Skip to main content
James P. Frederick

James Frederick’s Answers

14,017 total


  • Can a probate judge add land deeded to some of the beneficiaries back into the value of a revocable trust

    my brother and I have or are suppose to own our mom's land she had a revocable living trust and a will. the land is deeded to us with mom having a life lease. the title company says we own the land, actually have owned it for several years 3 attor...

    James’s Answer

    This is too complex an issue for a forum like this. You have already done a lot of work on this and apparently gotten contradictory advice. To tell you to see another lawyer seems pointless. The only other thing I normally suggest would be to sit down with an examiner at a title company and ask them what it would take to get them to insure the property in your names. Since you have already done this, it sounds like you may need to involve a judge to quiet the title to this property. Much more would need to be known before making any suggestions about how to proceed, however. Specifically, I would want to know what the two attorneys who claim the land is part of the Trust are doing about this, if anything.

    James Frederick

    See question 
  • Can somebody be prosecuted for having an incompetent senior citizen turnover DPOA to them?

    Long story short, I have had power of attorney on my father since 2002. My dad is in a medical rehab facility currently and will be 85 years old next month. My brother decided today to present power of attorney paperwork to the facility to try to...

    James’s Answer

    I know of no cause of action against your brother. Keep in mind that there is a relatively low level of capacity required to execute a Power of Attorney form. If your brother had your father see an attorney to get this done, then that would be a complete defense. In any event, it appears that this is all in the hands of the Court, now. If there is no agreement amongst the family, there is a chance that the Judge will have a court-appointed attorney act on your father's behalf. It is also possible that the Judge will honor your existing POA. It may improve your odds to have a probate attorney represent you at the hearing.

    James Frederick

    See question 
  • Really old asset found 30 years after estate was closed. All named heirs are dead.

    My wife's grandmother passed in 1985, the entire estate was divided between her two daughters, and closed in 1986. Fast forward to 2016. Both daughters have passed. An account with more than $30,000 was found in grandmother's name. The wills of bo...

    James’s Answer

    I agree with Mr. Ceci. Given the amount involved, you would need to reopen the prior estate and the beneficial interests of that estate were "vested" in the daughter's estates. Half would appear to pass to the estate of your aunt and half to your mother's estate. Once you get to that level, you can probably use small estate proceedings for both of the daughter's shares. I do not see a way around re-opening your grandmother's estate, however.

    James Frederick

    See question 
  • Can I request to receive my brothers cremains it's been since 1998 and his domestic partner has them.

    I want to have my brother's ashes bought home for burial with my parents grave site. The service was at Desert Memorial Cremation and Burial Society, 1111 Las Vegas Blvd. North in 1998. His partner took the ashes but now I want them brought home ...

    James’s Answer

    Since your brother's ashes are currently in Nevada, I would suggest you re-post this question as a Nevada question. Most Nevada attorneys will not see your summary, since it shows a Michigan location. Under current Michigan law, you can ask, but you have no legal right to demand possession of the cremains.

    James Frederick

    See question 
  • Can I change lawyers and law firms after I already have one working on my case for a week?

    I found a lawyer I thought could suit my case well but my family now suggest I use the family lawyer instead.

    James’s Answer

    The answer is generally yes, but it may not be cost-effective for you to do this. You may want to meet with the family lawyer to discuss the situation, first. If the other lawyer has not yet begun to work on your case, he or she may agree to step aside for a nominal fee. On the other hand, if he or she has begun work, then there might already be a significant charge. You should also consider which lawyer is better positioned to handle your matter.

    James Frederick

    See question 
  • Does my sister have to pay capitol gains tax on my deceased father's home?

    My father passed away three years ago and my sister had lived with him for many years before he passed. My father intended for my sister to inherit his house since she was his caretaker of many years. When my father was alive we made a revocable t...

    James’s Answer

    In all likelihood, based on what you have said, yes, your sister WOULD need to pay capital gains tax, but only on the gain in value since the time of your father's death. There would have been a "step up" in basis, up to that point. You will want to have an attorney and CPA review all relevant paperwork to be certain of this.

    James Frederick

    See question 
  • What can be done if a last will and testament is not being followed?

    My grandfather passed away on 3-11-14 and his wife (not my grandmother) went against everything he wanted in his will. My grandfather wanted to be buried in a plot he paid for next to his parents, instead of doing that she cremated him and kept hi...

    James’s Answer

    I am sorry that you are experiencing all of this. It is possible that you may have recourse, but it sounds very unlikely, under the facts you have stated. Your grandfather's Will is only relevant to assets that he held title to, in his name alone. It SOUNDS like everything was held jointly with his wife. If that is NOT the case, then the Will would have been probated and you would have had a chance to challenge her actions in court. Since that apparently did not happen, my guess is that all of the assets were joint and became his wife's assets, upon his death. Your grandfather could have prevented this from happening by setting up his estate planning and asset titles differently. Since he apparently did not do so, the rest of the family is largely at the mercy of what his wife does/wants done.

    James Frederick

    See question 
  • Would I have a case to sue my brother as my mother signed over the house deed when she was not of sound mind and body?

    My father passed away in 2006. My mother had the onset of dementia, to which my sister was taking mother to the doctor regularly and had proof. In 2007 my eldest brother had mother sign the deed of the estate over to him. Our parents wishes in the...

    James’s Answer

    Mr. Powe has given you an excellent explanation of the realities of the challenges that you face. You have a seriously uphill battle and even if you win, it will likely be hard fought and with lots of expenses on both sides. You cannot do this on your own, with any reasonable chance of success. Whether you have any real hope depends on facts which are not included in your summary. Being diagnosed with dementia does not mean you lose all right to make estate planning decisions. It is a red flag, but without compelling evidence, the Court is not going to overturn the deed. A person does not need to have much capacity, in order to sign a deed. Was this handled through an attorney? If so, the attorney will likely testify that your mother knew exactly what she was doing. You have a very difficult burden to overcome. Whether there is a Will or not is irrelevant, if all of the assets passed outside of probate. You meed to meet with a probate litigation attorney as soon as possible, to determine if there is any basis to challenge the deed. You may already have waited too long to file a claim.

    James Frederick

    See question 
  • Is the will still valid, or do we need to have it amended to reflect my maiden name?

    My father has a will, and it names me as the executor of his estate; however it notes my previous married name, I have taken my maiden name back.

    James’s Answer

    I agree with Mr. Conway. You may need to prove you are who you say you are, if/when this goes to Court. This should not be a problem, at all. If your father has a Power of Attorney form that also names you, you may want to keep a copy of your marriage license handy, in case there is a medical emergency.

    James Frederick

    See question 
  • In Michigan can my mother sell her share of joint assets (house,land) if my father is under guardianship/conservator ship.

    My father is in under guardianship/conservator ship. My mother is in charge of his affairs. Can she sell her half of their joint assets (house, property) to one of their children? We are in Michigan.

    James’s Answer

    A sale of assets is probably fine, whether they are your mother's OR father's or joint. The key would be: is the sale for fair market value? If it is not, then you may need to address the issue in court. Why would you want to do this? Is it for estate planning purposes? Is it to qualify your mother for government assistance? There are additional facts necessary before we can give you a clearer answer. As Conservator, your mother probably has legal authority to sell your father's assets, as long as it is for FMV and in his best interests to do so. You would not want to undertake that action without getting legal advice. Depending on what your mother is trying to accomplish, she should have legal advice, regardless. She needs to make sure that all of HER estate planning is in order and up to date, given what has happened with your father.

    James Frederick

    See question