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Randy Marvin Spiro

Randy Spiro’s Answers

17 total


  • My mother recently died and Dad is struggling with her estate. She had two mutual funds and a safe deposit box in her name.

    He doesn't know what to do and needs some help. I believe he needs to be the personal representative of the estate and an affidavit of heirship for the safe deposit.

    Randy’s Answer

    Some banks will allow the closest relative to access a safe deposit box even if the relative is not a signer on the box if the relative tells the bank that he or she is looking for will(s). If the estate does not qualify for the small estate procedure, and when an attorney has filed a petition with the court and gotten an order appointing your dad as representative of your mom's estate, those papers should be taken by your dad to the bank to gain access to the box.

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  • Can I revise a living trust without the use of an attorney?

    I have a living trust that was formed in Feb 2000 through a local attorney. I need to revise the trust, but the attorney (and others I've checked) are requiring a fee in the area of $500. The changes I need to make are simple; names, a few asse...

    Randy’s Answer

    Even though a person who has created a revocable trust has the right to amend it without an attorney, there are problems in attempting to do so. If the amendment you create is invalid for some technical reason, or if there are ambiguities in what you have done, the problems that could be encountered at your passing could dwarf the attorney fee for preparing the amendment. If you are amending the trust to change the trustee, you will want to have the attorney prepare a codicil to the will to change the executor. You may also want to re-do your durable power of attorney for health care if you need to change the name of your agent. If some of your assets are not in your trust, or if you have taken real estate out of the trust to refinance it, or if you have IRAs, retirement plans or life insurance where the beneficiary designation forms have not been updated to reflect your estate plan, the attorney could review these items with you too in order to make sure the new forms are filled out correctly.

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  • Real Estate sale by Irrevocable Trust (California)

    As trustee of an irrevocable grantor trust, I plan to sell a home with the approval of the two beneficaries. The property was originally gifted to the trust. For Capital Gain Tax calculation, will the basis be stepped up to current market value or...

    Randy’s Answer

    When a gift is made, the recipient (in this case the irrevocable trust) takes a basis equal to the donor's old basis. If the donor is still alive and the trustee sells the home, there is no step up in basis. If the home is sold after the donor's death, the property will only get a stepped up basis by virtue of the donor's death if the property was includable in the donor's estate for estate tax purposes. Some irrevocable grantor trusts have 'defects' in them that were put there intentionally so that the income of the property is taxed to the grantor for income tax purposes, but so that the property is not included in the grantor's estate for estate tax purposes. You and your attorney must examine the trust (assuming the grantor has died) to determine whether the grantor retained any rights in the trust that would cause it to be included in the grantor's estate for ESTATE TAX PURPOSES.

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  • Post Estate Plan Completion Procedures

    Thank you for your help guys! Here's my question: Upon completion of my estate plan (living trust, pour over will, power of attorneys, etc), what is to be done with them? Just simply store them in a safe place? or file with court? or give to tru...

    Randy’s Answer

    The attorney should keep a copy. The client should be given an original and a copy. The original could be stored in a safety deposit box, but if it is, the client needs to consider whether to give one or more persons access to the box so that there will not be problems accessing it at the client's death. On the other hand, there is a risk of the person who is given access to it entering the box and stealing items. even while the client is alive. The copy should be kept in the client's home. The client should tell his successor trustee where the documents are. The client may want to give the successor trustee a duplicate key to the house or the client may want to tell the successor trustee that a key can be found in a certain part of the garage. A copy of the durable power of attorney for health care should be given to the client's doctor, and the agent under the health power should either be given a copy or told where it can be located.

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  • He has a will,my dad is very ill (Hospice Care).After his death what do we do next with his wishes? (distributing his estate)

    above

    Randy’s Answer

    Probate is a court procedure to authenticate a Will , to make sure that debts and taxes are paid and to supervise distribution of assets to the right persons. Each state has its own laws governing probate. Your dad's Will probably designates an Executor to handle the probate and it is the Executor who can hire an attorney to help the Executor in filing papers with the state court to have the Executor appointed. There will be a hearing, notice to heirs and beneficiaries, in some cases publication in a legal newspaper. The Executor may want to interview more than one attorney before deciding who to hire. The Executor needs to have the attorney explain how the Executor and the Attorney are compensated for their services under the relevant state's law.

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  • How long can an estate (simple trust) remain open?

    My mother passed away almost 2 years ago. A 1041 (Type Simple Trust) was filed. Form 706 filing was not required. All assets except a modest bank acct and her home have been distributed. Because of the real estate market, we have not been able ...

    Randy’s Answer

    The trustee does not have to file form 8855. The trustee should be more concerned with whether the beneficiaries will accuse the trustee of negligence than he should be with the question of whether the IRS will have a problem with how long the trust has been kept open. The trustee should document his efforts to sell the property. The trustee should consult with his attorney about what procedures are available under state law to minimize the trustee's liability for declines in values of the assets. The trustee should consult with his attorney as to whether or not it is worthwhile to have the beneficiaries agree in writing that the trust be kept going and that they do not desire the real estate to be sold if it cannot yield a certain selling price.

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  • I am an heir to my fathers estate and would like to know my legal rights to obtaining all of his financial records/invalid will

    my brother is the administrator and will not help obtain bank accts.that were pod to my niece,i just want nto see what activity has been taking place.there seems to be suspisious info being witheld.what are my legal rights?

    Randy’s Answer

    If there is an account in your father's name that is pod to your niece, your niece should obtain a certified copy of your father's death certificate and take it to the bank as soon as possible. Even if she cannot quickly obtain a certified copy of your father's death certificate, your niece should inform the bank immediately that your father has died and that she is claiming the account as beneficiary. She should ask the bank whether all the funds that were in the account at your father's death are still there. All family members who believe they are entitled to anything from your father should obtain an attorney licensed in the state of your father's residence (or in other states where your father owned property if he owned property outside the state of his residence) so that they can take whatever action they deem necessary to protect each of you.

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  • What happens if an estate was never put in probat? And the morgage holder forecloses on the house

    It has been over a year and now the morage holder is going to foreclose? Another Company has also put a lean on the house. The kids are going to let the morgage company have the house.

    Randy’s Answer

    The children should consult an appraiser as to whether there is any equity in the property and if there is, they shouyld consult an attorney to try to help them save the property from foreclosure. They may need to start a probate quickly so that an executor can borrow money on the property to bring it current, assuming there is a lender that would make the required loan in this situation. The mortgage holder can foreclose whether or not the property is in probate.

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  • What is Probate on an estate

    What is the difference in Probate and having a will and executor?

    Randy’s Answer

    Each state has its own laws on Wills and Probate. Assets that are in the name of a person who has died and which are not in joint tenancy, which do not have a beneficiary and which are not held in a trust go through probate at the owner's death. Probate is a state court procedure to clear title to an asset and to authenticate a deceased person's Will. The person designated to manage the estate in the Will is called the Executor, and he petition's the court for admission of the Will to probate and requests that the court appoint him as Executor.

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  • Is it OK to use a POA to write a check for an incapacitated executrix on an estate account?

    My dad died over two years ago and my step-mom, who was diagnosed 5 years ago with Alzheimer's was qualified as executrix against my better judgment. My fear was that my stepsister (stepmom's daughter) would be acting as defacto executrix. My...

    Randy’s Answer

    If state law says that a power of attorney can only be executed by a natural person, then that state's law may not allow an executor to delegate his or her powers in that manner. Also state law may say there is a specific procedure where the executor has become incapacitated, for example a petition may be required to be filed with the court to remove the incapacitated executor and to replace him or her with a different executor.

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