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Dwight Edward Tompkins

Dwight Tompkins’s Answers

47 total

  • Trust

    Is a testamentary trust part of the estate? The reason i ask is the testamentary trust says the trustee may "appoint attorneys to act on there behalf in connection with my estate and pay reasonable compensation for there services." The settler di...

    Dwight’s Answer

    Generally, a testamentary trust is created at the conclusion of the probate estate. The probate estate is concluded according to the terms of the Will. The trust then operates separate from the probate estate as it is a separate legal entity.

    If the trust provides a power for the trustee to hire attorneys and pay their compensation, then the trustee may do so based on the powers granted the trustee in the trust. There is no need to reopen the prior probate estate.

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  • What is the process to amend a death record from Hampton, Virginia?

    What affidavits/petitions are required to amend a death certificate from Hampton, Virginia; where are the forms found; and the costs?

    Dwight’s Answer

    Google the Virginia Department of Health, Office of Vital Records. You can either email or write a letter, Attention Special Services Dept., Office of Vital Records, and make your request. They will contact you.

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  • Educational Trust fund interest is being with held by the executor

    My brother and I are beneficiaries of seperate educational trusts, set up by our grandmother. Our mother is the executor of this trust and has always done the paperwork every year to obtain the trust interest and provide us with the apropriate tax...

    Dwight’s Answer

    Trustees in California must provide an annual accounting to the beneficiaries of the trust. California Probate Code Section 16062. There are exceptions to this general rule, for example, if the trust instrument itself waives the duty to account. However, it sounds like there is a duty to account because your mother has provided a financial report in the past at tax time.

    The law does not require the annual accounting to be presented on any certain date, only that it be provided "annually".

    As to withholding funds, these kinds of trusts are often discretionary, that is, they give the trustee a great deal of power of whether to make distributions or not, based on their discretion.

    If you do not have a copy of the trust document itself, you should request a copy. The trustee must provide it to you under Probate Code Sections 16060-16061.5.

    The best advice is to try to work things out with your mother/the trustee. The Probate Code provides remedies for demanding an accounting, etc., but that requires filing a petition with the Probate Court and taking your mother to court.

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  • Power of Attorney (agent)

    If a spouse is on a financial account as an "agent" with all signatory privledges and benefits....does this "agency" cease at the time of the principle's death ? Does the spouse need to be put on the account as an "owner" to continue the privle...

    Dwight’s Answer

    Agency under power of attorney terminates when the principal passes away. The bank account or other assets become part of the decedent's estate, and generally, the estate's personal representative, the executor nominated in the will (if any) or the administrator or other personal representative appointed by the court (if there is no will) takes control of the bank accounts and other assets.

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  • If there is money left in probate and I am a surivior then why would I not be receiving any assets if I am in the will?

    In the probate there shows a total of $500,000 in the will of my father it says I am intitled to $25,000. Why would I not be recieving anything?

    Dwight’s Answer

    Has there been a final distribution ordered by the court? If the probate case is still open, it is not surprising that you have not received your distribution.

    Who told you that you are not receiving anything? or are you assuming that because you haven't received anything?

    Who is the executor? Are they represented by counsel? Call them and ask what the status of the case is.

    Probate cases are public record... You could go to the courthouse and inspect the file to determine the status of the case.

    Better yet, obtain qualified counsel to advise you and assist you in finding out what is happening in the case.

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  • Do you have to use the death date of the grantor of a revocable trust as the step up basis for capital gains?

    My mother had a rental vacation home in a revocable trust. The trust stipulates that my father becomes the trustee of the trust when she dies and can do whatever he wants with the assets in the trust. The trust says my sister and I are to become t...

    Dwight’s Answer

    Your father received your mothers step up on her death 12 years ago, and in 2009, when your father passed away the property tax basis stepped up to to the fair market value of the asset at his date of death. You could elect to use the fair market value for a date within 6 months after your father's date of death, but most estates use the date of death for the step up in basis date.

