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Thomas Stindt’s Answers

69 total

  • My husband changed beneficiaries on his life insurance and left me without anything.

    This occured a little over a month before he passed away from drinking himself to death. He did this out of spite as I took care of him and his ilnesses over the last 15 years and he stole all of our money and has left me with nothing but our deb...

    Thomas’s Answer

    There are typically spousal protection provisions in the probate law of most states. You may have a right to set aside a non-consensual gift of marital property, based upon the change of beneficiary to someone other than the surviving spouse, provided the surviving spouse has a state property law interest in the funds used to pay the premiums.

    This is what we call a cross-over issue involving probate and marital property law elements. You need to quickly consult with Florida counsel, so any expeditious remedies such as injunctive relief, could be asserted before the funds are scattered.

    Contact local counsel promptly and take with you any account records you have on the source of funds for premium payments, or any writings you and your husband had concerning the character intended for your earnings and property acquired during your marriage.

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  • Do I have rights to my bio fathers estate upon his death since he never married and has no other children?

    I met my bio father recently and he is in bad health. He says he is giving his estate to one of his friends. I was wondering if because he never married and has no other children if I was able to recieve some of his estate being his only child? M...

    Thomas’s Answer

    You are what might be termed an out-of-wedlock child who was "adopted out" of your biological father's family line. Each state has its own public policy determinations, reflected in its probate statutes, as to how the law should treat out-of-wedlock issue, and how an adoption affects status of issue to inherit through biological birth parents. Sometimes the difference will be whether the adoption was by a step-parent while the adoptee was a minor, and if the adopted child lived in the home of the natural parent from whom inheritance is claimed, during minority. Your case is more complicated than most of these because it seems that your facts combine out-of-wedlock birth with a subsequent adoption out of your father's family line of issue. But this doesn't mean that you don't have rights, if your biological father leaves you no gift, by omitting to provide for you. He can of course intentionally exclude you, by naming you in his will or trust and stating that he is aware of your existence, but chooses to leave you nothing. None of us is required to leave our sons or daughters anything, so long as we don't do so by forgetting them or not knowing that we have them.

    Your facts are complex and there are more to be determined, such as when the adoption took place, and was it a step-parent adoption, i.e., by your mother's then-spouse, and was it while you were a minor. Also, did your biological father ever acknowledge your existence, hold you out as his child, and do you have proof of this? Did you ever live in his home while a minor?

    You need to meet with a probate lawyer in your father's state. Hopefully you will be able to reconstruct some form of relationship with your father while he is still able to communicate with you, if that is the case, so that he might revisit his estate planning and include you, if he wishes to do so.

    Only a probate lawyer in your Dad's jurisidiction should help you with this, as the rules vary significantly from state-to-state. This information is to give you an overview of the issues involved. Good luck with it.

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  • I am the agent of my mother's springing POA. She is better and wants to revoke it. Her doc's aren't sure she is fit.

    They have had a couple of psychologists evaluate her without a clear decision. She is in a skilled nursing facility but feels she can handle her financial affairs which are marginal at this point since she is a medical medicare patient. I am not c...

    Thomas’s Answer

    Your mother is presumed competent to manage her affairs, absent a decree establishing her lack of capacity or an order conserving her. Since there are no such orders existing in your summary of facts, she should be able to revoke the springing power she had signed earlier. However, because she lives in a skilled nursing facility, actions involving health care powers or business powers of attorney should be validated by the ombudsman who visits the residents of that facility. She should have the social worker at the care center schedule her in with the ombudsman at his next visit, who should be able to interview her and attest by his certificate, as to her ability to comprehend the meaning of her act of revocation.

    I don't understand why she needs to revoke the springing power, since it is only triggered by the physician's certification of need as might be defined in the instrument itself. If that hasn't happened, than you aren't serving as attorney-in-fact. If it has happened, then you are serving. Does your mother distrust your service status? The fact that you are serving shouldn't necessarily be a concern to her, but if it is, she could revoke the instrument and either with the ombudsman's certification, or that plus her attending physician's certification, assuming that is available, she would be able to revoke it.

    There are many elder care lawyers in the Santa Monica area who could meet with your mother and assist in this task; it is not a major project.

    Best wishes to you and your mother.

