Ask MetaFilter questions tagged with trusts

How does Power of Attorney Work in New York?

Caz721 — Fri, 30 Jan 2009 11:00:46 -0800

Since I am a lawyer (though of course, not your lawyer, and not his lawyer), a family member asked if I could help him with some issues regarding a durable power of attorney (NY State). Unfortunately, I'm not a trusts & estates lawyer, so I need some direction as to what I should look at and consider in order to let him know whether he should consult a lawyer with that expertise. I know you're not my lawyer, and I'm not seeking your legal advice. My cousin's husband, Jay, asked me for advice regarding his situation. Jay's mother recently passed away. Previous to her death, Jay's mother had a durable power of attorney for Jay's cousin, Max, who is developmentally disabled and legally incompetent (I don't know much about the exact details of Max's situation). Max is in some sort of living facility, and Jay's mother took care of administrative needs for Max.

Previous to Jay's mother's death, she arranged for the durable power of attorney to pass to Jay after she died (she was sick for over a year before her death). I haven't seen the paperwork yet so I don't exactly know how this was done, but please assume for the question that Jay now holds a durable power of attorney regarding Max.

A check from the proceeds of another family member's estate recently were sent to Jay's mother's address (after her death). Jay's step-father forwarded the check to Jay. I am unclear as to whether the check is made out to Jay's mother, for the benefit of Max, or simply to Max. Jay expects some other checks in the next few months as well, and wants to know how he should deal with opening the bank account and how he is limited in dealing with the money (apparently there is some investments for the Max's benefit that have recently lost 80% of their value due to the loss in their funds, and he wants to know if he has the right to move them to less risky investments, for example).

Jay is hesitant to contact a lawyer because there really is very little money here (currently under $5000 I believe), and he can't afford to pay very much at all out of his own pocket for a lawyer. He asked me what I thought, as a way of deciding whether he needs a lawyer. My instinct is to convince him to see a lawyer with expertise, but I'd like to be able to understand the situation so that I can point him to some resources or go along with him to consult with the lawyer and know what sorts of questions I should ask.

Thanks for any resources or advice you might have

How to change a will?

Anonymous — Fri, 08 Aug 2008 11:53:42 -0800

Relative C receives power of attorney over Relative A. Relative C wants to change the will. Relative A, on her good days, agrees. Their lawyer won't let this happen, claiming conflict of interest. What to do? This is for a a dear friend of mine who came to me, and I believe I have all the relevant details and facts. There's a lot of drama, but here's the situation:

1. Relative A and B have been married forever. They have a will that states the estate should be divided equally among two beneficiaries, relatives C and D (sons). At the time the estate is worth maybe $100,000.
2. Another relative leaves entire estate ($2mil) to relative A and B.
3. Relative B dies
4. Relative A cannot take care of herself. Relative C given power of attorney and is executor of the will. Relative A wants a larger percent to go to Relative C. Relative C cannot find an attorney to make the change.

Now, for the details. Relative C is normal, lives a middle class life and nearing retirement. Has a family, mortgage, everything else. Relative D, on the other hand, has a lot of problems. Relative D has never had a job, and has lived most his life homeless. It is of my opinion, from the stories told, that in addition to drug and alcohol problems relative D has some sort of severe mental health problem. Relative D had been kicked out of the family, effectively, for a long time. He was only heard of when him or a friend of his had a sob story about needing money for a variety of things. When relative B was alive he was never seen, money was never given (he was still in the will, for whatever reason, but at the time the money was not the amount it is now). Relative B dies and Relative D shows up to take advantage of Relative A. He has a long history of violence, theft, drug and alcohol offenses, you name it. Relative D breaks in at night and steals from Relative A. He is also abusive and beat up relative A. This went to court and relative A has a restraining order on him and there are charges of elderly abuse. He is out on parole and steals around $10,000 worth of jewelry from relative A. This is recovered and he is back in jail.

Meanwhile Relative C is having to deal with this drama, the court dates and taking care of relative B. This is missed work, stress and most certainly the cause of a minor heart attack that happened earlier in the year. He is also managing the large amount of money, and while he has a banker to do most of this, still is a lot of work. He used to manage relative A's medications, bills, etc.

Recently relative A was putting in a home after the elderly abuse incident. We come to learn that there is much more bullying via the phone and letters than Relative C realized. Relative A had been meaning to change the will since the death of Relative B. Relative C goes to two attorneys who both sympathize with him and tell him that they'd be trying to do the same thing, but that it is unethical to change the will.

I cannot believe this. I argue that at the very least, relative C should be getting compensation for taking care of relative A. I also fail to see how the long history of abuse, recorded abuse that went to court, fails to invalidate the will.

