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Thomas Stindt’s Answers

69 total

  • Who is responsible for a person's credit card debts if he/she suddenly dies

    IF A person has credit cards and suddenly dies, Who is responsible for the balance on the credit card bills? He is the only holder of the credit card.

    Thomas’s Answer

    The simplistic answer is that the card-holder's estate is obligated, and nobody who is a beneficiary will "inherit" the debt, it just serves to reduce or extinguish estate assets.

    There are exceptions, however, and this depends largely upon two things: The marital property system of the state of decedent's residence, and the characterization of the debt. In a community property state such as California, for example, even though the card is in the decedent's name alone, if he was married at the time the debt was incurred and at time of death, and the debt on the card was for community necessities, rather than for something clearly not a community expenditure, then an apportionment can take place. The community property of the spouses is responsible for community debt, no matter which spouse incurred it. Each spouse is the agent of the marital partnership, insofar as incurring debts for necessities of life, i.e., for the benefit of the community of the two of them. Generally banks won't want to dig into the nature of the debt and chase a surviving spouse for her share of it, but if it is a significant amount and she appears worth chasing, sometimes this will happen. Her defense will be to refute the notion that the balance represents expenditures for the community.

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    Thomas’s Answer

    Your concern is justified. Most states have spousal protection provisons in their probate law, which will typically give the new spouse who is not mentioned in the pre-existing Will a statutory share of the decedent's estate. That share or part will vary, depending upon the characterization of the decedent's property, the marital property system of the jurisdiction involved, and the intestate distribution laws of the jurisdiction involved.

    Your father should review and update his Will with an estate planning attorney in his jurisdiction.

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  • If I am named in a will in probate can I get a copy of the will?

    My son and I have received a notice that we are named in my great Aunt's will. Is there any way to get a copy of the will?

    Thomas’s Answer

    Since you may go to the probate court clerk's office and buy a copy of the petition for probate, which should include a copy of the Will, there should be no reason why the estate's attorney wouldn't send you a copy. You may wish to send a polite request letter and offer to pay the costs of copying, and send them a return-addressed, stamped envelope. Always be cautious before writing to the executor or the estate attorney; some Wills have very broad definitions of acts of interference with administration in their No Contest clauses. I think I would go read the Will at the courthouse.

    The fact that you are "mentioned" by the way, doesn't mean you are a beneficiary. You were maybe mentioned as a contingent remainderman, meaning only to take if certain other life events took place, such as the death of a beneficiary of senior status prior to your great Aunt's death. Sometimes the estate attorney won't want to spend time and expense copying things for a remote contingent beneficiary whose interest didn't vest.

    The best thing for you to do would be to go to the probate court and read the Will in the case file. Then you will know, and you could make a copy there if you wanted to.

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  • TN inheritance/probate question. My mother passed away recently and my sisters and I disagree on how to proceed.

    Home may have 15k or 20k in equity. credit cards less than 600 total. No other assets/debts. 2 of my sisters are worried that if we pursue ownership of the home, that we will be "liable" for the mortgage, and might affect our credit. They dont t...

    Thomas’s Answer

    This is probably not as complicated as you and your sisters seem to be making it. Most states have summary, abbreviated probate procedures for small estates; even though an interest in real estate is involved, you very likely will find an abbreviated way to address the matter. This might be a short form type of probate, you really need to talk with a probate attorney in the county where the estate would be settled.

    As to "inheriting the debt" that wouldn't happen. The property would be subject to the debt, and if there were no anti-deficiency judgment protection, possibly other estate assets of your mother would be liable, if the lender proceeded in a way to preserve the right to collect a deficiency. Your TN lawyer can explain that to you under your local law.

    If for some reasons your siblings don't want anything to do with the estate, they may still be able to file a Qualified Disclaimer to renounce any interest. Time limits apply, at least for federal tax law purposes, so your local attorney will need to explain that to you.

    I don't think your credit would be affected by this, so long as you rent and deal with the property only as Executors of your mother's estate.

