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Dwight Edward Tompkins

Dwight Tompkins’s Answers

48 total

  • What is the difference between custody and guardianship in VA?

    My company is now requiring proof of eligibility for health insurance. We were awarded full custody of our grand-daughter. My company is saying she is ineligible for coverage because the document does not say guardianship.

    Dwight’s Answer

    This is the same in California where I practice. Custody and legal guardianship are different. I recently had a case where the mother who had legal custody over the 15 year old daughter died. Her father then took custody over his daughter, but to make a claim on the life insurance policy of the mother, he had to be appointed the guardian in order to assert her legal rights.

    I advise you to consult with a guardianship attorney in Virginia.

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  • What happens if a beneficiary dies before the willmaker?

    My husband was the beneficiary of his mother's will. He died a couple of years ago and the will was never changed. Now his mother his is not of sound mind to change her will. After my husband's death, she expressed that she wanted to change her...

    Dwight’s Answer

    Since your mother-in-law no longer has capacity to amend her will, the provisions of her last will are controlling.

    It is not clear in your facts whether your husband was the sole beneficiary, or one of the beneficiaries along with his siblings.

    It is also not clear what the will provides if a beneficiary predeceases the testator (your mother-in-law).

    If you can obtain a copy of the will, I would have it reviewed by a probate attorney in Texas to (a) get an opinion about whether your daughter can substitute for her father in the will, or bring an omitted heir claim, or other claim in the future probate, and (b) have an attorney ready to file the necessary claim when the time comes.

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  • How can we protect ourselves from any unauthorized changes of a living trust?

    We had the living trust done by ourselves using a software and got it notarized. But the notarization is really only for the signatures from my husband and I on ONE SINGLE page. The rest of the living trust requires no signature and no notarizatio...

    Dwight’s Answer

    One of the reasons to have a living trust prepared by an attorney, is that the attorney will know you, have notes in his or her file as to your specific wishes and concerns, and he or she will have a copy of the trust in the file. The attorney then becomes a potential witness in court to authenticate the correct trust. Clients may also have the attorney keep the original of the trust in his or her custody if there is a concern about someone in the family tampering with the original trust.

    Having said that, since you did a self-prepared trust; I suggest that you give the original trust document and other estate planning documents to the successor trustee to keep in his or her custody. It is not by mistake that trusts are called "trusts". If you trust your successor trustee to settle your affairs and estate without court supervision, then you should be able to trust them to hold on to your original trust document. Also, upon both of your deaths, the successor trustee would have the original trust to carry out its instructions.

    When you decide to amend the trust in the future, that would be an ideal time to consider retaining an estate planning attorney to handle the amendment, and then open a file with copies of all of the relevant documents.

    Finally, if there is someone you specifically fear that would attempt to alter your estate plan, you should take steps to make sure that they do not have access to any copies of the trust in order to create new pages altering your estate plan.

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  • Dad bought house in Riverside, CA. Wants to add me & wife to title as Joint Tenants for estate planning purposes. What effect?

    He has a mortgage and just wants to add us as joint tenants for the Survivorship rights. Is this a good idea? Any downside? Is it possible that we could suffer ill effects from County Property tax or even worse, Federal Gift Tax (as some websites...

    Dwight’s Answer

    A living trust is a much better way to pass on property to loved ones, because it is a true estate plan. Joint tenancy with right of survivorship is a way to hold title which has a successorship built into it; and that's why some people try to use it.

    You obviously have discovered the gift tax problem. I won't go into all of the other problems of joint tenancy, but I will highlight just a couple of them. One of the main problems is that it fails to provide for contingent beneficiaries. For example, if you were to predecease your father, and you have children who your father wants to receive your share of the property, joint tenancy will not allow this to occur. If you were to predecease your father, and then he passed away, his wife would receive 100% ownership of the property and your children would receive nothing.

    Another problem is that when someone adds others to title as joint tenants, it exposes the property to the creditors of all of the other joint tenants.

    My video "The Problems with Joint Tenancy" is available on YouTube by visiting the link below to my YouTube channel, FamilyTrusts.

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  • My step mother is the executor of my father's estate.

    She wants to apprortion the administration expense based on the value of the properties that were bequeathed, meaning that each party would be paying part of the legal fees and the transfer tax on each party's property inherited. Is this a reasona...

