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Date: November 5, 2009
Host: Sharon M, Siegel View Transcript | Archive Index For All Legal Chats Whether you're trying to figure out if you need a "power of attorney," or have suddenly found yourself the executor of your uncle's estate, it's hard to keep up with the legal jargon of managing your assets and processing a will. Bring your questions to a live chat with estate planning and probate lawyer Sharon M. Siegel, starting at 10 p.m. Eastern (9 Central, 7 Pacific) on November 5th.
SHARON SIEGEL, a New York lawyer, practices in the fields of estate planning and administration,
contested estate and trust proceedings, elder law and guardianships. She also has significant experience in real estate and corporate law. Sharon graduated from Benjamin N. Cardozo School of Law of Yeshiva University. Sharon says of having handling large and small estates and having planned for and worked with individuals of substantial and modest means, "Representing such a wide spectrum of individuals has trained me to look at situations from almost every angle - legally, tax wise, and practically." Sharon says that because her practice area touches on the most emotional and private facets of someone's life, she considers developing a relationship with her clients central to her practice. Sharon is admitted to practice in New York State.
http://www.lawyers.com/siegelandsiegel Live Chat Transcript S.Agan: "my brother has a HPOA and he is not able to talk or answer for his self and he was not in his right mind at the time he changed his HPOA while in a nursing home. Now his son will not take care of him and his daughter is doing what she can for him but it is to much on her and she wants to put him in the hospital but her brother will not let her and he is the HPOA. What can she do to override him on this since he will not help her?"
montyp: "My mother recently died intestate in Florida. She had a money market account (not tax deferred) that named me as a beneficiary. It is my understanding that this amount will not be subject to probate and that I can access it at any time. Is this so? Also, if there are no other assets in the estate, am I responsible for her debts out of that amount?"
LoveHawaii79: "Mrs. Siegel I have a question regarding a testamentary trust in Hawaii?"
Sharon M. Siegel: "ok"
LoveHawaii79: "Can the court order the Personal Representative to work for less because he is charging too much even though the will states what he is entitled to for fees?"
Sharon M. Siegel: "Love go ahead"
Sharon M. Siegel: "I am a NY lawyer. When you say the can the prder the pr to work for less, do you mean alter the amount of commissions?"
Sharon M. Siegel: "Usually the terms of the will stand. However, I have not seen the exact language of the document. The language of the document would determine what discretion there is, if any."
LoveHawaii79: "The probate case is in Hawaii and basically there is a testementary trust where my wife is the sole beneficiary. She should have received the trust 3 years ago but everytime we talk to the attorney who is the trustee we don't get any clear answers as to what is taking so long."
LoveHawaii79: "This last week the answer he gave me was that the he had to prepare materials for the executor to sign. When I talked to the executor he said the lawyer told him that he had to reduce his fees because he was charging too much. But I don't see anything filed in the court stating this."
Sharon M. Siegel: "Your initial question was as to "fees". Did he claim trustees commissions oor legal fees and you are contesting the amount or are you seeking a distribution and he/she is refusing. I am unclear as to your question."
LoveHawaii79: "What it really get down to is we are seeking distribution of the estate."
Sharon M. Siegel: "So, I gather that the executor and trustee are 2 different prople. There are two ways to handle this, 1) compel an a ccounting 2) compel a distribution."
LoveHawaii79: "The will states that my wife is to receive distribution from the estate at 25. She is now 28."
LoveHawaii79: "Okay."
LoveHawaii79: "The executor has been forthcoming with an accounting. He isn't the problem."
Sharon M. Siegel: "In a way he is becuase he has funded the trust."
LoveHawaii79: "Okay"
LoveHawaii79: "We also asked for an advance about a month ago on the assets and the executor had no problem with it. But the lawyer said no."
Sharon M. Siegel: "While he is not the trustee with the authority to distribute, he could have been more helpful to you. If your wife is the only beneficiary, it is important to see what the executor collected/marshalled and to make sure that he turned it all over to the trustee."
Sharon M. Siegel: "Is the executor a co-trustee?"
LoveHawaii79: "No he isn't."
LoveHawaii79: "And I think therein lies some of the problem."