I realize that trusts and wills are complicated beasts, but C has gone to two lawyers that say there is a conflict of interest. My worry is that C is approaching this wrong. Even assuming the will cannot be changed, wouldn't C be able to receive compensation for taking care of A? C is not afraid to go to court, but does not want to run afoul of the law. He does not want to do anything illegal, but still feels that if A wants the will changed it should be changed. It seems silly that once he received power of attorney due to her dementia, the will could never be changed.

So what to do? My feeling is that shopping around for more lawyers might be dangerous as a less than reputable attorney might see the large dollar signs. Should he be leaving the will alone and approaching this from the perspective that he should be paid for all the work he is doing? I am sure there are probably important legalese lacking here, but I'm conveying the facts of the story as best I can. Trying to leave out all the emotion and drama regarding the deadbeat. I would be more apt to believe this is just family drama, were it not for the well-recorded, long rapsheet on this guy. From what it sounds like he is totally unaware of how much money is actually involved and still thinks he is getting around $50,000. In a perfect world, C would be more than happy with giving him that much and be done with it.

energy trusts

locoindio — Tue, 06 May 2008 11:14:23 -0800

my friend invests a lot of his money in energy and oil trusts. typically these trusts pay a dividend per share every month...and so they tend to average higher yields than most regular stocks. PWE is one of them. im considering putting money into an energy trust, but i want to know if the buzz is legit. somebody write back...

Is this the unauthorized practice of law in New York?

pikaboy202 — Thu, 06 Dec 2007 20:52:06 -0800

Is helping family from New York prepare wills and trusts the "unauthorized practice of law" if I'm an attorney from a different state? I'm an attorney licensed to practice in MA. I have family in NY who wants me to write wills and trusts for them. Can I do so?

I read Judiciary Law Sec. 478 and 484 regarding the unauthorized practice of law and also the rules regarding pro hac vice. There seems to be a gray area between being able to petition the court to represent a client in NY even though you're not an attorney in NY and not being allowed to hold yourself out as an attorney in NY.

I read the rules as saying that a non-attorney or an attorney from another state cannot "advertise" their services in the state of NY without being licensed in NY. However, I am not advertising myself as a NY attorney nor am I trying to get clients from NY.

How is preparing wills and trusts for family in NY different than being admitted pro hac vice (for this case only)? Any NY attorneys want to give me some advice?

trusts and wills

Anonymous — Tue, 06 Nov 2007 05:43:08 -0800

If a person has a trust and then dies, does the executor HAVE to disperse the assets as instructed in the trust/will? What's to stop him from just keeping everything, or rearranging the distribution? I was recently left a piece of property, but I am worried the executor (my brother) will try to sell the property to pay the estate taxes rather than dipping in the brokerage account (which was left to him). Or would there be another, separate account dedicated to paying the estate taxes? My brother is not entirely honorable about these things, and the brokerage account far exceeds the value of the house. Does anyone know how much latitude he has?

How to keep inheritance fair?

tristeza — Fri, 06 Apr 2007 14:02:46 -0800

Please help me make a proposal to my family about the fate of my parents’ home that is equitable and reasonable and doesn’t make me seem like a greedy jerkface. My parents own a (kind of junky) condo in a very expensive town. They paid an incredibly low price for it, let’s say $150,000. Its market value right now, with no improvements, is about $300,000. With improvements it could sell for maybe $400,000.

This condo is the only asset my parents have, and makes up the entirety of their “estate.” No one wants it to leave the family in the foreseeable future.

My folks are moving to Florida and are considering selling the condo to my brother (who would live there) for something less than market value, and using that money to buy a place in FL. I cannot afford to “go in” with my brother to purchase it with him. It would be 100% his.

My interpretation of this is that if this happens, I am out any inheritance I might have had, and any possible profit I could have made on the place if my brother and I were co-owners and sold it at some point.

So, my question is this: what sort of compromise could I propose to my family? How could there be a share between the 3 parties that gives my parents some $ to move, gives my brother a place to live and some equity, keeps the home in the family, and doesn’t leave me totally out in the cold? Is this impossible?

Thanks, all.

I have $50K from insurance proceeds but I'm on SSI/Medicaid, what should I do??

pikaboy202 — Tue, 06 Mar 2007 08:23:13 -0800

What can I do to continue recieivng SSI and Medicaid benefits if I received a lump sum insurance proceeds? I know someone who's elderly and disabled. She is receiving SSI benefits and is on Medicaid. Recently, her husband was involved in an auto accident and he died. The other person involved was wrong and their insurance company paid out a wrongful death benefit to the wife in the amount of $50K.

