Blog & Resources

From our “Ask a Question” mailbag: My father, a resident of Delaware County, Pennsylvania, died of dementia 12 years ago. Shortly before he died, his will was changed giving everything to my cousin. We believed that my father died broke, but now that my cousin died, we found out that he had a joint account with her containing a large sum of money. The prior will states that I would receive ¼ of his estate. Can I challenge the will?

First, a will challenge case alone based on incapacity or undue influence, even if successful, would not help you. You stated that the funds were in a joint account. A joint account passes outside of probate, meaning the will has no effect on the joint ownership. To be successful, you would first have to prove that the joint account was created improperly-perhaps under undue influence or forgery-so that the assets would pour into the estate. Then you would have to prove that the existing will was invalid.

From our “Ask a Question” mailbag: Years ago, I gave my husband a General Durable Power of Attorney. Now I am divorced, living in Montgomery County, and I want to give Power of Attorney to my daughter. My Ex will not give me the old Power of Attorney. Can I revoke or void the Power of Attorney if he still has the original?

Yes, you can void a Power of Attorney at any time as long as you have the requisite mental capacity. Your situation will be a little more complex, as you have given the original document to your former agent. I have not seen that Power of Attorney, but it may have a paragraph that states that banks and others need not confirm with you that the document is still in power.

From our “Ask a Question” mailbag: I am worried about having someone sue me in the future and would like to shelter my assets from creditors. I have read about Irrevocable Trusts and Revocable Trusts, do they both help avoid creditors and lawsuits?

A Revocable Living Trust is a wonderful tool with many uses, but it does nothing to help you avoid your creditors. Because a Revocable Living Trust is “Revocable.” That means you can take the assets back into your name at any time. Because you can take the assets back, any future creditor you have or any future lawsuit judgement against you can be enforced against the trust.

From our “Ask a Question” mailbag: My brother has had money problems his whole life. At various times my parents lent him money and he made a few efforts to repay, but he owed most of it still at their deaths. As executor I brought these loans up and he now says they were gifts, not loans. We split the estate equally, but if he gets to say these were gifts he will have ended up with much more money than I, which is unfair. What can I do?

As the executor you are tasked with gathering the estate assets. Loans are assets, so you do have the right to gather information to prove the validity of the loans. As executor you also have the right to hire professionals to assist you, such as accountants and attorneys.

It is time for you to hire a professional to review the evidence and advise you. You could take the position that these are loans and reduce his share of the estate, but if he refuses to sign a release he will be free in the future to file a petition forcing you to account and demanding a larger share of the estate.

From our “Ask a Question” mailbag: The will says that all funds are to be equally divided between the siblings. The executor is dividing things unevenly. We had an agreement how things were to be divided. What can I do if the Executor is not holding up her end of the will?

I believe what you are describing is an estate that has been opened with the Philadelphia Register of Wills and Letters Testamentary issued to one person, the Executor. The Will says that the estate is to be divided up equally between the deceased person’s children but, the Executor has decided on her own to divide up and distribute the estate’s assets unequally.

From our “Ask a Question” mailbag: Before she died, my mother-in-law lived in Delaware County, Pennsylvania and I drove from the Jersey Shore every weekend to take care of her. Now that she has died, her estate is being divided up between her children and they refuse to compensate me for all the miles I traveled taking care of their mother. Can I make a claim to be paid?

Your mother-in-law’s estate is to be divided up between the heirs as her will dictates, or through the rules of intestacy if she had no will. Prior to the division of the assets, all her creditors will be paid. If you had no agreement showing that you were to be reimbursed, it will be difficult to prove that you are a creditor.

From our “Ask a Question” mailbag: My son has very little ambition and lives in my basement. My other children are successful and have their own houses. At my death, I want my house sold and the money divided equally between my three children, but I am sure that my son will refuse to leave the house. What can I do to make sure the house is sold?

Children who will not leave the house are a common problem, and a source of family conflict. By recognizing the potential problem, you can help defuse the potential conflict.

I suggest that we amend your will to state clearly that the house must be sold immediately following your death.

From our “Ask a Question” mailbag: My mother died and I was named Executor of her estate. The estate is divided equally between myself and my brother and sister. She had so many things in her house that none of us want. Can I give these to charity and then take a deduction on the Pennsylvania Inheritance Tax return?

If I have the facts correct, all assets are equally divided between you three siblings. This includes all personal property. If so, then the right to collect the property is with the children and the Commonwealth’s Inheritance Tax is due on the fair market value of those things. The tax for children is 4.5%.

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: 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.