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Robert E. Millsap III

Robert Millsap’s Answers

284 total

  • I have a situation where my sister is the Executor of my parents estate. They are still living. Both 86. Mother has severe

    Severe alzheimer's and is a assisted living home. Father is and has dementia, and the only reason a will was drawn up was because my sister took him to an attorney, and he just signed that everything is split 1/3/ 1/3 1/3. Herein lies the proble...

    Robert’s Answer

    Tough situation.

    Apparently your dad still lives at home.

    Apparently he executed a Power of Attorney to name sister to be the attorney in fact.

    If your Dad has dementia and your mom has alzheimers, I think you have good grounds to start a guardianship for your mother. Does shoe have a power of attorney? That should give you some grounds to get an accounting of what they have now. You can start one for your Dad maybe but he has a Power of Attorney that often makes a Guardianship unnecessary.

    RCW 11.94 has grounds to get an accounting from an attorney in fact under a power of attorney.

    Does your other sister agree with you. I would hate to see you go it alone. It would be best if she was joining you in such an request.

    As far as the sale of the home after your parents die, if the equity is not needed to pay off estate debts, it would go out to the heirs as tenants in common. Then you would have to start a partition action (expensive) to have the court sell it.

    It is a tough situation. Full disclosure is best. I would talk to your other sister and see what she thinks.

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  • Estate not in probate, still need to file Notice of Death with the court?

    My father passed away earlier this year. His estate did NOT require probate, and the assets have already been divided up between my sister and myself. The IRS, King County, etc... have received death certificates. Someone told my sister we need...

    Robert’s Answer

    I think they are referring to just filing the original will with the court. It costs around $20 and just makes sure there is full disclosure. Filing the will is not the same as probating the will which requires administering the estate. Apparently you have already done that informally.

    It is still advisable to hire an attorney because you should know the tax consequences if any and your responsibility if credito claims arise.

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  • Why does my daughter need a lawyer and what does that mean? Does she need a trust set up?

    My grandma's will states my inheritance is to be held in trust for two years. The lawyer told me that since I now have a child, she must have a lawyer representing her as of WA trust law. He wants his friend to be that lawyer and to set up a trust...

    Robert’s Answer

    • Selected as best answer

    An attorney would have to read the Trust to answer the question. In general, when you are changing the terms of the Trust or making distributions that might impact a minors interest, the court requires that the minors interest be protected so that it is not depleted. That requires a special representative who represents the minors interest and not your interest.

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  • Can I be named executor of a living trust if I have a felony? In many states it does not matter.

    It shouldn't matter to anyone except who is appointing me. Judges in many states defer to the person's wishes. I live in the state of Washington.

    Robert’s Answer

    In the state of Washington you cannot act as the PR if you have a felony although I have heard that other counsel has been able to get an ex felon appointed if the felony has been closed or expunged. That basically means that it is closed after a certain time period.

    I was uncertain about one issue in your question. You live here but where did the decedent die? The laws of the state where the decedent passed away will determine if you can act as a PR or as a Successor Trustee on a Living Trust. Our answers so far basically assume that the decedent died here.

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  • HOW do I, DPOA and Executor, legally transfer estate's house sale proceeds to sole beneficiary - ME - without probate?

    Dad died 2013, and I am DPOA, Executor, and sole beneficiary of house that is currently in sales process. I am also the TOD co-owner of the bank account. The Real Estate company says I can sell house without being on title with an Affidavit - Lack...

    Robert’s Answer

    • Selected as best answer

    Real estate is one of the largest components to your financial statement and your well being that you will have. A probate with publishing notice to creditors is the best protection that you will have to make sure that it is creditor free when the property is transferred us sold. Trying to do it outside that environment can often be penny wise and pound foolish.

    I think the real question is whether the Title Insurance company will insure such a sale to a third party relying on an affidavit of lack of probate. They might. If they agree to do that you could sell it without the probate. I have heard of others doing that. There is just no substitute though in my mind for getting clear title through the probate. It is the safest course to take I believe. I just think a probate is the safest way to go to make sure you get closure on the sale of a a big ticket item.