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  • Can a person give power of attorney to more than one person in the state of IL

    My grandmother, who is a LONG time heavy alcoholic and has a history of delusions wound up getting herself locked up in the psych ward of the hospital last week. I agree that she's not all there and she does need some serious intervention, however...

    Thomas’s Answer

    Your question has several parts, and it should be addressed by an Illinois probate attorney, so this information is for general background purposes only.

    First, the creation of a power of attorney instrument, whether durable, general, or special, relates to management of business affairs. It won't necessarily empower the named agent to "get Grandma out of the hospital" although the agent could sign financial/legal documents such as discharge papers or rental agreements for a new residence. Your grandmother probably needs a durable power of attorney for health care purposes, with an advance health care directive as part of it. That would be more akin to the right type of instrument to give medical care instructions.

    Secondly, it seems to me that a conservatorship is more called for than a power of attorney instrument, in the facts you have described. You would have standing to seek such appointment, but so would her brother, and the court would have to decide between competing petitions. A sibling is higher in the statutes of some states providing priorities to petitioners for letters of conservatorships, than would a grandchild be.

    You aren't going to have standing or capacity to block Grandma from signing a power of attorney instrument to your great-uncle, because she is presumed capable of signing that instrument, absent a decree determining her incapacity or adjudicating her a ward or conservatee. You could bring an action to invalidate it, but you would have a heavy proof burden to sustain.

    Your best recourse is to consult with local counsel, who will probably recommend initiating a conservatorship or guardianship for her.

    Good luck with it.

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  • What does the Primary Attorney-in-fact on a Power of Attorney have to tell the backup Attorney-in-fact in Pennsylvania?

    The communication between the Primary Attorney-in-fact on the Power of Attorney for my mother and I the backup Attorney-in-fact have stop communicating and we were in the process of placing our mother in assisted living. I have not been given any ...

    Thomas’s Answer

    I am not a Pennsylvania attorney, so I am trying to give you some generalized information. You really should have a consultation with a PA attorney on this subject.

    The language of the power of attorney instrument will specify whether you and the other named agent are co-agents or whether the other person is the actual attorney-in-fact named, and you are named only as the second to serve, in default of the first person named's availability to serve. This can create confusion, as you have learned, but even more so if there is a question as to unavailability to serve of the senior nominee. Many third parties are reluctant to rely upon acts of the junior attorney-in-fact, absent proof of non-service or unavailability to serve of the senior agent named.

    The duties to communicate are owed by the agent to the principal, and not necessarily to another agent named as an alternative attorney-in-fact. However, there are generally duties to account owed the principal (your mother), so whoever is acting should be producing records to her. You may need to seek court instructions as to rendering an accounting. This may even end up in a conservatorship for your mother.

    Talk with an elder care lawyer in PA.

    Sorry to hear you are having these issues regarding your mother.

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    Thomas’s Answer

    As a general rule, the decedent's estate will be responsible for creditors' claims filed with the personal representative, who would pay the just claims from the estate property. If there is no estate, transferees and successors-in-interest will typically take the decedent's property subject to such claims, which will follow the property. However, insurance proceeds are paid by the policy free and clear of such claims, in many jurisdictions. Your case will require South Carolina law to be applied, so your father-in-law will need to consult a local probate lawyer in his community.

    Also, some claims may be limited to amounts Medicare allows as permissible amounts for services rendered, if for example provided by a medical care provider who acceped assignment of Medicare benefits. The claims need to be reviewed to see which might be refuted on this basis, and which are just claims. The nature of the assets to which your father-in-law succeeds needs to be reviewed to determine which are subject to claims of the medical services creditors. These are all things your father-in-law's local probate attorney will be able to advise him on.

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  • Can my dad change the beneficiary for his Revocable Living Trust from a person to a different Living Trust ?

    My dad wants to change the primary beneficiary for his Revocable Living Trust from a person to my Living Trust. I know he can change the beneficiary BUT can he change the beneficiary to a Living Trust OR does the beneficiary have to be a person o...

