Skip to main content
Richard H. Foley, Jr.

Richard Foley, Jr.’s Answers

20 total

  • How do I know if I need my parents will to go through probate?

    My mother passed away last year. My father just passed away 2 weeks ago. When both parents passed on everything was left to me and my four brothers in the will. My father had no life insurance. The only assets he had was his vehicle,2300 dollars c...

    Richard’s Answer

    This question will depend upon what your parents own and how the property is titled. If everything they own including, bank accounts, home, automobiles, investment accounts, etc. are all jointly titled with rights of survivorship, there will be no probate on the first death. Everything will simply pass to the co-owner. Moreover, if they have IRAs, life insurance or annuities, those assets will pass to the named beneficiary outside of the probate process. However, on the second death, whatever property remains in the name of the surviving spouse will pass through probate in the state in which they were residing at the time of death. If there is real estate in another state, a probate may also be required in that state. Probate doesn't have to be a nightmare, so long as the estate is properly organized and planned. If your parents want to avoid probate, the best solution is for them to engage a qualified estate planning lawyer to help them prepare a revocable living trust to hold their assets while they are alive. The trust will allow successor trustees to take control and distribute trust assets after death.

    See question 
  • Divorce/Living Trust

    My mom added me to the deed to her property. I am now in the process of filing for divorce. How do i protect our property from my wife?

    Richard’s Answer

    Oops. Putting a child's name on property as a means of doing estate planning is a poor choice. It may seem like an easy enough thing to do without the help of a lawyer. But we see people do it all the time because it avoids incurring the expense of a lawyer.

    I recommend that you talk with a California divorce lawyer to help sort this out. This is a question of California law. It will be important to look at the precise wording on the deed that conveyed your mother's property into your name. Did you take title by joint tenancy, tenancy in common or in some other capacity.

    Your question suggests that a living trust might be involved here. If your mother's property is actually titled in the name of her living trust and you are merely a co-trustee of your mother's trust, then this property should not get caught up in your divorce. If it is in trust, and you are merely a trustee, the property does not belong to you yet and should not be considered part of your marital estate.

    Talk to your divorce lawyer about this.

    See question 
  • Trustee Will Not Settle Estate Will Give No Accounting Or Reasons

    House was sold in 2011,When asked when distributions will happen trustee states "Just a bit longer".Gives no info.This has been since summer of 2010.Arizona.

    Richard’s Answer

    Trustees have a duty to keep beneficiaries informed and provide an accounting. If the trustees are not doing that, I would suggest that you contact a trust lawyer in Arizona to force the issue. There is always a risk that if misfeasance by the trustees is suspected, that the horse will be out of the barn by the time you find out about it. By then it may be too late.

    See question 
  • Release of patient information to authorized Power of Attorney in New York State

    My daughter is currently a sub-acute care patient inside a major hospital's SNF. Since being transferred to sub-acute from acute care, the facility is now refusing to let me talk to anyone there regarding her progress or treatments or test results...

    Richard’s Answer

    I recommend that you contact a probate lawyer in New York to help you with this. The answer to your question will be specific to New York law. If you hold a valid Health Care Power of Attorney under New York law that is currently in force, you are probably entitled to receive information about her case. Has the facility explained to you why they are with holding the information?

    See question 
  • Brothers are trying to take everything! what exactly do I need to do! please help

    I have 5 siblings none of us have had a relationship with our father for 30+ years and he passed away a few years ago,recently our mother also passed away and looking through her documents I discovered she was still legally married when he passed ...

    Richard’s Answer

    This is a difficult case if your father's estate has already been probated in Oklahoma and has now been closed. If the probate hasn't been completed, you still have time to have your side of the case considered. I can't tell from you question whether the probate in Oklahoma is open or closed.

    The answer to this question will also depend, in part, on whether you father had a will and what it said. I strongly suggest that you contact a probate attorney in Oklahoma to give you advice.

    See question 
  • How do you settle an estate when no will was left?

    My brother passed away 2/29/12 in VA. There are 3 adult children, 2 of which I'm not sure are his even though he didn't request a dna test over the years. One of the 3 children has been doing under handed things since his passing. First of all, sh...

    Richard’s Answer

    I am sorry for your loss. This sounds like a difficult case with a high likelihood of conflict among your brother's children.

