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Can a prisoner inherit a house and/or be the executor of a will? Would the house have to be put in a trust? What kind?

Philadelphia, PA |

Mother really wants her son to inherit her house and to be executor of her will. She doesn't understand why he can't do it if he can write letters--that it might be slower than needed, but he could carry out her wishes. Even if he is not the executor, she really wants him to get her house. What kind of trust would it need to go in? Thanks!

Attorney Answers 3

Posted

Being an executor is not the same as being a beneficiary. Someone in prison is just not the proper person to be executor. The executor is the one that administers the estate and being in prison is a very large obstacle in doing that. She can name him as a beneficiary of a trust or her estate without being named executor and that is the best way to handle the problem. A trust may be considered but you need to meet with an experienced estate planning attorney in a face to face meeting to determine what is best for the son and all concerned parties.

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Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is

LEGAL DISCLAIMER Mr. Fromm is licensed to practice law throughout the state of PA with offices in Philadelphia and Montgomery Counties. He is authorized to handle IRS matters throughout the United States. His phone number is 215-735-2336 or his email address is sjfpc@comcast.net , his website is www.sjfpc.com. and his blog is <http://frommtaxes.wordpress.com/> Mr. Fromm is ethically required to state that the response herein is not legal advice and does not create an attorney/ client relationship. Also, there are no recognized legal specialties under Pennsylvania law. Any references to a trust, estate or tax lawyer refer only to the fact that Mr. Fromm limits his practice to these areas of the law. These responses are only in the form of legal education and are intended to only provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that if known could significantly change the reply or make such reply unsuitable. Mr. Fromm strongly advises the questioner to confer with an attorney in their state in order to ensure proper advice is received. By using this site you understand and agree that there is no attorney client relationship or confidentiality between you and the attorney responding. This site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your jurisdiction, who is familiar with your specific facts and all of the circumstances and with whom you have an attorney client relationship. The law changes frequently and varies from jurisdiction to jurisdiction. The information and materials provided are general in nature, and may not apply to a specific factual or legal circumstance described in the question or omitted from the question. Circular 230 Disclaimer - Any information in this comment may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.

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Posted

Mr. Fromm offers you some very sound advice. In most of the states that I've bothered to check, convicted felons are disqualified by statute from serving as the personal representatives of estates. Even if mom did nominate her son, it's pretty unlikely that a Court would appoint him -- not because the job requires personal and physical attention, but because of his status as a convict.

This does not, however, have much bearing on mom's ability to pass along her property to her son at her death. A trust might be a useful tool, as it could install a fiduciary to see to the immediate hands-on needs of the house (maintenance, rental, etc.) for the period of time that the son remains incarcerated. But a trust is not necessarily the only or best option. If mom is as determined as she sounds, it's worth a couple of hours of an estate planner's time to sit down and receive some practical and experienced advice.

This answer does not constitute legal advice. I am admitted to practice law in the State of Texas only, and make no attempt to opine on matters of law that are not relevant to Texas. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship.

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Posted

Both answers are typically excellent. If the imprisonment is a temporary thing, it may not matter. If the Son is a felon, or in for a long time, he will not be appointed Executor. That does not mean he cannot get the assets under Mom's estate. Depending, again, on how long he is locked up, a Trust may work and it can be a Testamentary Trust, one set up by the terms of her Will. If she is concerned that he have THAT house, that is one thing but if she just wants him to have her assets generally, the house can be sold and the money held for the Son on his release as well. She needs to see an attorney though.

Use the AVVO.com web site to find an attorney in your area. In addition to that, contact your local bar association for referral to an attorney who specializes in this or talk to friends and neighbors to ask about an attorney they have used and liked. Often, but not always, the attorney will do an initial consultation free of charge. You will then be in a better position to determine what to do next. Best of luck to you!

If you liked this answer, click on the thumbs up! Thanks. Eliz. C. A. Johnson Post Office Box 8 Danville, California 94526-0008 Legal disclaimer: I do not practice law in any state but California. As such, any responses to posted inquiries, such as the one above, are limited to a general understanding of law in California and not to any other jurisdiction. In addition, no response to any posted inquiry should be deemed to constitute legal advice, nor to constitute the existence of an attorney/client or other contractual or fiduciary relationship, inasmuch as legal advice can only be provided in circumstances in which the attorney is able to ask questions of the person seeking legal advice and to thus gather appropriate information.

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