    Dwight’s Answer

    A good starting point would be to look at the will to see if it states any provision concerning who pays the administration expenses. Were you asked to agree? If so, you may want to refuse if the proportional cost of the administration falls more heavily on you.

    Your proposition is not unreasonable. In California where I practice, the cost of administration is paid by the estate. I'm not sure about New York. You may wish to talk to a NY probate attorney.

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  • My mom wants my daughter to be added to her will,does the entire will need to be redone or just a revision?

    And doesn't the will need to specifically say % or amount of money and/or property as well? For example my mom has 4 acres of land, shouldn't the will state how much of it will go to my daughter? Also for $500K, shouldn't will indicate % or speci...

    Dwight’s Answer

    There are two ways to accomplish a revision to the will; one way is to execute a new will which revokes the prior will, and the other is to execute a codicil which is a separate document which amends specific sections of the will without revoking the entire will.

    If there are multiple beneficiaries named in the will, there should be a breakdown by percentages, and/or specific gifts of assets for each beneficiary.

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  • A few assets not in trust

    I'm the executor of my deceased brother's will. If everything is in his trust except for a few small bank accounts. Will those bank accounts need to go through probate? Do I need to formally record my brother's will?

    Dwight’s Answer

    If those bank accounts total less than $100,000, then you will not need to open a probate to settle those accounts.

    California has a small estate administration procedure which will allow you to settle those accounts. You will need a certified copy of his death certificate, and you will need to execute an affidavit under California Probate Code Sec. 13100 with the death certificate attached to it. The affidavit must be notarized; and you cannot present the affidavit to the bank until 40 days have passed since the date of your brother's passing away.

    Many banks have a form of the Probate Code Sec. 13100 that they will provide to you; inquire with the bank to find out if they have such a form.

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  • My father told me he made a new will in 202 the exector rea when fromm 1999 and said there was no other will how do i find out

    when my father passed left us nothing left step children evrything how do i find out if he had life insurance or bank accounts the exector doesnt noi about or if i think the execetor is not tellling me the truth

    Dwight’s Answer

    You should conduct as much as an investigation on your own as you can. Begin by contacting your father's attorney and request a copy of all wills and codicils of your father. If you have access to his home, look for the newer will, look for business cards of attorneys, accountants, or other professionals your father may have used. Your father may have made the 1999 will with one lawyer, but used someone else in 2002.

    If a newer will existed, and the executor or someone else destroyed it, it will be very difficult to prove the existence of the newer will.

    I am not familiar with Massachusetts law, but many states have an "omitted heir" statute, in which an heir, such as a child, can challenge a will in probate court and demand to be treated as an heir in the estate. You should look for a MA attorney who handles contested probate cases, and ask for an initial consultation to see what your rights are and the likelihood of winning on those asserted rights.

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  • When having a senior declared incompetent in tennessee, do the letters from the doctors expire after 30 days?

    We have 2 letters from doctors as evidence that my Grandfather is incompetent. They are more than 30 days old they are appox. 6 months old.

    Dwight’s Answer

    I am not sure whether there is any Tennessee statutory law that sets a time limit on such a letter. The general rule would be that there is no expiration on such a letter, however, the letter may become legally without effect if your grandfather regained capacity, and there were new letters of the doctors stating that fact. The new letters would have the effect of nullifying the prior letters. But until he regains capacity to act for himself, the letters remain a true statement of fact.

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  • When funding a living trust in FL, is it better to use quitclaim or warranty deed?

    This is for an investment and a homestead property. Also is the grantee the trustee or the trust itself? I have read some places that say either or. Also upon the sale of the properties is the cash available for my beneficiaries immediately or on...

    Dwight’s Answer

    • Selected as best answer

    Both deeds will fund the trust, but a Warranty Deed will make the chain of title stronger, which may be helpful in a later sale. The grantee of trust funding deed is the trust, but it is a general rule that the title also identify the trustee as well, and the date of the trust. For example, Joe Smith, trustee of the Smith Family Trust dated January 1, 2011. When the beneficiaries receive any money or assets depends on how the trust is written. Typically, the ultimate beneficiaries do not receive any benefit until the trustor has passed away.

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