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Cynthia L Miller

Cynthia Miller’s Answers

20 total

  • Witnesses to wills in washington state

    i thought the witness did not have to actually see the person sign their will that the in the state of washington the signor of the will only had to acknowledge to the witness that they did sign their will

    Cynthia’s Answer

    Typically, lawyers like to use what is referred to as "best practice," having the witnesses actually watch the testator sign the will, and vice versa, using two witnesses, and a notary, and preparing the witnesses' affidavit, as well. This insures that the wills are then valid in other jurisdictions, not just (in your case) WA State.

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  • Closing dads bank account

    my dad died in november 2011 and i need to close his bank account, however, the bank told me i need an "affidavit" along with the death certificate to close to the account but when i asked what kind of "affidavit" they couldnt tellme exactly what ...

    Cynthia’s Answer

    Likewise, if there will be no probate, and dad only had the bank account to close, 14-3971 may apply (Collection of Personal Property by Affidavit). You have to prepare, or have a lawyer prepare for you, an affidavit that conforms to this particular statute, stating the following:

    made by or on behalf of the successor and stating that all of the following are true:

    1. Thirty days have elapsed since the death of the decedent.

    2. Either:

    (a) An application or petition for the appointment of a personal representative is not pending and a personal representative has not been appointed in any jurisdiction and the value of all personal property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed fifty thousand dollars as valued as of the date of death.

    (b) The personal representative has been discharged or more than one year has elapsed since a closing statement has been filed and the value of all personal property in the decedent's estate, wherever located, less liens and encumbrances, does not exceed fifty thousand dollars as valued as of the date of the affidavit.

    3. The claiming successor is entitled to payment or delivery of the property.

    In the absence of a probate, this may be what the bank is referencing.

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  • My mothers boyfriend of 18 yrs is the executor, if he doesnt pay the bill who is responsible, him, or ME, her next of kin?

    My mom and "dad" were together for 18 yrs, (not my bio dad) he is listed as the executor. but he has always made bad monetary choices...i.e. buying large screen tv's and laptops, in stead of making house payments! now, if he goes by the will he ha...

    Cynthia’s Answer

    Once probate is filed, and the executor is appointed by the court, and given Letters Testamentary (legal authority to act on behalf of the estate) - or the equivalent in your jurisdiction - the executor has a fiduciary duty to carry out the business of the estate. You have no legal obligation to anyone else's creditors to pay their debts, unless you co-sign and obligate yourself, whether for a parent, a sibling, a child, or anyone else.

    Your mother's assets, and debts, at the time of her death, would be her estate's, not any other person's, until probate is settled, unless she left an estate plan that seamlessly transferred everything to an individual, such as by trust, with a pour-over will, and she had completely transferred all assets into the trust, leaving nothing to probate.

    It is possible that "dad" means that the Will names him as executor, and he is also named as sole beneficiary. You say he is listed as the executor; it sounds like you either have a copy, or access to it. You should be able to read the Will and determine who the beneficiaries are. The Will determines the beneficiaries.

    Hope this answers your question - I am sorry for your loss.

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  • If the only copy of a will we have has a no contest clause, but it was not filed does it still apply?

    the only copy of a will we have right now, has a no contest clause, but it was not filed with any city, county, or federal offices. Does that clause still apply, or does it leave it open that we can question aspects of the will?

    Cynthia’s Answer

    A contest of a will occurs in the context of a probate having been filed (with the original of the will, or a copy that is proven ligitimate) with the court in the county and state where the decedent died. Probate is necessary when assets need to be transferred to beneficiaries named in the will, and the only way to accomplish that is with authority to do so having been granted by court order for what are called Letters Testamentary, which grant authority to the executor of the estate of the decedent to sign documents on behalf of the estate, and therefore, conduct the business of the estate, that is, transferring assets, and administering the estate.

    If there is no need to file for probate of the estate, in other words, the decedent provided for transfer of assets by other means, e.g., direct designation of beneficiaries on accounts, then there would not be any contest.

    The caveat is this: most jurisdictions, if not all, have statutes that require anyone who is holding a will for safekeeping, or otherwise has a will of a decedent, to produce it, if anyone is looking for it or needs it to file probate. So, you can't withhold the copy you have if it is the only copy and the original is missing. It is unclear from the question you ask if that is the case. A will states what it states, and trying to avoid a probate is not a productive way of taking issue with what is written in a will.

