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Thomas Stindt’s Answers

69 total

  • If the final accounting or decree of Distribution is not turn over to the court or the beneficiaries, since January of 2008.

    Is that a indication of wrong doing by the executrix, who was not a beneficiary in the will.

    Thomas’s Answer

    You don't provide enough information to give you much of a helpful answer. When was the estate opened and letters issued, and has a probate inventory been filed? Is this a large estate which requires a federal estate tax return to be filed? Problems with creditors which might delay distribution? You could contact the personal representative and ask for an update and status report from her, and ask her for a timeline as to when an accounting and final distribution might be expected. First, review the Will, check to see if and how broad any No Contest clause might be in that Will. Be careful not to take steps which might be viewed as a contest of estate administration, and just what might be considered an act of interference varies in jurisdictions.

    Many jurisdictions will require the personal representative to file a Status Report if the estate is not petitioned for closing within one year of opening.

    Your best course of action is to have a local New Jersey probate lawyer read the Will, check the probate case file, and contact the estate's attorney. If you are anticipating a significant gift, this modest expense would be a wise investment for you to make. An inquiry from your attorney will likely provoke action; a call from you may or may not be taken seriously by a layperson Executrix.

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  • If you are having problems with a personal rep. of an estate, can you request to deal directly w/attorney instead?

    The personal representative for an estate insists they need information for the attorney working on the estate - I would like to deal with the attorney directly instead of the rep.

    Thomas’s Answer

    The Personal Representative may be attempting to keep legal fees for extraordinary services down and for that reason would prefer you deal with him or her. If you are having communications problems, try sending a cc of your letters to the attorney for the Personal Representative. You can also ask the Personal Representative if he will instruct the estate attorney to take your calls or letters and communicate directly with you, at least on some matters. But remember, that attorney is not advising you from your viewpoint, the estate attorney represents the Personal Representative. So to the extent you are seeking guidance on tactics, procedures, elections from your own perspective, you should have your own attorney.

    We typically prefer at our office to have beneficiary contacts go through the Executor or Administrator, rather than directly to us. This is because if we talked to all the family members in all the trust and estate administration files open at any given time, we would never get our work done, we would just be talking on the phone. The Court won't typically allow the estate attorney to be paid an extraordinary fee for talking to the beneficiary and giving information to such person, as the attorney is engaged to represent the estate entity and its fiduciary and to provide services of benefit to the entire estate and the P.R., not to some one individual beneficiary. So you may understand why the attorney isn't able to talk for free to all of the various beneficiaries who might like to call and ask questions.

    The best way to monitor an estate in which you have a beneficial interest is simply pay a local probate attorney to file a Request for Special Notice and keep you advised. Then your own attorney will be able to keep you informed.

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  • Recently, at the request of a friend, I became sole trustee of his trust. Am I at risk?

    This friend asked me to be trustee so that it would appear that he does not own certain property. I think that's the reason.

    Thomas’s Answer

    As a general rule, you don't incur personal liability as a trustee simply for occupying the office of trustee, although the trust estate of your friend's revocable trust would be responsible for his debts and liabilities. That doesn't mean that you would be insulated from involvement, however, if a lawsuit were filed against your friend and his property were sought to be made responsive as a recovery source. You would be joined in that action at some point, or subsequently in a judgement execution proceeding, and while the trust would be available to defend you as trustee, this is still a concern and stress factor for you to consider. Additionally, if there is some possible subterfuge taking place, a plaintiff in pursuit of your friend could try to join you personally as being somehow involved in a civil conspiracy to injure your friend's creditors.

    Being a trustee is not a role to take on lightly, and doing so gratuitously for a friend is magnanimous; you should know what you are getting into. If your friend should die--and eventually that will happen--with you as trustee, there is work to be done involving post-mortem trust administration, or at the least, you would have to resign, and if you delay, then did you marshal assets and protect the trust in the meanwhile? Since you are already serving, you couldn't say that you never accepted the trust and commenced to serve upon your friend's demise.

    I suggest you call one of the local Claremont-Pomona area probate lawyers and review your situation and the facts as known to you with that person. You may conclude that you would prefer to "pass" on this opportunity to serve gratis as your friend's inter vivos trustee.

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  • Are the children responcible regarding a reverse morgage after mother's death.

    My mom on her own took out a reverse morgage just a few years ago.All of a sudden it was i n place. Now she has past that last Jan 16. We found that she didn't have a will nor asign an executor, admin, or power of attorny. The ranch style hous...

    Thomas’s Answer

    You don't inherit your mother's debt, or the "obligation" to this lender. That obligation is secured by the affected property. If you open an estate, you will want to find some liquidity--and it may be hard to borrow on this property as it presently exists--to make the property rehabilitation necessary to sell it and pay-off the reverse mortgage. After you pay for that borrowing, the remediation of the home and septic system, plus pay the probate fees and sales costs, you could still have some funds left to distribute, so I wouldn't automatically walk from this situation.

