking the Court to accept the deceased person's will as his/her last will or declare that the person died without a will (intestate) and to appoint a person (the personal representative) to administer the assets, affairs and debts of the deceased. Once the Court does so, the personal representative must then take other steps, like filing an inventory of assets, publishing notice of the appointment and giving notice to creditors. The personal representative is also responsible for, among other things, controling assets and paying debts, and then can distribute the assets to the legal heirs (people identified in the will or designated by law, if the person died without a will) of the deceased.

    It is generally a good idea to hire an attorney to handle the probate process.

    See question 
  • Im in the process of a short sale on my condo

    my situation,i been in my home 5 years , 2 years in nov will be my discharge bankrupsy when i got my place 5 years ago 1.000 a month for mortgage and about 2 years ago i did loan modification so now i owe 141.000 my home is worth 48.000 next year ...

    Kent’s Answer

    There are many different considerations to doing a short sale. The Arizona Association of Realtors has a good guide - the seller's short sale advisory (link below). I suggest you read that and further investigate each of the issues. It is also advisable to have an attorney review any short sale/lender approval agreement before signing. For further information about Arizona's anti-deficiency statutes, an important consideration in doing a short sale, check out our video powerpoint presentation.

    See question