    You may find that you could open an estate, rent the house, then sell it, then split the net proceeds, and it may be worth your while to do so. Especially so if your other siblings disclaim their interests, which would go to augment yours.

    Your local attorney would be paid from the estate, so you shouldn't have to front any retainer deposit.

    Good luck with this.

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  • New Jersey Estate Law

    Is it legal for one co-executor to close down a checking/savings Estate account and start a new one with their name on the account only.

    Thomas’s Answer

    As a general rule, when there are two co-executors appointed, actions taken on behalf of the estate need to be taken by them jointly. The Letters issued to the two co-executors typically recite that they are the personal representatives acting together, and not either one of them acting alone. So when a bank account is opened, the account should be opened in the name of the duly authorized personal representatives, the two co-executors to whom Letters of Administration were issued.

    As to "closing" an account, it may be that the two co-executors when they opened it, made checks payable for this particular account by either of them, for their administrative convenience. If they did so and the bank set it up that way, then one of them could draw down the account to zero by writing a check to empty the account. That would effectively close it or the bank might then close it after it had sat empty for a period of time.

    The fact that there are two co-executors doesn't absolve either of them of co-responsibilities to the estate and duties to cooperate with one-another. If one of the two of them is the custodial and more active co-executor, he or she will be accountable to the other for disbursements and other actions.

    If you believe one of the co-executors has overreached his office, you should review this with a local New Jersey probate lawyer, so that you may take appropriate action on a timely basis.

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  • Rent on parents home while parent is living in assisted living.

    My mother is in assisted living. I live in her home, my sister is her POA. My sister is now asking that I pay rent when the agreement with my Mom is that I buy the home at her death from my sisters. Can she do this? What should I do?

    Thomas’s Answer

    Start with a basic understanding that you, your sisters, and in fact all children, need to acknowledge:
    Your parent's property is not yours UNTIL she dies. Prior to that time, it is hers, and whoever is charged with the duty to look after it for her, in this case, the agent under a power of attorney, has the responsibility of protecting the property and making it productive for the principal, your mother. That means making sure the property is insured, maintained, the grass cut, and rented out if it is in rentable condition, unless there is an expectation that your mother will return to her home soon.

    So it probably isn't unreasonable to request a fair rental amount from you. However, you should discuss with your sister the fact that you are providing security for the property by living there, which should be considered in determining the rent. Also, I assume you are watering the plants and paying the water bill, which should also be factored into the rent.

    If there is such an agreement as you refer to regarding your right to "buy" the home when your mother passes, this should be memorialized in writing, signed by your mother, and backed-up by an instruction to her Executor in her Will, preferably, stating that the property is subject to an option given you to buy the property. Don't leave this open, people's memories can change once Mom has passed away.

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  • If I place a living trust as the beneficiary to my life ins. policy instead of my husband, what would the tax implications be?

    I am interested in naming my living trust as the beneficiary to my life ins. policy instead of my husband. I would like to be able to say what happens with the money. For example, I would like the money to be invested (more specifically defined ...

    Thomas’s Answer

    Part of the estate planning process is the coordination of beneficiary designations with the disposition intended by the estate plan. If you make your husband the beneficiary of the typical life insurance policy, he will receive the policy proceeds outright, and can invest them as he chooses, or he could buy a boat.
    Your wishes as he understood them may or may not be followed.
    A marital deduction is available for an outright gift to your spouse in the above illustration, so the policy proceeds are in your taxable estate for federal estate tax purposes, but qualify for a marital deduction because they pass to a surviving spouse.
    If you make your inter vivos trust the beneficiary, the proceeds again are taxably included, but then when you die, the proceeds go through your trust's subshare formulation language, assuming you have more than a simple family pot or house trust, and are divided into the subshares of the trust. The parts which go into a marital deduction trust will still qualify for a marital deduction, yet remain if drafted correctly under administration, and your successor trustee would control investment management. Husband would have income for life, as you wish, then a vested remainder could go to your son. This is a QTIP Marital Deduction Trust. You need an estate planning attorney to do the drafting. Use of the wrong language can disqualify this trust for the QTIP Election for marital deduction purposes.