    You need to have a local real estate agent talk with your probate lawyer, and they could run some numbers for you. It will be necessary to involve a banker in those discussions, to see if there is enough equity in the property to allow for a bridge loan or HELOC to create funds for the repairs.

    The catch is that if there are other assets in the probate estate, you won't necessarily succeed to those and leave the house behind. The probate estate would need to inventory all of the property, in order to eventually distribute to you. Maybe you could let the house default, and go into foreclosure, and just distribute via probate decree of distribution what is left. There generally is no deficiency judgment exposure following private foreclosure of a reverse mortgage on a single family residence, but you should confirm this in your jurisdiction. So the probate lawyer, a real estate agent, and a mortgage broker need to get their heads together with you, run some numbers, and advise you.

    Good luck.

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  • My father is deseased. I am his Benificiary on his Medical Living Will. He was not married but, did live with his girlfriend.

    My father only had personal item's which are senimental to my sibilings and I. He did own vehiciles which was in his name only. His girlfriend is not a friendly kinda person and wants to be selfish. My father and I were very close. What right...

    Thomas’s Answer

    Unfortunately in your facts, the economic realities of the situation are that possession becomes the primary determinative factor, as regards the personal belongings. What you might do is this: you and your siblings band together, jointly hire a probate lawyer in the community where this girlfriend lives, and make demand upon her for your father's personal items. She will claim he gave them to her, and you would need to rebut that claim if you pursue this further. Usually in this kind of a dispute, if you can sign a small estate affidavit ot whatever abbreviated procedure West Virginia utilizes, and make demand upon the girlfriend, discussions ensue, and a settlement is worked out. You will get a share of the items, but be prepared that the cost of doing so may exceed the material value of the items--it just depends on their sentimental value and how badly you want them.

    The car should go by record title and if it was in your Dad's name only, you and your siblings should be able to lay claim to that item, there is usually a DMV form for transfer of motor vehicle to successors-in-interest. You will need a certified copy of death certificate, the title, a small estate succession affidavit. You are going to have to jointly hire a local probate lawyer to help you with this situation. Sorry to tell you that, people don't like to have to spend money, but when in a case like this the facts are jumbled about gifts, there is always work to do when someone dies.

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  • Can an executor be paid to handle an estate if not stated in will?

    My aunt recently died and her estate is valued at 1.5 million. She named my cousin as executor in her will and did not say anyone would be paid to do this. My cousin is to sick to handle my aunt's will and asked another cousin to do it. My cous...

    Thomas’s Answer

    You are in Long Beach, so I am assuming your aunt's probate will be in Los Angeles County, thus California probate law applies. Whoever is appointed by the Court as Executor, or as Administrator-with-Will annexed, will be entitled to statutory compensation. This is fixed by law for ordinary services, and is taken only with a court order from the probate court, and after the work is done. The estate representative will have to petition for approval of such fees. If additional work is done, over and beyond ordinary services, then application may be made for extraordinary fees.

    Your cousin being named in the Will to be Executor, isn't automatically the person to select who shall do that work. He may be able to nominate some other cousin, but any of your aunt's heirs-at-law or her beneficiaries under her Will, may also seek appointment. This is done by petition to the court. The court will decide who is to serve as personal representative, based upon such petitions.

    There are many fine probate lawyers in Long Beach; you will have no trouble finding someone to monitor the probate proceedings for you. If you think someone is seeking too much compensation, you could object to it. Meet with a probate lawyer near you, and the monitoring and advice you will receive should be worth the cost, especially if your expectancy share in the $1.5mm estate is significant.

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  • If a will does not state that the executor gets paid can the executor pay herself?

    My aunt recently died leaving an estate of 1.5 million. My Dad was name executor. Because my Dad is so sick he can not handle this responsiblity and asked my sister to do it. My aunt did not note in her will that someone gets paid for this. My...

    Thomas’s Answer

    If your father was named as Executor in the Will, and he declines to serve, for whatever the reason, then whether or not he would have served for free in such capacity, has nothing to do with the right to compensation of whoever does so serve. Each state has a statutory system of priorities for seeking appointment as Personal Representative of a decedent's estate. Typically this is based on intestate succession and relationships to the decedent, with the closest kindred having the highest priority. Your sister would be a niece of the decedent, so she could apply for Letters of Administration, or someone with a higher priority might nominate her. Others might also apply, and the Court will determine whose Petition should be granted.

    Personal Representatives are entitled to compensation for work done as Administrators or Executors. However, in many jurisdictions, there is judicial oversight on the compensation and the work needs to be done first, generally a court order will be required to pay the Personal Representative for such services.

    Don't be too harsh on your sister's desire to be paid, because there is quite a bit of work to do in administering an estate, and a large amount of responsibility is assumed.

    You could become active in monitoring the estate administration, request special notice, request formal accountings, if not otherwise rendered, and assuming you are a beneficiary, you would have standing to object to any excessive compensation paid the Personal Representative. You would need to be vigilant in the case, and you should have a local probate attorney in the community where the estate is being administered, to represent you in the proceedings.

