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Probate, Trusts & Estates

Probate, Trusts & Estates

Optimizing Tax Savings Through Charitable Giving

State: 
Pennsylvania

Millions of Americans give to charity every year – whether to their church, their university, or their local soup kitchen.  Yet many of us fail to take full advantage of the significant income tax savings that can be generated from our charitable donations, leaving hundreds, or even thousands, of dollars in unclaimed tax deductions.

My brother died recently, without a will.He was never married, and had no kids.He has property and,monies in the bank, and from a law-suit he won against his employer. I need information on how to go forward with 'probate', papers to become the conse ...

State: 
California
Question: 
My brother died recently, without a will.He was never married, and had no kids.He has property and,monies in the bank, and from a law-suit he won against his employer. I need information on how to go forward with 'probate', papers to become the conservater of his estate. There are three other siblings also.
Answer: 

If someone dies without a valid will in California, they are said to die intestate. This means that California has created its own laws regarding how property will be distributed to family members if no will was created during the individual’s life. For example, according to the rules of intestacy, if your parents are not living and your brother died single and without children, then you and your siblings will inherit your brother’s estate equally.
 

If no will exists, the California Probate Code provides a list of individuals who are eligible to become administrator of the estate. You will file the request with the probate department in the superior court in the county where you brother resided.  A notice to all interested parties is then sent out, which would include your siblings and any other relatives, for instance, if your parents are still living. A hearing is then scheduled to address any issues regarding the probate of the estate.


For more information about the probate process in California, visit  http://www.courts.ca.gov/8865.htm.

My brother doed 10/2/2008. I requested a death certificate but was told there was no record found. How do I get one? ...

State: 
Illinois
Question: 
My brother doed 10/2/2008. I requested a death certificate but was told there was no record found by the Cook County Clerk How do I get one?
Answer: 

The Cook County Clerk retains records of all deaths that take place within the county. Relatives can request copies of a death certificate in Illinois. You can request a death certificate in several ways including online and by phone. If your brother died in Cook County, then you should be able to request and obtain a copy of the death certificate. However, if your brother died in another county, contact the clerk’s office in that county.

For more information about requesting a death certificate in Cook County, visit the Cook County Clerk’s website,
http://www.cookcountyclerk.com/vitalrecords/deathcertificates/pages/default.aspx.

I am trying to put together a simple will, and don't know all the items with which I should include. I am single, disabled, a house (trailer on land estimated around $60,000),personal property, and such and have more questions than answers. Can you h ...

State: 
Virginia
Question: 
I am trying to put together a simple will, and don't know all the items with which I should include. I am single, disabled, a house (trailer on land estimated around $60,000),personal property, and such and have more questions than answers. Can you help?
Answer: 

A will describes how you would like your property distributed to your heirs upon your death. Any mentally competent person who is at least eighteen years old may make a will in Virginia. In addition, when you sign your will, there must be at least two witnesses. These witnesses then sign the will acknowledging that they saw you sign the will. While not mandatory, you may choose to have your will notarized to support the validity of the will. However, if you draft the will in your own handwriting, and then sign and date the will, your will is referred to as being holographic, and you do not need to have any witnesses present.

In general, you should include all property in your will that you would like to indicate how to be distributed upon death. If you do not have a will in place upon your death, your property will be distributed according to the rules of intestacy for Virginia. Generally, intestacy provides for your property to be distributed to your spouse and children first, followed by any grandchildren, your parents and then your siblings. Before distribution, all debts will be settled.

Consider contacting an attorney in Virginia to help you draft a simple will. In addition, for more information about drafting a will in Virginia, visit the Virginia State Bar’s website
http://www.vsb.org/site/publications/wills-in-virginia/.

Attorney: 
elizabethcarlsen

what is a small estate affidavit? ...

State: 
Illinois
Question: 
what is a small estate affidavit?
Answer: 

A small estate affidavit is a probate method that may be used to transfer property of an estate in certain limited situations. For example, if the value of the personal property in the estate is $100,000 or less and no real property is involved, you may be able to use a small estate affidavit. If the decedent left a will, it may be more difficult to use a small estate affidavit. For the small estate affidavit to be valid, all heirs to the estate must sign and swear to the affidavit before a notary. If an heir cannot be found, then you may be prohibited from using a small estate affidavit.