    I'm not sure why the attorney decided to handle the transaction in that manner. It may have been more advantageous for property tax reason in that state. You should inquire with the attorney.

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  • My father died and he left a will for me and my brother in grandmas safe . My grandma hates me so she is saying it dont exist

    grandma is trying to take money left for my brother and i please help me I dont know what to do she and my grandpa also left my dad stuff for when they died that he was also leaving to my brother and i but Im afraid now that he died they are going...

    Dwight’s Answer

    You should contact a probate attorney in your area immediately. Attorney fees for probate are paid from the estate. The best strategy is probably to file an intestate succession petition, and request the court appoint you the administrator. If you and your brother are the only children and there is no surviving wife, then you and your brother are the equal heirs to your dad's estate. Therefore, you may not need the will.

    Also if you believe that an attorney assisted your father in preparing the will, and you have any idea who the attorney may be, you should contact the attorney, inform the attorney of your father's death, and ask for a copy of the will. Most, if not all, attorneys have a copy of the executed will in their files.

    You should find a qualified probate attorney to assist you. Google probate attorney in your area, or call the County Bar Association and ask for their referral service.

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  • My moms estate at time of death, 2 months ago in Pa, was worth about 700k. 1 house net worth 200k, another house worth 230k,

    already transferred to my sister. The rest of the assets were stocks in a brokerage account. My brother just filed the estate taxes and put down a 31k executer fee that he wants. This is a simple estate and I want to know if the fee is too ...

    Dwight’s Answer

    The executor fee of $31K is about 4.5% of the $700K estate, and that is within a reasonable range. In California, where I practice, the executor fee set by statute would actually be higher than $31K.

    If the estate was probated, the executor's fee would normally have to be approved by the court. If the court has approved the executor's fee, (and if it is based on a statutory fee), then a challenge would probably be a waste of time.

    You may want to consider meeting with a probate attorney in your area to discuss your concerns, but it sounds like the probate case has already been concluded if the properties have been transferred, the taxes have been filed, and the executor has been compensated.

    If there was a probate case and it has been concluded, ask the executor for a copy of the final order. Or, obtain a copy from the court as it is a public record.

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  • When someone is appointed to be an executor in the will left by the parent are they able to deduct money out of the inheritance?

    There is 4 kids all together and my sister was made executor through the will of my parents is she allowed to deduct money for herself without letting us know first?

    Dwight’s Answer

    Generally, executors in a will are allowed to take compensation as an executor. In many states, such as California where I practice law, the amount of compensation is set by law, and must be approved by the court in the probate case.

    The executor is also entitled under law to reimbursement of out of pocket expenses that they have paid on behalf of the estate. Again this has to be approved by the court.

    Other than approved compensation (executor fee) and reimbursement approved by the court, the executor may not just "deduct money" out of the estate.

    Without more facts, I am unable to answer your question more specifically.

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  • What happens to my mothers mineral rights now that she has passed?

    My mother lived and died in Louisiana. She owns mineral rights in Oklahoma. She did have a will but didn't mention the mineral rights however we always knew of them. What do we do to receive those mineral rights? Does this require a succession?

    Dwight’s Answer

    The will does not have to expressly mention the mineral rights. Usually in the will there is a general statement that says something like "all of the rest of my estate shall be distributed to..." The mineral rights and all other properties, money, and assets not mentioned directly in the will are part of what lawyers call the residuary estate, and the beneficiaries named in the general statement about "all the rest of my estate..." are often referred to as the residuary beneficiaries.

    The will may need to be probated for the beneficiaries to receive the mineral rights. Because your mother was a resident of Louisiana, the probate case should take place there. I would seek out the counsel of qualified probate attorney in Louisiana, at least for an initial consultation to determine if a probate case is necessary. There may be a small estate procedure that would allow the family to receive ownership of the mineral rights without a full probate case.

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