    If your brother died without a will (intestate), the law of Virginia will determine which of his next of kin will receive his estate. Usually state law gives a surviving spouse priority to the estate with children second. None of the children will be able to get control of your brother's bank accounts or real estate unless they were also joint owners of the accounts or property prior to his death. One of the children will need to hire a probate lawyer in Virginia and apply to the court to be appointed executor or personal representative of your brother's estate. Virginia law will identify which next of kin has priority. Most likely all of the surviving children have equal priority to be named as the executor. If they can't agree who should be executor, they could agree to have an independent third party serve as executor. If they can't agree on how to handle the case, substantial attorney fees could be expended fighting over the estate. I am currently involved in probate dispute where there was no will and the three children have been fighting over who should serve as personal representative for three years.

    If there is only one house, it will probably have to be sold with the proceeds being distributed equally to the children after all estate expenses are paid.

    The child that you are counseling should consult with a Virginia probate lawyer. They can help to get the case on track and deal with the issue of paternity under Virginia law.

    See question 
  • My wife is the sole trustee of her deceased grandmothers trust.

    When her father died, this left her as the sole trustee. The corporate trustee resigned years ago due the small size. The trust is now FBO of her mentally disabled sister who is on public assistance. She is the remainderman upon her death. Can s...

    Richard’s Answer

    • Selected as best answer

    Be careful! Your wife has fiduciary duty to administer the trust on behalf of the beneficiaries of the trust according to the terms of the trust and according to Maryland State law. A trustee may not use trust money for thier personal benefit unless they are also named as a beneficiary of the trust. A trustee who is not a trust beneficiary is considered to have breached their fiduciary duty if the money is used for the trustees personal benefit. This can open up the trustee to civil and/or criminal liability.

    Integrity means doing the right thing when no one is watching you. Just because nobody knows about the trust doesn't mean your wife can break the law or violate the terms of the trust.

    You wife may be entitled to charge a fee for acting as trustee of the trust, but that is subject to the terms of the trust and state law. I strongly suggest that your wife consult with a trust lawyer in your state to help her understand her duties as trustee and help her interpret the terms of the trust.

    See question 
  • My husband died Feb. 15, 2012, what do I need to do?

    We have a small mobile home worth maybe $9,000, in a mobile home park. Also, own a 98 Dodge Van - which my husband had promised my son before he died (no mortage), 1 2004 Oldsmobile Van-financed, 1 2009 Dodge van-financed. No other large items -...

    Richard’s Answer

    Generally, if property of a husband and wife is jointly titled at the time that one of them passes away, the surviving spouse automatically becomes the owner of the property. If the mobile home and vehicles were titled in both of your names, then everything passes to you. If any of the vehicles or the mobile home was titled only in your husband's name, you will want to consult with a Texas probate lawyer or the Texas Division of Motor Vehicles to learn how to have the mobile home and vehicles titled in your name under Texas law.

    In addition, most states provide that a surviving spouses is entitled to receive a minimum value of the deceased spouse's estate. I don't know what that minimum value is under Texas law, but I doubt that the amount is less than the value of your husband's interest in the mobile home and other personal property. Personal property that doesn't have a title like tools, radios, furnature, etc., is typically considered to be jointly owned by the husband and wife, which means that it also passes to you on your husband's death automatically.

    See question 
  • Can someone take judgement on a person who is beneficary of a Trust

    Judgement is on title of property that is in Trust

    Richard’s Answer

    You haven't provided enough information in your question to allow a full response to the question. Was the person who obtained the judgment a creditor of the person who created the trust, the trustee of the trust, or the beneficiary of the trust? Was the judgment obtained before or after the property was transferred to the trust? Has the property been properly titled in the name of the trust? Is the trust revocable by the judgment debtor?

    Generally a creditor of a beneficiary, who obtains a judgment against the beneficiary, cannot place a judgment lien upon property held in trust for that beneficiary unless the beneficiary is also the settlor of the trust and/or the trust is otherwise revocable by the beneficiary.

    See question 
  • My sister is the only beneficiary to my mother's life insurance policy.

    It was paid directly to the funeral home. She she is the only beneficiary, does the estate pay her back for funeral expenses? There are 3 children of my mothers, but she was the only one listed on the policy to be the beneficiary and she was named...

    Richard’s Answer

    Your question is somewhat inconsistent. You say that your sister was the only beneficiary on life insurance, but that it was paid directly to a funeral home. If it was paid to the funeral home, it means that the funeral home was the beneficiary, not your sister. If you sister was the beneficiary, then the life insurance proceeds would have been paid to her.

    If your mother purchased a life insurance policy to pay for her funeral, cremation and/or burial, then there is no reason for the estate to "reimburse" you sister for funeral expenses because she didn't pay the funeral expenses.

    If, on the other hand, your sister was the beneficiary of the policy and she used the money to pay for the funeral, she has a good argument that the estate should reimburse her for the funeral expenses, unless it can be shown that your mother made the life insurance payable to your sister so that she would have money to pay for the funeral.

    See question