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Timothy Clement Burkart

Timothy Burkart’s Answers

25 total

  • How to get rid of a house without it affecting the estate?

    My father purchased the house that I live in and I have always paid the monthly payment on it. The house is currently worth about $30,000 less that the mortgage balance because of the economy. I have 4 brothers and sisters and I am the executor...

    Timothy’s Answer

    You really need to speak with an experienced debtor/creditor attorney. Generally, the holder of a mortgage whose can enforce there lien on the house in two ways. The easiest way is a non-judicial foreclosure of the property, but the mortgage holder cannot go after the debtor for the difference if the value of the house is less than the amount owing on the note. A judicial foreclosure is more expensive and time consuming, but it does allow the creditor to go after the debtor's personal assets. In this case, your dad's estate would be considered the debtor and the mortgage holder who uses the judicial foreclosure option, could go after other assets in the estate. Your father's estate can use the creditor claim procedure as part of the probate of your father's estate, which may force the creditor to choose which remedy it wants to use. Again, you should definitely talk to an attorney familiar with this area of the law.

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  • Wondering if I should get a will. What is the best age to have a will and are there any other legal documents I should consider?

    I'm a 39 yo single female. I have a house and 401K - assets are about $400K. If I have no will, will my money go directly to my parents?

    Timothy’s Answer

    If you do not have children, then your property will pass to your parents under the intestacy statutes. Your 401(k) passes pursuant to plan documents and so you need to check with the custodian of your plan to see what the plan provides. Having a Will allows you to choose the executor of your estate (that is the person who will administer your assets at your death). It also allows you to make provision for persons other than your parents, like other family, friends or charities. Also, even if you want your estate to go to your parents, odds are you will survive them so you should designate who will receive your property if you outlive your parents. In addition to a Will, you should sign a durable power of attorney and appoint someone to make financial and health care decisions for you should you become incapacitated.

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  • Ira beneficiary designation change by spouse

    My mother signed away her beneficiary designation to my step fathers IRA's and pension. He designated his sons from his first marrage. They live in WA state. What steps can she take to change back the beneficiary designation to her if my step fath...

    Timothy’s Answer

    I wouldn't give up just yet. You should find out whether your mother had a community property interest in the IRA. If she did not, then her consent is not required in Washington as a spouse is free to designate the beneficiary of an IRA funded with separate property (the rule is different for plans governed by ERISA like a 401-k). If your step-father funded the IRA during their marriage with his community property earnings, then your mom should have a community property interest in it and her consent to have someone other than herself named is required. This is because she is essentially making a gift of her community property interest in the IRA. Your mom might try writing to the custodian of the plan and saying that she is revoking her consent or, if the facts support it, stating that she did not give informed consent. Your mom may not prevail, but it is worth a shot, and she may at least have a negotiating position.

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  • Estate

    Jane died without leaving a will. Her survivors include: 2 daughters who each have 2 children; two grandsons who are the children of Jane's son Chris who died in 2007, a sister, a cousin and her mother. How and to whom will Jane's estate be distr...

    Timothy’s Answer

    I agree with the prior answer. However, even if Jane owned real estate at her death, there are circumstances where a title company will allow the heirs to sign an affidavit of no probate, which will insure title to the property in the name of the heirs of the estate without the need for a probate. There are benefits to a probate, however, like getting certainty as to the decedent's creditors that may justify its cost even if the heirs could otherwise get access to the decedent's property. An experienced probate lawyer should be able to advise you on the proper course of action.

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  • WA state: Mother willed her share of the community property to their children. Can they get her share if father still alive?

    There are two houses involved and the business. Some personal items by the mother.

    Timothy’s Answer

    Yes, in the State of Washington, the first spouse to die is free to dispose of his or her share of the community property to anyone he or she wishes. You should make sure that the bequest to the children was not contingent on their father dying before their mother. You should have an experienced estate planning attorney review the Will on your behalf.

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  • My mother and stepfather were married in1969 he passed away in1999 without a will. They purchased a home together in 1977 in

    Wash. state with both names on the deed. Is it true that my mother can't take his name off the deed with this being a community property state? What does she need to do in order to have only her name on the home? Or is it even possible? And are th...

    Timothy’s Answer

    • Selected as best answer

    As stated earlier, Washington is a community property state and property held in the name of both spouses is presumed to be community property. The law in Washington is that when a married person dies without a Will, his or her share of the community property passes to the surviving spouse.

