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Judith May Copeland

Judith Copeland’s Answers

24 total

  • Can an executor renovate a house and then sell it with the estate money? Bills are not being paid etc...

    uncle is mishandling the funds of the estate but in my mothers will it states if you contest it then you will receive nothing and i dont know if i should file a litigation or not?

    Judith’s Answer

    The probate laws are different in each state so you should get advice from an attorney in
    Georgia. Many county bar asssociations have referral services that provide a free initial consultation so you would be well advised to check that out.

    As a general rule the executor has the "power" to use estate funds in a manner that is prudent and in the best interests of the estate and those interested in the estate. A court would look at whether the actions of the executor have increased the money to the estate or if it hasn't, whether the executor had a reasonable plan. A court would also want to know that the executor did not personally benefit from his actions, such as paying himself to do the work.

    Generally an heir can challenge actions by an executor without running afoul of the no contest clause.

    Get some good advice from a GA lawyer. Good luck to you.

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  • More on Living Trusts and AP.

    Doesn't the Living Trust provide some asset protection in the sense that it provides the anonymity of assets held within it? If the Living Trust is set up in a name different than your own, wouldn't it be difficult and tedious for a plaintiff or ...

    Judith’s Answer

    Think of it this way: Everyone can have a living trust for around a thousand dollars (more or less). If, for this money, everyone could shield their assets from creditors. Our economy would collapse in short order. So, no, a living trust cannot shield you from your creditors.

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  • Your half of a joint bank account to a living trust

    I heard that a joint bank account just goes to the other person when I die. I have an existing trust created years ago before I had opened this joint account. Is it recommended to put your half of a joint bank account into the trust, or just ...

    Judith’s Answer

    Any asset held in joint tenancy will pass to the other owner on the death of the first owners. Your trust (or will) could say "everything to John Doe" but if Jane Smith is the joint tenant with you on a bank account (or stock or real property)j it will go to Jane on your death.

    This is very similar to life insurance. You have a contract with a company to pay X dollars on your death to a certain person, say, Jane Smith. She will get that money even if your will or trust leaves everything to someone else.

    If you put your "half" of a joint tenancy account in your trust, all you have done is move a certain number of dollars from a joint account to your trust. On your death, Jane Smith will get less but she'll still get the account.

    You need to determine whose money is in the account. If it's yours, you need to decide if you want it to pass that way or if you want it to pass through your trust. The drawback of joint tenancy is that if the other owner dies before you so that the account is now all yours, it no longer has a joint tenant on it. If you die without terminating the account and putting it into your trust you may trigger a probate.

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  • I do not understand a will, living will, trust, etc. What exactly do I need?

    I purchased my home and 21 acres before I married 7 years ago. Everything is still in my name alone. I am getting a divorce and do not know how to do estate planning. What do I need...a will, a living will, a trust, or whatever else? I purchas...

    Judith’s Answer

    Generally you want a living trust for the purpose of avoiding probate. It is very important to deed your real property (home and acreage) into your name as trustee of your trust. You also want a pourover will which is a companion to the trust. The will basically says "if there is an asset that should have been in the trust please add it to the trust."

    The "living will" is like an ineffective health care directive. With the living will you state you do not want your life artificially prolonged. With the directive you designate someone to make health care decisions for you in the event you are incapacitated. Be sure you do a "health care directive", not the living will.

    If available to you it is also a good idea to do a general durable power of attorney to allow someone to act on our behalf in the event of incapacity. Your successor trustee can handle the assets in the trust but there are always a few items outside the trust so the additional power of attorney is a good idea.

    In summary (and as a general rule) you want four documents (living trust, pourover will, health care directive and general durable power of attorney) plus deeds to transfer your eal property into the trust.

    Now, I know you don't want to hear this but as a single mother you cannot afford to not go to an attorney. At the very least pay an attorney to look at the documents you prepare from the kit. With children and an ex-husband you must be responsible to ensure that this plan is done correctly.

    Good luck to you.

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  • What is the best way to transfer a home to avoid the possibility of a medicaid lien. Into or trust or an outright transfer?

    Best way to transfer your home into a trust to avoid the possiblity of a medicaid lien. Should you put it into a trust or just transfer it to someone else.

    Judith’s Answer

    A home is exempt under Medicaid because public policy is to preserve it in event the owner is able to return home. If the owner gives the house away, outright, it would lose it's exemption since, obviously, the owner does not intend to return home. So, the best way to give it away is to transfer a remainder interest with the owner keeping a "life estate." This means that the owner retains the rights of ownership during his or her lifetime but has no interest at the moment of death. Thus, there is no property for the state Medicaid agency to place a lien against.

    This answer assumes the owner of the home is already on Medicaid. If the owner is not yet on Medicaid the owner should consider the following before gifting it : An outright transfer (to trust or otherwise) will trigger the 5 year gift penalty. The owner can avoid that by giving it away but keeping a right to live in it (like the life estate). As an alternative, the owner needn't give it away before applying for Medicaid but rather can execute a power of attorney giving a trusted agent the power to transfer the home (or a remainder interest in it) at a later time.

