Blog & Resources

From our “Ask a Question” mailbag: My mother named me executor, but I don’t get along so well with my brother and I am afraid he will sue me. Can I be personally liable as the executor?

The executor is a fiduciary, owning a duty of care to the beneficiaries. If your brother is an heir, he has the right to review all actions you have taken as executor and, if he feels any action you took reduced his inheritance, as the judge to surcharge you (fine you) so he receives the correct inheritance.

In many ways, being executor is a thankless task.

From our “Ask a Question” mailbag: My second husband and I live in a house that I own outright. If I die, I want him to be able to live in the house as long as he chooses, but I want my children to inherit the house when he moves out or dies. How do I keep them from evicting him from the house?

Avoiding conflict between children from the first marriage and the second spouse can be challenging, but if you are honest about the personalities involved, there is usually a way to satisfy everyone. One option in your case is to form a trust in your will that holds your house.

From our “Ask a Question” mailbag: I am named the executor of my father’s estate, but know nothing about the probate process nor do I have the time. I want to hire a probate attorney to help me, but how is the probate attorney paid?

As executor you have the right to use estate funds to hire professionals to assist you. Typically, you will hire an attorney to assist with the probate process, the transfer of assets and making sure you are released from liability. Typically, you may also hire an accountant, a realtor and a financial advisor.

From our “Ask a Question” mailbag: My mom died a resident of Montgomery County, Pennsylvania and named her girlfriend as beneficiary of her life insurance policy and pension. I was listed as a secondary beneficiary. Can my mother give her life insurance and pension to her girlfriend instead of her children?

In Pennsylvania there is no requirement that a mother leave her children any part of her probate estate. There is also no requirement that your mother had to leave her life insurance to a child. Pensions may have their own sets of rules about where the pension benefits have to pass at death, but these rules usually protect a surviving spouse, not children.

From our “Ask a Question” mailbag: I had a Revocable Trust formed years ago, which I thought replaced my will. Now I hear I also need a “pour over will.” What is a pour over will?

A Pour Over Will is a will that simply states that if you have any asset in your name at death, it should “pour over” into the Revocable Trust and names the executor who will have this power. If you have moved all assets into your Revocable Living Trust or have your assets pour into the trust at your death, then there is likely no need for a Will…but there is still a chance you will need a will filed.

From our “Ask a Question” mailbag: I have been diagnosed with the early stages of Alzheimer’s and need to create a way to have my son assist me as the disease progresses. Can a Revocable Living Trust help my son assist me with my diminished capacity and against any creditors that may arise in the future?

You are wise to start planning now to address your Alzheimer’s. Most people put off this planning, and that rarely ends well.

Creating a Revocable Living Trust that names both you and your son as co-trustees, each able to act independently, is a good system to help prepare for the future.

From our “Ask a Question” mailbag: Has the Angel of Death Tax Loophole been closed?

No, the Angel of Death Tax Loophole continues to exist, even though presidents from JFK to Obama have asked for it to be closed. In short, the Angel of Death Tax Loophole refers to all capital gains in an estate being forgiven at a person’s death.

From our “Ask a Question” mailbag: My father became ill the year before his death. I think that in the confusion his Will was thrown away. What if we can never find my father’s Will?

If you can locate a copy of the will, and if it can be shown that your father did not wish for it to be revoked, then the copy might be accepted. If you cannot even find a copy of the Will, then your father will be deemed to have died without a Will, and his estate can be opened with the Register of Wills as an Administration.

From our “Ask a Question” mailbag: My mother became ill and came to my house in Bucks County. Two weeks later, she died. In the rush to get things done, I didn’t notice that the funeral director mistakenly put Bucks County as her residence rather than Collier County, Florida. Her will gives everything to me, does it matter if I file the will in Bucks County? How do I correct the death certificate?

The county listed on the death certificate does matter, as the Register of Wills of Bucks County and the Surrogate in Collier County will use the death certificate as proof of what County your mother resided in at death. This matters to you because if she was a resident of Collier County, Florida, there is no Inheritance Tax.

From our “Ask a Question” mailbag: My son refuses to get a prenuptial agreement, how do I shelter the money I will leave him from my future daughter-in-law?

If your son refuses to protect himself, you have other options to protect the money you leave him. Instead of leaving him his inheritance outright, through your will or Revocable Living Trust you can form a protective trust to hold his inheritance.