    Thomas’s Answer

    He will need to do this in conformity with Florida trust law, and to do it right, by properly naming it in some fashion such as: "the trustee of the xyz revocable trust, dated ABC, or any successor trustee thereof, provided said trust has not been revoked and is in existence at time of my death, and if it has been revoked or is no longer then existing, to (default beneficiary)" The risk to your father is that you could amend that trust to make its primary beneficiary your father's worst enemy, as an extreme example. Also, he doesn't know whether or not that trust is properly written or might be defective. If he leaves the gift to you, then you could put it into your own trust by assignment later. If he intends to bypass any probate inclusion in your estate, he needs to also consider anti-lapse rules to make sure that your prior death won't cause the gift to fail. This is a matter of state law.

    In summary, I believe what he wants to do can be done but he definitely needs to word it properly and have a Florida estate planner write the amendment for him. Otherwise there is risk and uncertainty to whether it will accomplish his objective.

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  • How can I find if my cousin, the executor to my uncles will, is keeping his $$$ for herself.

    My uncle passe about 2yrs ago. My cousin is the executor. They used her lawyer (a childhood friend) to draw up the will. How can I legally find out what is going on with the will. Many of us believe that she is keeping his life savings for herself...

    Thomas’s Answer

    First, review the Will, its bequests, and see if there is a No Contest clause, and if so, how broadly is it worded? You should discuss the impact of the No Contest clause with a probate lawyer in the jurisdiction where the estate is under administration.

    Next, assuming there is no risk to you in making inquiries and taking various steps, which might trigger the No Contest clause, you could file a Request for Special Notice and serve it on the Executor. You could also review the probate case file at the courthouse. Read the inventories, to see what property is included in the estate. Possibly the savings account you refer to as Uncle's life savings was in some pay-on-death multiple party account, which would not go through probate, instead it would go to the survivor. If you think that titles were changed inappropriately, such as the deed, you could consider an action to set aside such changes and to bring that property back into the estate, if time limits haven't passed. These are all things to discuss with a local probate lawyer, all you can get from Internet sites is general area discussion and some information to try to point you in the right direction, but you shouldn't base decisions on such information. You need a detail-specific analysis applicable to your case.

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  • My father passed away and I need to know what rights I have as opposed to his wife.

    I am 99% sure my dad had a will. I do not know the attny he would have used. His wife has not had any contact with us since 3 days after his passing. I was not involved in the cremation or his ashes. If he had a will, she has not filed it as of ye...

    Thomas’s Answer

    In most American jurisdictions, the probate law generally requires the custodian of an original Will to file it with a county clerk or court clerk for safekeeping; to probate it; or ti send it to the executor or alternate executor, named in the Will, within certain time limits. There are sanctions which vary among states if one of those things isn't done. However, it isn't advisable to wait for someone else to act. You could write to the surviving spouse, keeping a copy of your letter, politely asking for a copy of the Will, and if she is the named personal representative, if she intends to offer the Will for probate. Thereafter, assuming no response or no Will being produced, you could initiate a petition for letters of administration, as if your father had died without a Will. That will cause her to show her cards and object to your Petition and file one of her own, if she has his Will. You should retain a local probate attorney to assist you, and to advise you of the law of your state applicable to these facts. Even if there were no Will, the new spouse has intestate rights as surviving spouse, so it isn't like she wouldn't succeed to anything merely because she is the third wife and a recent spouse.

    This is a fact-specific question, and you definitely need a Pennysylvania probate lawyer to review your facts and advise you personally, not just by way of an Internet answer blog site. Also, don't start making formal demands without first making sure there is not a broad No Contest clause in a Will which might trigger a forfeiture by virtue of such actions. You definitely need an informed local professional's help in dealing with these facts.

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  • Are court costs reimburseable by an estate in addition to funeral expenses?

    The Florida clerk website shows a probate option:"Disposition of Personal Property Without Administration: May be filed to request release of the deceased's solely owned assets to reimburse the person who paid the final expenses; funeral bills......

    Thomas’s Answer

    There is probably an abbreviated, small estate procedure applicable to your facts, which would be separate from the form you refer to on the court's website. You may be able to close out the small estate summarily. Spending 45 minutes with a local probate lawyer would be worth the modest cost to you and you would then know all of the probate shortcuts available to your facts, not just those which happen to be mentioned on the local court website.

    As to filing fees, if you have to complete a probate proceeding, you will eventually be reimbursed those in your petition for final distribution. But if there are no other intestate heirs, you may be the sole distributee anyway. So checking out the summary procedures you could use would be your first step.

    Good luck with this, it is not a complicated project.

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