More FAQ's

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: will information

if a spouse is still alive, but the will has not been carried out from his father's estate yet,
then the spouse dies;
is the spouse's spouse entitled to that interest once deemed to the spouse even though the interest has not yet been distributed.

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: will information

The answer to this question depends on the terms or the Will of the Father and other documents (such as a Trust.) For example, many Wills have provisions that if a beneficiary dies within 90 days of the death of the testator then that beneficiary is excluded. Also, there may be a Trust which dictates distribution of the father's estate.

You should have this reviewed by an attorney experienced in tax and estate matters. For some general issues on estate planning and probate, please check my web-site http://www.saveyourestate.com

I hope this helps!

Ron Cappuccio

Question :Are there advantages of a Revocable Living Trust Compared to a Power of Attorney?

Answer: A power of attorney is narrowly construed, is revoked on death (how do you prove the principal is alive) and often refused to be honored. The trustee of a RLT is the legal owner of the assets and, as a result, makes it much more powerful. Click Here for more information on Revocable Living Trusts.

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Trusteeship

A relative named a bank as trustee of her trust & another relative as executor of her estate - the executor would like to change the trustee to another bank or trust company
What are the laws/regulations governing this?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Trusteeship

The actual language of the the Trust Agreement controls. Presuming the Grantor of the trust is dead, if the Trust document does not provide for changing the Trustee, the Executor, unless also a beneficiary, has no ability to take court action to replace the Trustee. The beneficiaries should contact an estate attorney and have the trust agreement reviewed.

I have more information about estate planning and trusts at www.saveyourestate.com

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NUS-US
Subject: money left to deceased person

My mother, who passed away in 2001, received a letter from a lawyer in England advising of money left to her by my father's cousin. I contacted the lawyer and she advised the money cannot go to her estate. If this is true can I contest the will or request information as to where the money will go?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NUS-US
Subject: Re: money left to deceased person

BE CAREFUL!!!!
This maybe a variant of the "Nigerian Scam." I have some samples listed on my website www.taxesq.com

IMMEDIATELY contact your estate lawyer! Do NOT pay any money or give any bank account information to the alleged attorney in England!

I hope this helps!

Ron Cappuccio

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Disclaimer of Inheritance
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Question:
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Category: Probate, Trusts, Wills & Estates
Location: SD
Subject: Inheritance

Is it possible for a person to decline an inheritance if they are named in a will?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: SD
Subject: Re: Inheritance

An inheritance may be "disclaimed"within 9 months of the date of death. The disclaimer has to be in writing and directed to the executor. If the disclaimer is made after 9 months, it will be considered a gift to the ultimate beneficiary.

For more estate issues, please check my web sit www.saveyourestate.com

I hope this helps!

Ron Cappuccio

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Question:
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Category: Tax and Taxation Law
Location: MN
Subject: Inheritance

It is possible that I may be expecting an inheritance of approx. $15 mil. How much am I going to owe in taxes? The money will come from overseas.

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Reply:
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Category: Tax and Taxation Law
Location: MN
Subject: Re: Inheritance

Please watch out for Scams! Do not give any money to someone overseas. Please check with your own local lawyer. Also, check out my website for scam information.
www.taxesq.com

I hope this helps!

Ron Cappuccio

====Note====This is the responsive email from the inquirer:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Release and Refunding Bond

In NJ, heirs need to sign a form acknowledging receipt of their distribution; however, is it also required to sign a statement saying the distribution (or a prorated part) will be returned to the estate if needed to pay later claims against the estate?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Release and Refunding Bond

In NJ a Refunding Bond and Release is required to be executed (signed and notarized) prior to the distribution. The Refunding Bond and Release states that you accept the accounting of the Executor and that if there are any claims against the estate, you will refund your distribution if needed. This gets filed with the Surrogate's Office to close the estate.

I have additional information at:

www.saveyourestate.com

I hope this helps!

Ron Cappuccio

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Question: 1/07/07
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Distribution of monies from a life insurance policy

I have a life insurance policy for $195,000 and my wife is the beneficiary, I want her to give $10,000 to each of my three kids and to my father. Can she give them the money without any taxes having to be paid by either party, or do I have to draw up a will stating my wishes in order to avoid any taxes? My life insurance policy won't let me break down the policy, it's share and share alike. Thank you

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Distribution of monies from a life insurance policy

First, if you can still get life insurance at reasonable rates, why not get additional coverage for your children and father? Secondly, if additional insurance is not an option, you should have an estate and tax attorney prepare a Trust. You would then change the beneficiary of your life insurance policy to the Trust. Your wife could be the Trustee and you can have $10k go to each of your children and your father, with the remainder to your wife.