    Hope this helps you; good luck.

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  • Father in law has dementia and is living in a permanent assisted living. Should we claim the rent income since.

    Question 1: Should we claim the rent income of my wife's father's house now that we are renting out the house? Question 2: Can we depreciate the house based on the fair market value when we placed the property in service as a rental. My wife...

    Cynthia’s Answer

    This is a complex tax and estate planning question that really can't be answered in full on this forum. You need to consult a CPA/tax attorney, or a CPA well versed in Estate Planning, where yo live, or one that works closely with an Estate Planning lawyer.

    That being said, a life estate is a life estate, and the father's interest doesn't terminate until his death, so, without seeing the terms of the document granting his life estate, generally, I have to say that he is the landlord and is owed the rent. It is more complicated than that, because you say you have made improvements on the property, and that may somehow offset at least some of the rents that have been paid (e.g., if a note had been created for the improvements, and the rents were paid toward the note for a period of time.)

    Likewise, cost basis is going to be a bit more complicated to figure out because of the amount of time that has passed, the life estate, the improvements you've made prior to the termination of the life estate, the rents that haven't been paid to the life estate, and how that is all ultimately handled.

    It sounds like if the rent covers expenses on the property, then the net income to father is going to be a wash, and won't affect his taxability. A CPA will be able to run a worksheet to determine that for you, as well, given his SS. Since it sounds like his assisted living may be paid by SS/Medicaid, eligibility is an issue, as well. Signing the deed to daughter was good planning on his part, since the life estate does extinguish upon his death, and there is nothing there to lien. However, any net income during his lifetime would be subject to pay back to the government, so you do need to be careful in accounting for what has happened, and how it was handled, not just with the IRS, but in case the Wisconsin state Medicaid eligibility officer comes auditing. Wisconsin won't likely take kindly to your explanation that dad moved into assisted living, therefore, we took the rental for ourselves. Sorry for the bad news there, but better now than when audited. Good luck and I'm sure you'll get it sorted out.

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  • Does the attorney need to sign the will?

    I hired an attorney to draft my will. It is completed and seems fine. He is going out of town and can't be present for the signing in front of a notary. He says that an attorney doesn't need to sign a will in order for it to be valid in Pennsylvan...

    Cynthia’s Answer

    • Selected as best answer

    Typically, the drafting lawyer does not sign the will. The execution requirements of two independent witnesses, and a notary, insure that your will is valid in all jurisdictions. Many people draft their own wills, without the assistance of a lawyer (I'm not advocating for this), and end up with properly executed wills. Your Pennsylvania lawyer, whom you paid for the advice he gave you, should know Pennsylvania law. You should be fine to go ahead with the execution of your will. If you have further doubt, call another law office, and just ask the question, to be sure.

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  • What happens to property if not specified in a will?

    were told we would inheriet the house we currently live in but the will says to divide all equally among all. what are our legal rights?

    Cynthia’s Answer

    Unfortunately for you, what you were told is trumped by what the Will states. Unless there is a specific devise of the real property to you in the Will, then it is captured in the residue clause, and is divided as stated, you say equally amoung all the beneficiaries stated in the Will. You should seek the advice of a lawyer in your jurisdiction to determine if you have any valid contest to the probate of the will, or what other theory you might pursue a claim of the real property under NC law. Good luck to you...

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  • Do I need a power of attorney?

    My father is on life support in the hospital. I live 3 hours away, in another state. His brother, who I believe my father would want to make decisions for him, asked me to grant him limited power of attorney because I am my father's next of kin (o...

    Cynthia’s Answer

    I am sorry to hear about your father's situation, and yours. You need to consult with a GA lawyer immediately. First of all, you don't mention whether your father, already on life-support, left you with any health care power of attorney on his behalf. Your father would have been the one, generally speaking, to have done that, before his incapacity. Georgia's laws regarding your ability now to somehow transfer limited decision-making ability to another sibling comes into question. If you already have the ability to make decisions on behalf of your father - you say you are his next of kin - then no, tranferring your ability, any of it, to another person, is not necessary. This is probably not something you should be executing on a form, without advice of counsel, so that you know exactly what you are starting with, and what you are ending up with, since you are in the middle of a terrible situation at present.