A small estate affidavit is a complicated legal document and if you have questions, contact an Illinois attorney. To view a small affidavit form in Illinois visit http://www.treasurer.il.gov/finances/estate-tax/pdf/SmallEstatesAffidavit--IAForm.pdf.

Attorney: 
elizabethcarlsen

I wish to give up my responsibilities as a trustee of an estate. it is too overwhelming. I took this responsibility when my mother passed away. How do I resign from this position? ...

State: 
Delaware
Question: 
I wish to give up my responsibilities as a trustee of an estate. it is too overwhelming. I took this responsibility when my mother passed away. How do I resign from this position?
Answer: 

A trustee has many duties when handling the administration of an estate, and if you are unfamiliar with what to expect, you may soon feel overwhelmed by the amount of responsibility. There are several ways to resign from the position of trustee. First, you can resign as trustee if the trust document itself permits you to resign. The trust document may ask you to perform a specific procedure to resign, such as notifying all beneficiaries of the trust in writing a stated period of time before you resign or you may need to remain as acting trustee until a replacement trustee is named. If the trust document does not provide for a method of resignation as trustee, you may need to petition the Delaware Court of Chancery and request an approval of resignation. If you must petition the court for approval, there may be additional filing fees and court costs associated with your resignation as trustee.

If you have additional questions about how to resign as trustee, contact the Delaware Court of Chancery http://courts.delaware.gov/chancery/.

Attorney: 
elizabethcarlsen

Can back child support be taken from an inheritance ? I am owed thousands and my ex stands to inherit money. Can I go after it? ...

State: 
Florida
Question: 
Can back child support be taken from an inheritance ? I am owed thousands and my ex stands to inherit money. Can I go after it?
Answer: 

Yes, Florida is one of only a handful of states that has on several occasions allowed an inheritance to be used to fund child support obligations. One state court has even compared an inheritance as being similar to “lottery” winnings. Here’s a workbook used by judges and attorneys, in deciding what assets are subject to child support: http://www. acf.hhs.gov/sites/default/files/programs/css/essentials_for_attorneys_ch09.pdf . On page 105 of that booklet, you’ll also learn why Florida can present some challenges to your child’s claim to part of a parent’s inheritance.


 


Since an inheritance may increase the parent’s ability to pay support, you might also be seeking not only past due support, but for an increase in support (so you might be seeking a deviation from the standard support guidelines—and here are the guidelines for support payments http://dor.myflorida .com /dor/ childsupport/guidelines.html — if the inheritance is a lot of money). Here’s the actual form asking for an increase: http://www.fl courts.org/gen_public/family/forms_rules/905b.pdf. But if other children have been born to the non-custodial parent since the original order, Florida might be very reluctant to allow the increase/deviation.


 


There can be some limits on getting part of an inheritance, however, based on what type of valuable asset is being inherited. Your winning argument will be by showing the inheritance should be treated as income. But before looking at the specific argument of using inheritance for child support, I have a couple of other questions: 1. Have you already gotten court or state ordered support for your child? Here is a chart of the process: http://dor.myflorida.com/dor/report /2006_2007/pdf/cse_establishing0607.pdf. And 2. D you need any legal representation for the case?


 


1. I’m not sure “where” you are in the support process. Many times, people have entered into voluntary support payments. You didn’t mention if you’d already gotten a court order. Here’s information on filing for child support orders and enforcement. From a court: http://www.flcourts.org/gen_public/family/forms _rules/index.shtml#902. From the state support enforcement agency: http://dor.myflorida.com/dor /childsupport/apply.html.


 


2. If you would like to see about low-cost, affordable legal representation, you can try applying based on income: http://www.floridalegal.org/. The Florida bar also may be able to qualify you for an affordable (or even free) lawyer through their Pro Bono effort: http://www.floridabar.org/tfb/TFBConsum.nsf/840090C 16EEDAF0085256B61000928DC/A99E4C9F07844AC385256FF90073D012.


 


From here, I’m assuming you do have a court order for enforcement already. If you need to go into court to enforce a prior court order for support (or for contempt for his failing to pay), here’s the form: http://www.fl courts.org/gen_public/family/forms_rules/960.pdf. You’ll want to file in the same court that issued the original order.


 


Other Court Decisions: Inheritance As Income?


