Skip to main content
James P. Frederick

James Frederick’s Answers

14,068 total


  • How can I sell my empty lot. Property

    What can I do. I have small piece of land in northern Michigan. We are 3 equal owners. My mother who passed away back in 1983 in Italy. My aunt who has alziemeres in Italy and me who is a Canadian citizen. I want to sell but there was no deed e...

    James’s Answer

    I agree with Mr. Sowell. In addition to what he had said to you, in spite of your aunt's condition, it MAY be possible for her to execute a Power of Attorney form that would allow you to sign for her. There is a certain level of capacity that is required; her having Alzheimer's does not automatically prevent you from obtaining this form. Your mother's interest may have died with her or may pass through to her heirs, depending on the title.

    Depending on the value of the property, small estate proceedings may be available, if your mother's share needs to pass through probate. The small estate cap is $22k. If your mother's interest in the property is worth less than that, (which seems possible, if not likely), you should be able to avoid full blown probate, even if some form of probate is necessary.

    You will want to check with a probate attorney to determine how best to proceed. If your aunt has a POA or can get one for you, it may not be a difficult process to take care of this. If her disease is too far advanced, she will need to have a guardian/conservator appointed, who can sign documents on her behalf.

    James Frederick

    See question 
  • Is it essential for an appointed personal representative to set up a bank account in the name of the estate of the deceased?

    I am the sole beneficiary of my deceased cousin's home although my cousin named my sister as the executor. I hired a realtor and have a buyer for home now, but my sister insists that in order for me to receive payment for the home, she has to set ...

    James’s Answer

    In addition to what my colleagues have stated, the title company is required to issue a check to the Estate, which is considered the "owner" of the property. Tax laws require them to list the Tax Identification Number (TIN) for the Estate. One of the requirements of establishing the estate bank account is to obtain that number from the IRS. Your cousin's social security number cannot be used on anything, at this point. The new TIN is the number that the sale would be reported to. There probably will not be any income tax consequences to this sale. That does not change the legal requirements for the title company, however. Your sister has no choice in this. She will not be able to close without an account being set up. Once she has the check, she can cash it and close out the account again, assuming there are no Estate administrative expenses that need to be paid, first.

    James Frederick

    See question 
  • Without a will, how are assets split up within a family when a male resident of Michigan dies?

    I live in Georgia, my brother lives in Georgia but my parents are residents of Michigan. My father just passed away, how are assets split up since my father had no will.

    James’s Answer

    You do not say whether there was a surviving spouse or not. If there was, a good portion of the estate goes to the spouse. How much depends on the circumstances. If there was no spouse, then the children equally divide the estate. If any children predeceased your father, then their heirs would take by way of representation. Since there are many unstated facts in your situation, it makes sense to review this with a probate attorney in the U.P.

    How much is the estate worth? There are small estate procedures if the assets are worth less then $22k.

    James Frederick

    See question 
  • Do I need to have a lawyer to complete a Lady Bird deed? Or can I do one myself and have it notarized?

    I have terminal cancer and my husband is not on the deed for the house I own.

    James’s Answer

    You can do it yourself, but if you do not do it correctly, it will cost your husband WAY more than the $250+/- that it would cost to have a lawyer set this up properly. Given the stakes involved, it does not seem like it is worth messing with. Most lawyers do not even know what a lady bird deed is. If it were me, I would try to scrimp elsewhere, and I would have an estate planning lawyer prepare the deed for you.

    I am sorry to hear about your diagnosis. I wish you and your husband the best.

    James Frederick

    See question 
  • Do I and my brothers and sisters have to pay taxes on an inherited trust set up by our recently deceased father.

    The trust is with Schwab Financial in Arizona. My brothers and I live in Michigan, a sister in Arizona, a sister in California and a sister in Florida. Also a brother in Arizona. The IRA total is 72,853 of which is to be divided equally seven wa...

    James’s Answer

    There is not enough information to say for sure. If this is a traditional IRA, however, then there will be deferred income taxes that will need to be paid. If it is a Roth IRA, then there should not be any income taxes. There is no inheritance tax in Michigan, nor does there appear to be one in Arizona for people dying after 2004. So there should be no other taxes, aside from potential income taxes. It is probably better if you inherit this asset directly, as opposed to having it pass through, (and be taxed by) the Trust. Trusts and Estates have very steep tax brackets. You should consult with the trust attorney and a CPA to determine how best to structure this, for income tax purposes.