I hope this helps!

Ron Cappuccio
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Executor compensation

I have CD accounts, annuities and Money
Market fund accounts with named
beneficiaries. Are these accounts still
considered to be part of my estate and
therefore subject to compensation for the
executor of my will?

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Reply: http://www.lawguru.com/cgi/bbs/mesg.cgi?i=264820653
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Executor compensation

The CD accounts are part of your estate but they do not pass by your Will. Rather they go directly to the named beneficiary. Some states will permit the Executor to get a fee using these "augmented" estate items. You need to check with a tax and estate attorney for the answer in your state.

I hope this helps!

Ron Cappuccio

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Question: 12/24/06
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Category: Tax and Taxation Law
Location: AZ
Subject: primary home owned by SMLLC?

For asset protection it was suggested that the title of our primary home be transferred to--name removed--single member LLC. The LLC being owned by our revocable living trust. Would we lose our $500,000 capital gains exclusions if we do this?

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Reply:
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Category: Tax and Taxation Law
Location: AZ
Subject: Re: primary home owned by SMLLC?

First, a single member limited liability company may not be the best protection. Charging Orders, which would be a requirement of most multimember LLCs, is not a requirement for single member LLCs. Also, many states have tenancy by the entireties ownership for residences owned by married couples. (For example, the deed might say "John Smith and Jane Smith, Husband and Wife.") This only allows a creditor a non-possessory interest while both spouses are alive.

Secondly, the transfer of the property to the LLC would result in a carryover basis from your spouse. Since the LLC could be a disregarded entity for tax purposes, you might still qualify for the $250k exemption.

You definitely should check this out with a good tax and business lawyer.

My web site also has more information to help you: www.taxesq.com

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Estate Tax in New Jersey

How can my mother reduce her estate so my inheritance is below the threshold for Estate Tax in New Jersey. She has a will making me executor & beneficiary, annuities. a home in New Jersey & property in New York State. I don't think her estate is valued at much over the $675,000 threshold & is definitely below the $2M Federal level. I live with her in her home in NJ & I receive Social Security Disability benefits.

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Estate Tax in New Jersey

First, you need a more concrete valuation of your mother's estate. Second, you indicated you are on disability and therefore may have problems dealing with the estate or assets. I think you and your mother should both talk to an estate and tax attorney to plan for your financial needs as well as tax issues.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: disbursement of estate

My sister was named executor of my mother's will. Does she have a legal obligation to provide me as a beneficiary a verifiable accounting of the estate or submit any proof of accountability in her distribution of the estate? My mother lived in New Jersey and my sister lives there. I live in Florida .

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: disbursement of estate

First, you should ask for an "informal" accounting. The executor will give you a listing of the income and expenses. If it appears correct, you should accept it.

If you disagree with the Informal Accounting, you can hire an attorney to force an accounting in court. The problem with a formal accounting is the estate will pay a lot of money to the Surrogate for fees as well as fees for the attorney for the estate. This route should only be taken if absolutely necessary because it is better to have money in your pocket than the court's.

I hope this helps!

Ron Cappuccio

www.SaveYourEstate.com

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Estate Home Sale

As executor of my aunts will I will be selling her half of a home (in Passaic Co. NJ) to the woman who owned the other half of the property (tenants in common) and was granted a ''life estate'' for my Aunts half in the will. My siblings and I were awarded in the will my Aunts half of the property. The will states that the woman has a right to purchase this half for fair market value within six months and if price is not agreed on 3 appraisals will be performed and the average of half the total value will be the price. The woman's lawyer has suggested that because she has a life estate in the property and she is over 64 yrs of age that the sale price must be adjusted similar to an annuity. Their adjustment would drop the price to 36% of half of the fair market value of the property. We feel that life estate only allows her to live in the home until her death and that it does not give her any value in my Aunts portion of the property, hence if she wishes to purchase our half she must pay half of the fair market value of the property. Our present lawyer does not appear to agree with us. Should the price for the purchase of our portion of the property that will be given to the estate be fair market value without any adjustments?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Estate Home Sale

Your lawyer is right! Your interest is reduced by the value of the life estate.

