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Loraine M. DiSalvo
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Loraine DiSalvo’s Answers

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  • Can I legally take the assets that were left to me in a will if the will hasn't been probated?

    Grandmother died in 2013, the will still hasn't been probated. The material items were left solely to me, can I legally remove them from the property without the will being probated?

    Loraine’s Answer

    No, until the Will has been admitted to probate, it has no legal effect, and those items do not belong to you. In addition, even if the Will had been probated, the Executor would need to get through at least a decent part of the administration before making distribution to you or any other beneficiaries. You can try to have the probate court compel the person holding the Will to produce it, or you may be able to file for temporary administration of the estate, and get things moving that way. But if you just take the items you can be charged with theft. Consult a good probate attorney about your options.

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  • What can be done if the trustee (and beneficiary) disagrees with the interpretation of a trust, as given by the trust-advisor?

    My precious parents left me an inheritance which is secured in trust for me until I meet a certain condition. My good sister is the trustee. Although my sister and I understood this condition when the trust was created, we also thought there was a...

    Loraine’s Answer

    The trustee may well be advised to contact the attorney who prepared the trust with interpretation questions. As beneficiary, you are also entitled to have your own attorney review the trust for you. It's not clear who this trust advisor is, or whether the trust itself provides for that person or it's just someone the trustee hired. But, if any of the trust's provisions are not clear to you, again, you are free to hire your own attorney for advice.

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  • What type of lawyer should be consulted to review our Father's living trust?

    The trust names the four children as beneficiaries. Two of those children are named as trustees. Do the other two have any rights concerning financial updates and health care information since our father is now in a memory care facility?

    Loraine’s Answer

    As to the type of lawyer needed to review the trust, an attorney with experience in estate planning or elder law would generally be the best choice.

    As to your question about whether children named as beneficiaries have any rights to information about finances and health care being provided to your father, no one can answer that question without a lot more facts than can or should be presented here. The answer is going to depend on exactly how the trust is written. If it is a typical revocable trust, your father is likely the only actual current beneficiary as long as he is still living, and the interests of the children-beneficiaries are likely remainder interests (i.e., you will receive actual benefits only after your father's death). In that kind of trust, your father would normally be the only person who has the right to information about the trust during his lifetime. If it's an irrevocable trust, then the question is whether your father is the trust creator and the children are current beneficiaries, or whether your father is the current beneficiary and whether the children's interests as beneficiaries are also current or only remainder interests.

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  • How long can a trustee hold our money?

    We have an irrevocable trust. Its pretty much a cookie cutter one from the samples I have read on the internet. It states upon the death of the 2 original beneficiaries that the assets were to be split amongst the 6 blood heirs and if any of those...

    Loraine’s Answer

    I agree heartily with Mr. Douglas's answer. I just wanted to add that the trust will need to file income tax returns and, possibly, pay income taxes on any gain from the sale of the first parcel. If the sale was only 5 months ago, then it is entirely possible that the trust hasn't had a chance to do that yet.

    If you really want a solid answer about your rights with regard to this trust, and whether the trustee is acting reasonably, then you will need to hire your own attorney. This forum does not allow anyone to answer specific questions, just general ones. Best wishes to you.

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  • Can I avoid probate in Georgia if there is no will but only one heir?

    My father-in-law recently passed away and we are wondering if we will have to go through probate in Georgia if there is no will but only one heir.

    Loraine’s Answer

    Unless every asset passed by a beneficiary designation or a right of survivorship or was a car for which the original title is available, there very likely will need to be some probate court involvement. But the only way an attorney could tell you exactly what you need to do is to sit down with you for a consultation. There are too many factors that have to be considered.

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  • Do i need a trust attorney to manage a special needs trust.

    My mom recently passed away. She lived in the State of Alabama and has requested that my inheritance go in a special needs trust. I am disabled. The will is in Probate. I need to know if i need an attorney in the State of Georgia to manage this tr...