 


One interesting court case has looked at the way someone received their inheritance, too. It has happened in this major California case that the inheritance award was written in such a way as to try to avoid being subject to past child support orders. It was a case where the will’s language was changed shortly before the parent died. Here’s that case: http://www. leagle.com/xmlResult.aspx?xmldoc=200731169CalRptr3d242_ 1283.xml&docbase=CSLWAR3-2007-CURR. You can actually ask for a lien on the inheritance, and try to see if there was an attempt to keep the inheritance from being used to pay past support. This can be done under Florida law since your child has an interest (an “interested person”) in finding our whether or not the inheritance is affecting the support payments: http://www.flsenate.gov/laws /statutes/2011/731.201.

Attorney: 
DakotaLegal

Does Oregon have a termination law for an irrevocable trust? ...

State: 
Oregon
Question: 
Does Oregon have a termination law for an irrevocable trust?
Answer: 

Yes, surprisingly, there are some situations where an irrevocable trust will need to be changed or even terminated. Let’s take a look at some of the most usual situations…youo may want to begin by looking at the laws themselves: http://www.leg.state.or.us/ors/130.html .

The most common situations where a trust can be terminated in Oregon is when ALL the parties with an interest in the Trust agree to the termination. The Oregon Bar also has workshops and publications, describing trusts and whether they are truly irrevocable or not. http://www.osbar.org/!newsletters/estateplanning_july06.pdf

In Oregon, there have even been some cases where (despite disagreement between the beneficiaries) a court still allowed termination. One of the most important of these cases came in 2006. That’s In re Dobyns, 205 Or. App. 183, 134 P.3d 983 (2006). In this case, the trust had been created to take advantage of some tax codes, but the lawyer’s advice on the tax issue was wrong. This went to the very purpose of having the trust. Instead of basing a decision on the Trust law, the court relied on a prior Oregon statute and the idea of equity…or what the law deems as essential fairness. This raised a very important point that is one of the best ways to either keep or terminate even an irrevocable trust: “Was there such a serious mistake that the irrevocable trust was grossly unfair?”
Another less common way to rescind an irrevocable trust is to prove fraud or undue influence. You can check out these tests through reading a case such as Egr v. Egr, 170 Or. 1, 131 P.2d 198 (1942) (this case says that a trust created by undue influence should be invalid) and Restatement Second of Trusts § 333 (1959) saying that if a trust was made without what’s called “consideration” it may not be valid. The use of consideration is a contract idea, and usually applies when the trust involves some bargain between non-family members. You can also see undue influence of someone with Alzheimers: http://caselaw.findlaw.com/or-court-of-appeals/1023463.html .

Hopefully, by now you can see that the reason for creating the trust, your interest and actions in the trust, and whether any type of mistake were involved can cause the termination of a trust. But there’s also a good possibility that changing the irrevocable trust might be the best answer. Here’s a case you may want to read to understand how changing one part of a trust may save the trust (in this case, changing a trustee): http://caselaw.findlaw.com/or-court-of-appeals/1320638.html .

One final thing to keep in mind, now that we’ve talked about the law on the books, there are also court powers (such as in the Dobyn’s case) under the common law. This may mean you also have rights to check on whether there are some exceptions to the law, meaning a supposedly irrevocable trust cannot stand the way it is. In most ways, though, Oregon courts will try to protect an irrevocable trust. The most common situations where a court will not protect such a trust from revocation is where there is a special need, or the trustees and trustors are the same person, and enforcing the trust is clearly going to hurt them.

Though you did not mention whether this applies or not, there are special protections for those with disabilities, for example. These protections can apply, whether the trust was created by or for the person with a disability. http://www.droregon.org/need-help . There is also specialized P&A help just for guardianship issues, which are often important in modifying an “irrevocable” trust. http://www.droregon.org/need-help/guardianship . In the same way, the Oregon Attorney general has special programs to protect seniors from financial abuse. http://cms.oregon.gov/dhs/spd/pubs/finabuse_eng.pdf

Attorney: 
DakotaLegal

Amendment to Trust

State: 
Georgia

This is an example of a short amendment to a trust which is a legal document that alters certain provisions of a revocable trust. Just be careful, however, because amending a trust that is irrevocable constitutes an attempt to revoke it! 

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