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  • Under CA state law is a power of attorney still valid at the time of the executor's death

    If my great uncle is dead and has been for ten years but i just found papers that he still has stock. The company said i need power of atturney to retreave them, how do i get power of atturney?

    Thomas’s Answer

    Sorry, you won't be able to sign a stock transfer endorsement that easily. In California, the power of attorney for your family member expired with his demise. The stock transfer agent probably just automatically asked for that power in response to your apparent inquiry on his stock holdings.

    Depending upon the size of Uncle's unprobated estate, you may be able to use a Small Estate Affidavit to assure the stock tranfer agent that you are the proper transferee. However, proving that you are the heir-at-law of a great uncle means that you must swear in that affidavit that there are no closer heirs-at-law than you, who would take the property.

    This is not a big task, either you are the successor-in-interest or you aren't, and if you are, a Small Estate Affidavit, certified copy of Uncle's death certificate, and an authenticated copy of his Will, if he had one, should be sufficient. If his Will leaves his estate to others, though, only those persons would be the distributees under the Small Estate Affidavit.

    About an hour with a probate lawyer in your community should solve this for you, plus what you might be charged for the Affidavit. It is not a big expense; I suggest that you call around and get some quotes and then consult with someone of your choice.

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  • My father died 7 years ago in TX, I live in CA, my siblings divided assets among themselves,will not probated,any recourse 4 me?

    Is there a statute of limitations on recourse when the executor did not probate the will, or distribute it as it was suppose to be in Texas?

    Thomas’s Answer

    Your father's Will addresses probate property that would be distributable through his estate, which may or may not include the assets divided by your siblings among themselves. You need to review whether those non-probate assets, such as joint tenancy bank accounts, survivorship property, other pay-on-death type assets, or insurance policy proceeds. You should review what you know about titles to those various assets with the Will before you, as to how the Will distributes probate property. Hopefully the original Will was lodged for safekeeping or is otherwise available. Was some form of Texas abbreviated probate procedure used, such as our California Small Estate Affidavit procedure? If so, the transferees may have assumed statutory liability to injured successors-in-interest, to the extent of the transferred assets.

    If there were probate-includible assets, which were somehow collected and distributed without going through probate, and you were a beneficiary under the Will, then you may have a cause of action against the distributees to the extent of your interests, to recover the same. But this would be an action in their jurisdiction, likely you would need to probate the Will, in Texas, take discovery, prove the wrongful use of abbreviated procedures which excluded you, and you would have to overcome the doctrine of laches, meaning that you would need to explain why you sat on this for seven years. It is a difficult case, expensive to pursue, unless done on a contingency basis, and whether you could get someone to take it depends upon the amount involved and what type of proof you have, plus the wording of the Will and the procedure used by your siblings. Your case is problematic at this point, but I think it is worth your time and expense to review all of the above and other related information with a local probate lawyer, before you discard the thought. There are attorneys in the Palmdale-Lancaster area who practice probate law and who could assist you with such a review, and it is worth the cost of a consultation for you to review this in detail. No on-line review is going to be helpful to you, the timeline, the document(s), and the facts need to be reviewed, along with titles to transferred assets. Make an appointment with a probate lawyer near you and take all your documents with you to that meeting.

    Good luck to you.

    I think

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  • My Mother put my neice in her will,My neice needs a kidney. If she dies will her husband get my neice's share?

    Mothers will, will be shared by her children, and neice that is considered a daughter. Neice needs a kidney hopefully she will live, but if not does her share go to her husband?

    Thomas’s Answer

    The answer depends upon two things: (a) whether there is a survivorship condition on the gift to the niece; and (b) the anti-lapse statute in your State. Assume hypothetically that there is no survivorship condition, i.e., that the bequest is to "my residuary estate to my children John, Sally, and Linda and my niece, Jane, in equal shares." If Jane predeceases the testator (your Mom), typically her gift would fail, and fall into the residue of the estate, to be re-divided in this hypo among those then living when Mom died. BUT the anti-lapse statute can intervene, and SAVE that gift, typically for the issue of the pre-deceasing beneficiary, but not necessarily for an in-law. The public policy beneath such anti-lapse statutes is that presumably the testator were she to have known how life events would play out, would prefer her designated beneficiary's children to take the gift, but not necessarily an in-law, so the anti-lapse statute operates to save the gift for certain heirs-at-law of the predeceased beneficiary but not for all. The anti-lapse statute in your State may have specific impact upon this situation, and of course, the language of the Will shall control, and the Will's language on survivorship trumps the default provisions of an anti-lapse statute.

    I don't know if your mother used an attorney-draftsman or used a form will, such as from a self-help website. This actually illustrates the risks people take on when they use forms, if that were the case here, because while the form may look fine, there are anti-lapse statutes, tax allocation clauses, other nuances that a layman cannot be expected to know, which affect how the instrument should be worded.

    Your mother should be suggested to review her Will with this subject in mind.

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