    Please keep in mind that giving someone a home has tax consequences, mostly gift tax and/or capital gains. It should NOT be done without legal advice. There are many factors to consider. Also, remember that giving a house away means it is gone. The owner can believe his or her trusted "child" "sister" "best friend" etc. will be honorable and reliable, but many lawyers will tell you that money changes people. I have had more than a few broken hearted parents in my office telling me of their shock at what was done by someone they trusted.

    Be very careful and very smart about any such transfer. Get good legal advice.

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  • My step dad and my mother ,signed their home over to my older brother just in case something happened to them.

    The agreement was that it was still their house . . However as soon as my mother passed away my brother kicked my step dad out . Both my mother and step father were ill when they signed over the house..Is there a way my step father can get his hou...

    Judith’s Answer

    Wow, death often brings out the worst in people. This is a miserable situation which raises an important point that people need to pay attention to: Family must conduct their business in a business like manner. Consult and use a lawyer and leave nothing to oral agreements or understandings, and don't do things "for tax savings" purposes that don't reflect reality.

    That being said, ordinarily, any agreement concerning real property must be in writing to be enforceable. Each state will have a few exceptions to this so your step father needs to consult with a probate or real estate attorney to determine what, if any, rights he has. It's possible that your brother has breached some other promise that can be enforced.

    I feel badly for your father. Good luck.

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  • My father passed away lefy will. had ira cds life ins and stocks. how soon do we need to cash them in and can we leave things

    can things be left alone and cashed in over time

    Judith’s Answer

    Actually there is no legal time limit to collect the assets with beneficiaries on them (the ira and life insurance) though common sense tells us not to wait too long. If you collect them within a month or so you'll be fine.

    I assume the stocks have no co owner or beneficiary. In that event determine if the value is more or less than the small estate limit in your state. In California it's $100,000. If the amount is over, probate will be necessary and the will should be filled with the court along with a petition asking that the Will be admitted to probate. In most states the assistance of an attorney is needed as probate is complicated. If the amount is under the small estate limit, there will be a procedure to collect the assets without probate. All beneficiaries under the will need to be involved.

    Good luck.

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  • My father passed away 4 yrs ago i was told at that time there was no will. Now his wife is dying andit comes out there was one

    I was told there was no will from my father and none was posted in any court house. So everything went to the surviving spouse. Now it comes out there is one and the stepmother is dying so she does a will and out of the kindness of her heart she l...

    Judith’s Answer

    Your rights will depend on the terms of the will your father made and the title to the assets he owned.

    Obviously, if the will left everything to his wife, you have no rights.

    If the Will left assets to you that were held in joint tenancy w th his wife, you have no rights. Joint tenancy means ownership passes to the surviving co owner. Similarly, if his assets were in a trust with his wife, the will would not apply.

    Let's suppose the Will was valid (meaning the orignal was still in existence and it was properly done) but it left assets to you that he did not own when he died. For example, he leaves to you "his house at 123 A Street" but he had sold the house before his death. It is a matter of will interpretation and State law as to whether you get the sale proceeds.

    My suspicion is that if there were assets in your father's name alone your stepmother would not have been able to get to them unless she perpetrated a fraud of some kind. If there is a sizeable amount of money involved, get a referral to an attorney in the swate where your father died and see if the attorneyt can find out what happened. It may involve filing suit against her and then subpoening bank and other records to determine if the assets passed to her legally. If you do this and she was entitled to her husband's assets, the odds are good she will revoke the "something" she is leaving to you.

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  • My stepmother lost my fathers will, can locate one from over 20 years ago. drew up revocable trust 4 years ago. which is binding

    the will is from over 20 years ago, and is completely different that the trust which was set up 3 years ago

    Judith’s Answer

    This question is hard to answer because the facts are a bit unclear. I'll approach from a few directions.

    Your father is alive, his old will was lost but he did a trust four years ago: If that is true, the trust will control the disposition of all assets held in the name of the trust. Assets not in the name of the trust will pass under the old Will if it is still valid. Changes in marriages and such things can invalidate portions of wills. It is unusual, by the way, to do a trust without doing a new (pourover) will with it. If father is still able, he should do a will that is compatible with his trust.

    Your father died after the trust was made: Answer is the same as above.

    Your father died before the trust was made and the trust was made by your stepmother: This means your stepmother inherited, the assets are hers and pass under her will or trust.

    I hope this helps. If I've misinterpreted your facts please feel free to resubmit the question.

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  • With only multiple bank/ira accounts, but 8 children dividing all moneys according to the will, is probate still required?

    There is no property involved. Can the executor have all accounts transferred upon death to them and divide the money thereafter?

    Judith’s Answer

    Most IRA accounts name a beneficiary and the company managing the accounts will arrange to pass the accounts to the named beneficiaries. No probate is needed.

    Bank accounts that are solely in the name of the person who died will probably have to be probated. Some estates have a procedure for small estates that avoids probate. In California, for example, if the accounts total less than $100,000 the eight children could collect them using a small estate affidavit. Ask an estate planning or probate attorney in your state if the accounts can be collected without probate. Most bar associations have referral panels of attorneys who will consult with you for a short time for either free or a small amount.

    In summary, the necessity for probate is the amount involved, not the type of assets, and only looks at assets that have no beneficiary and are in the name of the decedent alone.

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