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  • Beneficiary designation for convenience

    My mother passed away earlier this year and has named my brother as a beneficiary on an annuity. Her will states that any person named as a beneficiary or joint tenant was done for convenience only and that those assets shall be distributed in ac...

    Robert’s Answer

    It depends. It is a fact specific question that whomever is advising you is going to have to see the documents and the dates.

    A will can control the disposition of a nonprobate asset. However, if the beneficiary designation of a nonprobate was executed after the will, then it would cancel that will provision.

    My recollection is that a annuity is not a "nonprobate" asset though that can be overruled by the Will by virtue of RCW 11.11.

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  • Thousand trails scammed inherited membership from family can we sue.

    1989 father die leaving thousand trail original membership to all 9 children. Thousand trails contacted one sibling and transfer membership to her and gave membership to brother saying he was her husband . This was illegal right? All siblings were...

    Robert’s Answer

    I am not familiar with Thousand Trails or their paper work. I am guessing their is a contractual provision that tells them what to do when the member dies.

    If they followed the provision there would probably not be a claim unless the will somehow overruled it.

    If they did not, then the statute of limitations has probably expired or you run into the statute of repose, in short, let sleeping dogs lie because it has been so long.

    You are not going to be able to navigate through the options but if it still bothers you, then you best take the paper work to an attorney and put the matter to rest.

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  • Can I as P.R. in a contested probate make a motion for reconsideration?

    I missed the court hearing that removes me as P.R. in a probate, due to burdensome hardship of having to work this pro-se. I have been unjustly denied obtaining an attorney due to opposing attorney solely dealing with bank where estate funds are ...

    Robert’s Answer

    You have identified a lot of issues to address. Too many to answer effectively on a message board. This just sounds like a tough case to do pro se.

    In general, repair work is just a lot harder than addressing the motion at the first hearing.

    If you do not like the result form the hearing, it is usually a matter of filing a Motion for Revision in King County if the Tribunal was a court commissioner. You need to identify if it was a commissioner. The statute is RCW 2.24.050. It must be filed within 10 days of the hearing where the order was entered.

    Emergency orders would be tough in this situation since you missed the first hearing. It sounds like you want prejudgement relief like a temporary restraining order followed by a preliminary injunction. That is a lot of legal work and you have to have very good grounds.

    At a minimum, I think you should consider filing a Request for Notice of Proceedings under RCW 11.28.240.

    I hope that helps. This just sounds too tough for a pro se and now requires the pound of repair instead of the ounce of prevention.

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  • Is a "secondary" or "contingent" trust beneficiary a beneficiary under WA state law?

    And if so, are then then entitled to/required to be given accountings of the trust? How does one enforce this?

    Robert’s Answer

    There have been changes to the Trust law effective a mere month or so ago. A Trustee has a general duty to inform a contingent beneficiary. It is not well defined just what that means. There is no requirement for an annual accounting to a contingent beneficiary from what I can see. Also there is an exception to the general duty to inform where the current beneficiary is the spouse of the trustor. Then there can be more privacy.

    It is a tough issue to navigate around on a message board. An attorney will have to roll up his or her sleeves a bit to get the right answer for you under the new statutes.

    Sorry I cannot be more help but it is a new statute that most of us are not used to yet.

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  • Can I subpoena my mom's former attorney?

    I am the executor and I found a check with an attorney's name on it. I am also in a will-contest. I believe she may have had a will made up years ago at this attorney's office. If the attorney made up a will and gave a copy to someone else, can I ...

    Robert’s Answer

    You have strong standing to be able to have possession of the will. Here is the statute on the issue and it makes a lot of sense. RCW 11.20 .010

    Any person having the custody or control of any will shall, within thirty days after he or she shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his or her custody or control any will shall within forty days after he or she received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall wilfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation.

    People often like to see the prior will because it helps to interpret the present will.

    I believe as the Executor, you would stand in the shoes of the Decedent so her prior attorney should respect your desires. The Attorney may be worried that there is a privacy issue where they would feel better of there was a subpoena. As others have suggested, call and ask what is the best way to work with him or her to get a a copy of the will and demonstrate that you have been appointed as the PR. If you have letters testamentary, the attorney will be very accommodating I suspect.

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