    Loraine’s Answer

    Your mother's Will should appoint someone to serve as a Trustee of your special needs trust, and the person or company who is nominated as the Trustee should ideally have an attorney help them with management questions (especially if the Trustee is an individual who is not used to serving as a Trustee or to dealing with special needs trusts). You would be entitled, if you want one, to hire your own attorney to help make sure the Trustee of the special needs trust is doing the job correctly. But you aren't required to hire one for yourself.

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  • Business Trust

    Can a business place only a portion of its activities in a trust? Let's say a business is providing different type of services, can it place only a portion of its services in a trust so that the Trustee can look after this specific part of the com...

    Loraine’s Answer

    The very short answer to your question is that yes, a business is generally able to separate different business operations into different structures, but I agree with Mr. Cohen that your question is also confusing (I'm not sure why you would be putting any part of a business into a trust; a trust is not usually the type of structure used for business operations) and that it sounds like you really ought to sit down with a good business attorney and discuss what you are thinking of doing before you decide what to do or make any moves. There are way too many facts that would need to be reviewed in any actual situation for an attorney to be able to give you advice on whether a particular proposal or structure is a good idea in this forum. This is intended only for general answers to legal questions, not for providing specific legal advice.

    Best wishes to you.

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  • Will I still receive my share of my deceased father's business even if it closes?

    My father died 3 years ago and my step-mother has yet to distrbute the estate. 60% of the business that my father owned was left to me with the remaining 40% split amongst my sibilings and step-mother. If the business is not doing well financial...

    Loraine’s Answer

    You should still receive your share of whatever remains in the probate estate after everything has been wrapped up and all debts, expenses, and taxes are paid. That's not necessarily the same as saying you will receive your 60% share of the business or the net proceeds from its sale, though. If you want to ensure that your interests are being protected and that your stepmother isn't dragging things out unduly, then you need to consider hiring your own attorney and making some inquiries into why things are still not wound up. It's not necessarily improper for an estate to still be open 3 years after someone passes on, especially if an estate tax return was filed or required, but someone should be trying to preserve the business as much as possible, not letting it fail from neglect (I'm not sure if this is what's happened, but your question seems to imply that maybe the business hasn't been properly attended to). Best wishes to you.

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  • Can the executor take anything they want?

    My dad had made a will 15 years ago and put his friend as the executor. Since then there are several items that are not listed on the will. Like the life insurance policy that has me for the beneficiary, but says nothing of that on the will. Can t...

    Loraine’s Answer

    Wills normally don't list every asset. The question, when your dad passes away, will be what assets became part of his probate estate (a car usually does) and what didn't (the life insurance, if you are designated as the beneficiary on the policy, will not, if you survive your dad). The executor's job is to figure out what became part of the probate estate and make sure that debts and expenses are paid, creditors are notified correctly, and final tax returns are filed, and then to distribute any remaining assets in accordance with the Will. So, even if your dad's friend, as executor, needs to take control of a probate asset (like the car, or a house, or an account that your dad held in his own name with no designated beneficiary), he should eventually distribute the remaining assets back to you, if you are the beneficiary under the Will. If, after your dad dies, you think the executor isn't doing something correctly, you are free to raise questions and make challenges. If you don't think the friend will do a good job at the time, you can even try to prevent him from serving as the executor. But no, he can't just take whatever he wants just because he is the executor.

    Hope this helps put your mind at ease.

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  • Legal obligation of trustee/executor of a trust/will

    Is the trustee/executor of a trust/will legally required to notify beneficiaries that they have been named in a trust/will and do they have to provide a copy of the trust/will?

    Loraine’s Answer

    The answer depends on various factors. The executor of a Will is usually required to notify beneficiaries who are going to receive outright distributions of their interests. If the Will creates a trust, or if the trust is created by a separate trust agreement, then whether the Executor or Trustee is required to notify the beneficiaries of the trust will depend on such issues as: 1. what applicable state law requires as far as notice (some states require notice in more situations than others); 2. what the Will or trust says about what notice to beneficiaries is required; and 3. the exact interest held by each beneficiary.

    If I am advising an Executor or Trustee, I generally recommend that they provide notice in many situations where they aren't strictly required to, because I find in most cases being open with potential beneficiaries can help stave off trouble, but that's a case-by-case basis question.

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