    In order to get stepfather's name off the deed, you would either have open a probate for his estate and have the personal representative sign a deed transferring the property into your mom's name alone. Your mom would have the first right to be appointed as the personal representative. Alternatively, you could contact the company that issued the ttitle insurance policy for the property and ask them if they would let your mom sign an "affidavit of no probate." If so, the title company would then insure that title is in your mom's name and you would not need to open a probate. The title company may charge you for a new title policy or at least an endorsement to the old policy, but that would be a lot less than the cost of a probate. Please note that even if it is necessary to open a probate for your stepfather's estate, probate in Washington state is a lot less complicated and costly than it is in other states.

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  • In the state of Washington,

    What sort of tax liabilities could possibly hold up the distribution of an estate for 2 + years that is under $800,000? Would it be necessary to distribute the proceeds in several distributions instead of one if all assets had been liquidated at ...

    Timothy’s Answer

    You need to find out what kind of tax liability is holding things up. It seems unlikely the reason is estate taxes as both the federal and state estate tax credits were much higher than $800,000 in 2009. It is possible that the decedent owed federal income taxes, which might delay distribution, but two years seems excessive and the executor should have a good idea of what is owed by now. Other taxes that could be owed are real estate property taxes or, if the decedent owned a business, state business and occupation taxes. If the estate is liquid, the executor should have a good idea what the potential tax liability is by now. The executor can retain sufficient funds to cover the liability as well as the expenses reasonably expected to be incurred to complete the administration of the estate and can distribute the rest to the heirs. I recommend you determine what kind of tax is at issue and why there is a delay. If you do not get a satisfactory answer, you may want to hire an attorney to represent you.

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  • Trust needed?

    I live in wa state. I have a very simple estate..divorced and everything goes to my daughters. Do I need a revocable trust set up? Can I do this myself with suze roman kit? Where do I file it?

    Timothy’s Answer

    Unless you own real property out of state or think you will own it at your death, a living trust is not necessary. As another contributer has noted, probate in Washington is not that big a deal. You should have a Will, however, that provides for the disposition of your property that you desire. I would not recommend you doing it yourself. It is fairly easy to create a valid Will - it is a lot harder to create a Will that is appropriate for your circumstances and a little profession advice can save a lot of heartache and money later on. If your daughters are under age 18, you should appoint a guardian for them. Moreover, if you do not think they can handle their inheritance if they received it today, you may want to create a trust in your Will for them. Finally, as stated by others, you should have a durable power of attorney that covers finances and health care decisions. You can also name a guardian for minor children in your power of attorney and name someone to make health care decisions for them if you are unable to do so. As you can see, there are a lot of issues to consider and the advice of a competent estate plannig attorney is well worth your time and money.

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  • Is a life insurance policy considered community property upon the death of a spouse?

    If a spouse has a life insurance policy and has named his children as the beneficiaries and has not included his current spouse as a beneficiary, is the surviving spouse entitled to at least haf of the insurance policy value leaving each beneficia...

    Timothy’s Answer

    The first step is to determine if the policy is separate property or community property. Are both spouses listed as policy owners? If yes, then it is presumed to be community property. Were premiums paid with community property, then the policy is presumed to be community property. If the policy premiums were paid with community property, then the policy proceeds should also be community property and the surviving spouse would be entitled to half of the proceeds. If the surviving spouse fails to assert his or her right to his or her share of the proceeds, then he or she may be deemed to have made a gift of half the proceeds to the other beneficiaries.

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  • WA estate planning- do IRA beneficiaries designated in a WILL take precedence over IRA beneficiaries designated for the IRA?

    My dad set up his IRAs to be divided among 4 beneficiaries. That is, each of 3 IRAs names 4 different beneficiaries (all the same people and same proportions). On the other hand, his WILL directs the IRAs to go to one beneficiary(one of the 4 n...

    Timothy’s Answer

    The short answer is that the designations on the IRAs will take precedence over the designations in your father's Will. While Washington statutes, RCW 11.11, allow a person to change the disposition of some assets that would not otherwise be subject to a Will, RCW 11.010(7)(a)(iv) specifically excludes an IRA from the application of that statute. If your father wants to change the beneficiaries of his IRAs, he needs to submit a change of beneficiary form to the IRA custodian.

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