    James Frederick

    See question 
  • My sister was named executor of my mothers will. How long before she settles the estate?

    My mother named my sister executor. There are 4 of us and everything is to be divided up equally. Mother had 2 homes, had a few cars and a bank account and contents of homes. . It has been 2.5 + years and yet nothing is being done. We had someone...

    James’s Answer

    This is not the way things are supposed to work. It is not clear from your summary if your sister has actually been appointed Personal Representative by the Probate Court, or if she is simply nominated to act in that role by the Will. Until the Probate Court admits the Will and appoints the PR, no one has legal authority to do anything. If your sister has not filed to open an estate, any interested party can do so, at this point.

    You will want to review ALL of the facts of your situation with a probate attorney to determine how best to proceed, at this point. It sounds likely you will have some resistance from your sister, no matter what you decide to do.

    A typical probate estate is open from 6-12 months. The estate MUST be open for 6 months, under Michigan law, in most situations. It is common for the estate to be wrapped up within 12 months or less. You are owed several documents in connection with the estate, not the least of which are an inventory of the initial assets in the estate and at least an annual accounting of the administration, thereafter.

    You will want to ask your lawyer about possible conversion of the vehicles and/or other assets of the estate.

    James Frederick

    See question 
  • About how much will it cost to have a Special Needs trust in Michigan audited?

    We believe that the trustee has spent money not-for-the-benefit of the disabled person for whom the trust was established. We filed a petition with probate for an audit because we've been told that special needs trusts fbo individuals receiving go...

    James’s Answer

    The judge will likely appoint a public administrator to review the account and determine whether anything inappropriate has taken place. I do not know why this would cost $5-10k, but it depends on the facts of your situation. I think the judge WILL be troubled by the apparent pattern of assets disappearing from the estate.

    James Frederick

    See question 
  • Is money in annuities, mutual funds, stocks 'touchable' as far as having to pay down estate in for medicare to cover expenses?

    Looking to make the best choices as far as dispersing my mothers estate so that we have some control as she may need more care. She has mutual funds, annuities, stocks as well as standard checking accounts.

    James’s Answer

    Money used to pay for your mother's expenses and needs is fine. Anything that is given away or for which she does not receive fmv can be considered a divestment by the government. Medicare is not the issue. That is insurance for anyone over the age of 65. You are talking about Medicaid, which is a welfare program. Someone who has very limited assets could potentially qualify for Medicaid, which pays for nursing home care. Anyone who impoverishes themselves artificially in order to qualify is subject to a five year look back period before qualification for benefits.

    There are options available for some people who are in a gray area in terms of qualification. Your best bet is to meet with an elder law attorney to discuss the facts of your situation in detail.

    James Frederick

    See question 
  • Is money in elderly mothers checking account, with both sons names on it too, 100% a part of her estate, or split with sons?

    Hi there. My mother is 92 and has much of her money invested but there are several checking and savings accounts that have over a hundred thousand dollars total. Both my brother and I share financial POA and both of our names are on the accounts...

    James’s Answer

    Joint assets are not part of the probate estate. Upon your mother's death, they would pass to the sons. As a joint owner, you would normally have access to the funds during lifetime, and generally, any one of you could drain the entire account. It is not a good idea to hold title in this manner, in my opinion. There are too many potentials for problems and/or abuse of the situation. I have also seen creditors of the joint owners gain access to the funds when they otherwise would not have had any. Since you have the POA, you would have access to these funds to take care of your mother, even if you were not on the title. That is what the POA is for. You could be beneficiaries of the accounts without having the negative potential consequences set forth above. That is a better arrangement for everyone.

    James Frederick

    See question 
  • How can I get in contact with a deceased persons lawyer

    My grandparents passed away and I was informed that they have a will. But my uncle has destroyed everything legal. He was the P.O.A at first and wiped their account out, taking all vehicles etc. And refuses to share info on what's going on. We cou...

    James’s Answer

    Given the stakes involved, I do not see any other option than retaining a lawyer. You can certainly request a copy of a Will from the drafting attorney, if you know who that is. If the attorney HAS the original Will, it is supposed to be filed with the Probate Court. If he or she only has a copy, then you would need to use formal proceedings to open an estate. It is very important that you act quickly, given the dissipation of possible estate assets.

    James Frederick

    See question