    I hope this helps, and I hope you are able to find a lawyer in your area to consult with.

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  • Ownership of invention as an employee of a large corporation.

    I process claims for a large corporation. I have an idea for a service that would benefit all such companies, including mine. The more companies involved, the more everyone would benefit. My only hang up is, when I was hired, I agreed to comply...

    Cynthia’s Answer

    This is a very interesting question: Generally speaking, the Employee Handbook, and it sounds like you were provided with a copy, does apply to all employees, unless specifically stated otherwise. You do not provide information regarding whether you signed a specific employment contract, or just the company's general employment application, employment documentation, general work agreement, and so on, when you were hired, along with the acknowledgement of the Employee Handbook. The terms of your specific employment may drive whether or not you have any rights to your idea. Assuming you did not sign a specific employment contract pertaining to your claims work (which could be good or bad, depending on its terms) then the generic Employee Handbook and its "scope of employment" wide net is what you are dealing with.

    Even though you say you are not an inventor or Engineer, you are now! Your idea sounds like it is related to what you do for the company - process claims. You say you have an idea "for a service that would benefit all such companies, including [yours]." You've created a unique domain name and purchased (registered) it. There is case law on point whereby ultimately the employer had to pay the employee the price of registration for the domain name, but, yes, the short answer to your question is, without further facts in your favor, you agreed at the outset to exactly what the Employee Handbook states - the Employer owns everything you think of or "conceive" during the scope of your employment, i.e., remotely related to your employment.

    The purpose of the wide net in the Handbook is to do exactly what this does in this scenario, it benefits the company when smart people like you, who work for the company, come up with good ideas.

    All is not lost; seek counsel (outside and away from your employer) and negotiate with your employer. It wants the benefit of the idea, most likely, and will probably, if the the idea is actually a good one, and worth pursuing, work with you, allowing you some gain, as long as it gains more. It's worth a try. It's all in the presentation and negotiation. Don't think of it as a FIGHT; think of it as a WIN-WIN. All the best to you - persistence pays dividends!

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  • Can money be added to an irrevocable living trust after i die?

    i set up an irrevocable trust for a friend of mine. i did so to stop my family trying to claim it after i die. i am waiting for some money to come to me which i then want to put into the irrevocable trust. i am very sick, if the money arrives a...

    Cynthia’s Answer

    • Selected as best answer

    Illness is difficult, under the best of circumstances; I am sorry to hear you are dealing with this, too.

    The irrevocability of the trust simply means that it is irrevocable from the date of it's creation, even while you are alive (I am not going to go into the exceptions to this general rule). The terms of the trust instrument determine how it is funded, both now and in the future. Assuming that it can be funded into the future, you can, and should have already, create(d) what is called a pour-over will, so that any assets you own that you want placed in the trust upon your death, outside of what you have put into that trust during your lifetime (which you no longer own; the trust owns those assets), pour over into the trust upon your death.

    I would hope that a lawyer drafted the trust for you, and drafted the appropriate language in a will for you at the same time, and both are now in place so that you do not have to worry any further about it. If not, then you should seek further counsel immediately and have your will drafted, or reviewed and revised, as necessary, to insure that your wishes are fulfilled upon death.

    Also, depending on where the money you speak of is coming from, perhaps it is possible for you to request that when the check is issued, whenever that is, that it be issued not to you, but in the name of the trust, and mailed to the trustee, so that it goes directly into the trust and the trust's funding won't depend on further action on your part. That may give you peace of mind. If that is not possible for some reason, and it may not be, depending on the source, any tax implications, and so forth (and you may need further advice about that, as well) then, and in any event, you should still make sure you have a proper will in place, since it sounds like you have great concern about making sure that the trust is properly funded.

    Please note, and as stated above, this does not take into account any tax implications of your lifetime gift funding of the irrevocable trust, if you effectuate that transfer, and you don't mention whether you sought any tax planning advice, or the amount of the transfer.

    I wish you the best in all regards, and hopefully your illness will improve and you will live a long time yet. All the best to you.

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