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Howard Todd Whatley
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Howard Whatley’s Answers

48 total


  • What can I do to protect my Dad?

    My father is terminally ill. He recently became incapacitated meaning he doesn't talk much, and can hardly wake and can't sign anything. He is on hospice care. He has no living will and no power of attorney. I am his only child. There is other fam...

    Howard’s Answer

    The good news is that you are the heir of your father's estate based on Arkansas law as long as there is no other estate planning document out there that does something different. Your sister having him sign something now would look very suspicious and I think you could get thrown out. The bad news is that you will most likely have to go through probate to manage his assets that are stuck in his name at his death. If he listed you as a co-owner or beneficiary of any bank account, then those will be yours at his death without the need for probate.

    Regarding guardianship, you may be OK without doing that. Him being in hospice means that they will not do any life sustaining measures to keep him alive. Hospice is there to make his life as good as possible until his death. They will not delay death any so therefore you would not need a guardianship to make sure that happens. If there are bills that need to be paid, you could get a guardianship now so that you can pay them or you can just wait until his death (since it seems to be within a reasonable time or else he would not be on hospice) to handle those things in probate. You may want to get with an attorney in that area just to make sure you do things the best way possible now and upon his death. I would recommend Rebecca Winburn or Dennis Wilson who are both in Little Rock and focus their practice on this area of the law.

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  • Besides having a will that can be probated, how can an owner insure that the person she wants to have her home, gets the home?

    My great aunt is a homestead widower of property her husband left her. I'm not sure if it's still in my uncle's name, he's been dead over 40 years. She is 75 yrs and has 3 grown children. The daughter(30's) has mental illness, but is married and ...

    Howard’s Answer

    Please only take advice from attorneys in your state who knows your law and practices in the area of law your are inquiring. It wears me out. Your aunt should meet with an attorney who has her best interest at heart and will most likely do a Life Estate Deed or a Beneficiary deed. You do NOT want that to pass by Will since it will be in court and very likely to a challenge. Also, if done by an attorney correctly, the undue influence challenge will essentially disappear. Also, she should not deed it completely during her life, as previously recommended due to significant tax and liability issues. I can assure you that either the life estate deed or the Beneficiary deed will meet her needs. There are significant differences between the two and times to use one and not the other. I suggest that you seek the advice of an elder law attorney and specifically a Certified Elder Law Attorney in your area. Good luck.

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  • Where can I get the document to sent up my cremation wishes

    The agent I had to carry out my cremation has passed away. I need to set another one but, don't know where to get another legal document.

    Howard’s Answer

    • Selected as best answer

    This is a great article on this topic. Also, there is a form that is referenced early in the article that allows you to complete a form, sign it and have it witnessed and those wishes will be followed. http://www.nolo.com/legal-encyclopedia/making-funeral-arrangements-arkansas.html

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  • How does a will differ from a trust

    I plan to use one or the other, but want to go with the easiest to carry out

    Howard’s Answer

    • Selected as best answer

    As an Arkansas attorney I can tell you that if you are looking for ease of carrying out your wishes, you use neither. You make sure that all of your assets are titled so that they are owned by you now and then automatically transfer to those you want to get them instantly upon your death. You do this by use of Payable on Death (POD) on you bank accounts and use of some type of deed that does the same thing.

    Now, there are times when that plan doesn't work. You do NOT want to use a Will in Arkansas if your estate doesn't have to go to probate. Probate is expensive and time consuming and should be avoided. However, if you have minor children that will need to have a judge decide who will become the guardian, then you are going to court anyway and therefore you might as well let the judge carry out your decisions based on the Will. However, if you don't have minor children, then your estate can and should be determined outside of court.

    A trust is the other way to avoid probate. A trust is a legal entity that can own property. The trust doesn't die when you die. Since it owns all the assets, it doesn't go through probate. You name a secondary Trustee so that the secondary Trustee can then do what is needed at the time of your death. Typically, this is done outside of court and just happens. A trust allows you do have a very specialized distribution scheme and most likely allow for asset protection for the beneficiaries. It is more costly to create but it has the most flexibility.

    You do need to speak with an attorney that knows estate planning and will give you good solid advice that is in your best interest.

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  • Should I sign this waiver of notice and entry of appearance for my father and it from my deceased grandmother

    I don't no if she left any thing for me land or money

    Howard’s Answer

    A waiver is allowing the case to proceed without you (or your father) being advised of the procedures going on in court. Many times if the case is uncontested and everyone pretty much knows what is going to happen, then everyone signs a waiver to help speed up the process and allow the attorney to work with less hours involved. When you do not sign the waiver, you will be sent notices of all court dates and there may actually have to be court dates when there would not be if all the heirs signed the waiver. Usually, the case is more expensive and more time consuming when you do not sign the waivers. However, if you want to know what is going on, don't sign the waiver.

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  • Is Medicaid eligibility based on household or individual income level in Arkansas ?

    I am 53 year old unemployed with no property/savings ==> eligible for Medicaid. Will I still be eligible if my daughter claims me as a dependent on her tax forms ? Is Medicaid eligibility based on household or individual income level ? I know that...

    Howard’s Answer

    I am not as familiar with this type of Medicaid as I am with long term care Medicaid. I would suggest you go to the local Department of Human Services office and sit down and talk to them. They are pretty good when dealing with issues like this. I do know for long term care (nursing home Medicaid) they only look at the income of the person going onto Medicaid. However, you are asking about the expansion part of it and those rules are so new, that I am not familiar with it. However, the local caseworkers are usually pretty good and should be able to help you. Good luck.

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  • My father and step-mom had a living will and trust. My father passed away and now she is getting remarried.

    What happens to the living will and trust now?

    Howard’s Answer

    You really have to see a copy of the trust. If you are a beneficiary of the trust you should be able to get a copy. The key thing you should look for is if the trust becomes irrevocable at the time of your dad's death or if it remains revocable.

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  • How do I get a copy?

    How do I get a copy of my great grandpas last will and testament? His daughters have it but they will not give or let me see it? So I wonder if they left something to me that they don't want me to get.

    Howard’s Answer

    Your suspicions are most likely correct. Not producing something is usually a sign something is up. You will need to file a probate and claim that either there is no will or that you know who has the will and the judge will then possibly require that they produce it. However, you will have to front all of the costs to open the estate which can be significant. Once the case is open, then a judge will help you get to the bottom of the situation. You will need to find an attorney that does Probate and that is willing to litigate.

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  • My mother sold her home in another state divided the money between her kids.

    How hard will it be to put her in a nursing home because of her health is going down fast. She lives with her son and his wife.

    Howard’s Answer

    As an attorney in Arkansas, I will tell you this is a problem. Gifting money always causes problems. However, since she is now living with her children, there are some exemptions to the gifting rules that may apply. Therefore, I suggest you meet with an experienced Elder Law Attorney in the state where your mom may be seeking benefits to get good advice as to the rules in that that state and see if any of the exemptions apply.

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  • While my mother sold her home divided up the money but with parkinson sundowners and Alzheimer's.

    I am wanting to know if Medicaid will help pay. For it. She is getting to the point if she falls my wife would have to call 911 because she has had one back surgery and getting ready to have another one.

    Howard’s Answer

    If your mom gave away the money, that's going to be a problem. You do need to meet with an experienced elder law attorney who can work to reduce the penalty or look for any exception that may apply so a penalty is not assessed.

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