LoveHawaii79: "He gave a complete accounting of everything again this last January to the lawyer (trustee)."
Sharon M. Siegel: "Yes, I agree. That is why I said the executor is not off the hook. He must account for the estate's assets and make sure they were turned over to the trustee."
LoveHawaii79: "He has done that back in 2005 and did that again in 2009. The lawyer responded to him in 2009 that he was too busy in 2006 when my wife turned 25."
Sharon M. Siegel: "Thereafter, he has no role. Only the trustree does. Thus, I stand by my original advice: 1) compel an accounting of the trustee and the executor 2) compel a distribution. You should consult with a lawyer who can review the document."
Sharon M. Siegel: "But, it is not the executor's role to make his demand, it is your wife's role."
LoveHawaii79: "Okay, thank you very much. How do we go about compelling a distribution?"
Sharon M. Siegel: "Consult a local lawyer. In NY, it is a court proceeding."
Sharon M. Siegel: "hi Denise"
Denise, Community Director (Admin): "Hi, just a quick check on the room."
Sharon M. Siegel: "ok"
Sharon M. Siegel: "all is good."
Denise, Community Director (Admin): "Great!"
Denise, Community Director (Admin): "Thanks!"
LoveHawaii79: "Is it costly?"
LoveHawaii79: "And usually has long does the process take?"
Sharon M. Siegel: "Each lawyer charges differently. And this would vary greatly by state. Same with the time."
LoveHawaii79: "Understable."
Sharon M. Siegel: "I am not familiar with Hawaii procedure to venture a guess."
LoveHawaii79: "Right now we are filing a complaint against him because the only response we get from the lawyer is to call him back in two weeks."
LoveHawaii79: "As a matter of fact we hadn't heard anything from the lawyer until last year when I called him to check on the status."
Sharon M. Siegel: "I am sorry that you are having these type of issues. Unfortunately, this type of behavior gives rise to the rputation of all lawyers. Good luck with it."
LoveHawaii79: "Thanks. I know lawyers like him give lawyers a bad name and it is quite unfortunate."
Sharon M. Siegel: "Good luck."
LoveHawaii79: "Thanks again. You have been a great help."
Sharon M. Siegel: "hello happiness, please post your question"
Sharon M. Siegel: "happiness?"
happinessistheroad: "My mother, 69, is in poor health. She has a house, car and $40,000. Should she have a will or is there a better option? I am scared she might need nursing home care soon. I have heard of TODs. Would it be better to have a TOD or a will? She has 2 daughters, no husband."
Sharon M. Siegel: "Several questions. What state is she domiccilied in? How is the house held? What is the approximate value?"
Sharon M. Siegel: "When you say bad health - do you mean physical or mental?"
Sharon M. Siegel: "As you may know, I am a NY lawyer. I would say that if the poor health is physical, but the mental health is good, you have options. It mostly depends on whether she is comfortable with changing title on the house and how she wants to bequeath it. If for example, she wants to leave the house equally to you and your sister, one option is for her to redeed it, and grant herself a life estate. However, if the house has a great value, you may want to look at some tax savings measures such as a trust. With the bank account, you can do a tod, this is easy. If all the major assets are dealt with by operation of law, then you just have the car left and can do a small estate for the car. This is my general thoughts - pending the answers to your questions."
happinessistheroad: "She lives in Tulsa, OK. She bought the house 2 years ago for 118,000. The title is in her name only. She is unable to care for herself as she should. She has a hard time just walking from the bed to the chair. She has lots of phsical problems. She is depressed. I live close to her and am having to spend more and more time with her. She has been to a neuropsychologist who recommended 24 hour care. But she doesn't want to live anywhere but her house."
happinessistheroad: "What is a redeed? Would that affect my finances as I have 2 kids in college, each with some financial aid?"
Sharon M. Siegel: "Changing the title/ ownership of the house. I gave you my general thoughts above. I hope you can see them. If not wait til the chat archives tomorrow. We have reached 11:00. Feel free to return next week or post on the board."
Sharon M. Siegel: "Thank you all. We have come to the end of the chat. See everyone next week at the same time."
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