    By the way, you typically cannot designate what is to happen to the money in the life insurance policy. You can make pay-on-death designations, with alternate choices, or split the ownership, but the insurance company isn't going to be your trustee and hold the proceeds after payment is triggered by your death, and invest it as you would prefer.

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  • Do my children have a right o have a key to thier deceased fathers house which is in trust to them

    we live in new jersey

    Thomas’s Answer

    It sounds like your children are the beneficiaries of this trust. As such, and if they are non-discretionary current income beneficiaries, they would have beneficial interests in DNI (Distributable Net Income) from the trust estate, after trustee's fees and other administration expenses. So they would have a right to Accountings and their shares of rent, or interest on savings, other earnings from the trust estate. Unless they are living in the house for some reason, they don't need a key. The trustee and its property management agent would have the key, and any tenant, of course. If the house is sitting empty (and why?) they still don't need a key, only the trustee and its maintenance or selling or management agent needs a key.

    Your question doesn't provide enough information to tell you much more about this. Are you the trustee? Is the house specifically gifted at some future time to your children? Or would it be part of the residuary trust, to be distributed later?

    Sometimes a family home may be the subject of a special bequest, such as "I give my house in Long Valley, in equal shares, to those of my children John, Bill and Linda, who are living when my wife Susan dies, or to my issue, by right of representation, if all of my said children are then deceased." In that event, the house should probably be kept, as it is the subject of a specific bequest. But if the gift is "I give the residue of my estate existing upon the death of my wife, Susan, to those of my children, John, Bill and Linda, who survive my said wife, in equal shares, or to my issue, by right of representation, if all of my said children are then deceased" then the gift is residuary. The house might better be sold in this example, depending upon timing and the market, and reinvested in a balanced portfolio.

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  • My father recently died. He left a will. He has much more debt than assets. Does his will need to go through probate?

    I am the named executor who is charged with paying debt and then distributing assets among the adult children. The assets are less than the debt. The assets consist of a small amount of cash in a checking account which I control as power of atto...

    Thomas’s Answer

    You may want to probate the Will anyway, since you are the Executor. Estate administration expenses, including executor's fees, are a priority item and will prevail over creditors' claims. You may even have an expeditious, abbreviated probate process in your state for small estates, simplifying the usual probate administration process. Probate will also cut-off claims and generally the creditors will know to stop calling or writing after they have received the notice of action on their creditor's claim. That way you won't be getting letters addressed to your father from creditors for the next three years.

    Your status as agent under the power of attorney ended with your father's demise. Presumably there are no checking account records revealing gratuitous transfers to you while Dad was living, which his creditors might now seek to challenge as fraudulent assignments in derrogation of their rights as creditors. I suggest you review that subject with a local probate attorney near you.

    Good luck with it.

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  • Estate Planning / executor

    My brother is the executor of my Mothers will .She died a year ago and the house was sold 6 months ago .My brother has not divided the money with me as yet and doesn't look as if he is going to.What is my next option? I took care of my Mother and ...

    Thomas’s Answer

    If a formal probate estate was opened for your mother, then your brother as Executor is charged with making distribution under her Will as admitted to probate. It may be that there are creditors' claims, tax returns to be filed, other matters to be attended to before the estate is ready for distribution to the beneficiaries.

    Does the Will make you and your brother residuary beneficiaries? Your next step is to take the copy of the Will and whatever file you have from what your brother has done as Executor, to a probate lawyer in the county where the estate is pending. That person will be able to contact the attorney for the personal representative and seek a status report, file a Request for Special Notice, and take appropriate steps to monitor progress toward closing of the estate.

    As to caring for your parents, was there an agreement for you to be paid for that service? If so, you should consider filing a creditor's claim based on that agreement. The same attorney can help you with that task.

    Questions like this are fact-specific situations. You need for someone familiar with probate practice and the local rules in the county concerned, to review the case file and advise you.

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