She has the check but hasn't cashed it yet because she's afraid that it'll make her lose her SSI and/or Medicaid benefits.

I know of 2 options: spend down the money or put it into a "pooled trust." I know the drawbacks of a pooled trust is that you have no control over the dispursement of funds and also, after the death of the wife, the funds are used to payback medicaid.

My questions to the hive are:
1. If she spends down, what would be the best ways to spend down the funds? What should she do with the money to maximize usage (either for her or her beneficiaries when she dies) and also not jeopardize her SSI or medicaid benefits?

2. Would the pooled trust be a better option?

3. Are there any other ingenious ways to shield the $50K?

Florida Executor Fees

Mckoan1 — Mon, 18 Dec 2006 14:44:24 -0800

Would a member know what is considered a reasonable and just fee acting as a legal Executor for a person's Estate in the State of Florida? Is there a web site that would provide an estimate of Executors fees handling the disposition of a Florida Living Trust? Thank you.

Help me set Maw up for another 67 years of financial well-being

Mutant — Tue, 25 Jul 2006 06:32:14 -0800

Forgiving or otherwise reducing Maw's debts? As a followup to this question, I've arrived at an effective financial mechanism to help me provide for Maw, however while evaluating her overall financial health I learned that she's acquired alarming (given her previous state of relatively low income) debts.

Specifically, at 67 years of age she's never earned more than $18K, but somehow has managed to convince three lenders to front her some $20K in debt. I believe most of this is unsecured, but I haven't seen all the paperwork yet and as a further indication of Maw's lack of financial knowledge she has no idea herself. My current activities have been focused on migrating higher interest rate debt into lower rate facilities, but the final outcome is unsatisfactory even if I can get all of her debts into a secured vehicle.

Clearly it doesn't make any sense for me to be supporting Maw if over one third of her current source of income (Social Security) is absorbed by debt service. I work in banking and just by looking at her age (not to mention low income) consider this an example of irresponsible lending, so what are the options here for debt relief / forgiveness or outright bankruptcy?

Can I negotiate on her behalf? I suspect she'd have to appoint me her financial guardian (of sorts, not sure what this is really called in practise, I'm just aware of the term from BSchool), otherwise these folks won't talk to me. If I do undertake negotiations on her behalf, I'd want to know what my ultimate fall back is so I can play hardball, so does this strike any of you as a clear cut case for bankruptcy?

I've been living in the UK full time since 1998 and for about one year before that I divided my time between New York and London, so I'm more than a little in the dark on these matters back in the US. Any ideas on the path of least resistance? Are these debt counseling services really worthwhile engaging?

I'm not adverse to personally paying off her debts if we could get them reduced somewhat. If this negatively impacts her credit, all the better from my viewpoint as she can't hold onto money. Any suggestions for helping Maw weather another 67 years in improved financial help welcomed.

Giving and minimising taxes?

Mutant — Sat, 06 May 2006 09:50:50 -0800

Setting up a financial trust for Maw? My mother has tremendous problems handling money. Or, to be more specific, holding onto it.

I left the US in 1998, and every year since I've given her $10K for a Christmas gift and every year in it's all gone in two months or less. She work(ed) as a Health Care Aide, earning about $18K but recently lost her position.

Upon investigation of her affairs I found she's only got about $4K in cash, and she's not even certain about that. Her and I disagree about money, so she's probably inflating this a little.

In the past every time I tried to get her to save there was a lot of hollering (not from my direction mind you) so I just gave up and let her enjoy herself. Now's she's got a problem, but there are pluses: the house is fully paid for, she lives in my very small hometown where almost everything is within walking distance, she already receives a small Social Security cheque and I'm liquid.

I don't mind giving her a little more than the $10K I'd previously been passing her way, but would like to do this in a more controlled manner and hopefully minimise my taxes.

From Business School I know a little about trusts, and believe that I could establish a one with her as the beneficiary, but can I do this in such a manner that I can control the assets while all revenue and hence tax obligations on the income stream will accrue to her? Also, should she pass away before me I'd like to regain control of the capital. Is such a vehicle possible?

I have no problem about setting up a trust for her, and capitalising with a couple hundred thousand, and know from my own portfolio that I can easily earn a dividend stream of ten percent or more on the securities if I pick and trade them, but how do I go about this? What type of professional will help me do this as cheaply as possible?

If it matters I live in London and Maws in the United States. I'm just not sure what to ask for, roughly how much it would cost to establish & run, where it's best located, if it's possible to regain control of the assets later, or even if I"m better off just dumping this money into my own brokerage account and taking the hit on income taxes myself.

Thanks much!