Ron Cappuccio

www.SaveYourEstate.com

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Wills . Health care proxy

If my spouse and i had wills and, health care proxies written in the state of Massachusetts and we then moved to the state of NJ. Do our documents have to be re-written?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Wills . Health care proxy

When you move, you should always have your Will and Estate Plan reviewed by an attorney in the new State.

I hope this helps!

Ron Cappuccio

www.saveyourestate.com

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Question:
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Category: Tax and Taxation Law
Location: KS
Subject: Income Tax

Gifts from parents - is that money taxable?

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Reply:
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Category: Tax and Taxation Law
Location: KS
Subject: Re: Income Tax

There is no income tax to you on the gift when it is received. Nevertheless, you will receive the gift at your parents' basis. Therefore, if you sell the gift, you will pay income tax (capital gain) on the increase from the basis to the selling price.

Also, depending upon the amount of the gift, your parents may be subject to gift tax. Therefore, you should talk to your tax attorney before the transaction is made.

I hope this helps!

Ron Cappuccio
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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Leaving Property in a Will

If 2 names are on a deed (husband and wife) can one of those parties leave ''thier share'' of the home to another party upon their death or must the property all go to the other person named on the deed?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Leaving Property in a Will

Normally, when a married couple buys a property together the deed is titled "John Smith and Mary Smith, Husband and Wife." In New Jersey, this is called a "Tenancy By The Entireties." This is very similar to a Joint Tenancy with the Right of Survivorship. This means upon the death of one spouse the property becomes fully vested in the other spouse by Operation of Law. This happens automatically regardless of the terms of a Will.

I hope this helps!

Ron Cappuccio

Name: George

Subject: s corp shares

Question: i am interested in selling half my shares to my fiancee i need to know if a lawyer is needed or what paper work is needed thanks

Answer: George:

Why are you selling these shares to your fiancee? If you do, you need a Buy/Sell agreement and you should definitely consult a tax/business attorney.

I hope this helps!

Ron Cappuccio

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: 18 year old left house in the will

Okay this may sound like a dumb question but I'm writing this story about an 18
year old boy who is adopted by his grandparents since birth. They live in a
small suburban house. The grandparents die leaving the house to him. He is still
in high school and has no basically no money or anything. What should he do?
Sell the house?

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Reply:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: 18 year old left house in the will

Because the beneficiary is 18, he can legally own the house. Are you sure that
his grandparents did not leave him any other assets? If so, they can be used to
maintain the house. If not, he should speak to a respected adult to help him get
a local lawyer.

The lawyer can help him with the estate, selling the house and finding a good
investment adviser to invest the proceeds.

I hope this helps!

Ron Cappuccio

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Will & beneficiary

My Uncle has made out a very simple will leaving my brother and myself
everything to be split equally. My Uncle has named only myself as the
beneficiary on his life insurance policies - wanting only me to receive the
money from the policies. Does he need to make any adjustments to his will to
ensure that only I receive the life insurance monies? Am I obligated to share
this money with my brother and or his family? This is not want my Uncle wants.

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Reply:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Will & beneficiary

A Will determines how the probate assets are treated. Since the life insurance
names you directly as a beneficiary, you would be entitled to the proceeds.
Likewise, if an account were a joint account, the survivor would receive the
account on your uncle's death, regardless of what is stated in the Will.

The best thing you can do is encourage your uncle to go to a good estate
planning and tax attorney to make sure his estate is set up properly.

I hope this helps!

Ron Cappuccio

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: JT w/ROS

This is a really BAD IDEA. If your daughter has credit issues or a judgment, it
can apply as a lien against the property. Also, if she gets married, you will
have to deal with her spouse.

You should call your estate tax attorney to help you properly plan your estate
including the proper way of titling this property.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Tax and Taxation Law
Location: PA
Subject: $1.00 house

I purchased my fathers house from him before his death, (which was under a
year). The tittle was transferred to me listing the sale price as $1.00. Do I
have to claim the appraised value of the house on my federal income taxes next
year, and pay taxes on that value?

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Reply:
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Category: Tax and Taxation Law
Location: PA
Subject: Re: $1.00 house

First, you do not have to pay income tax on the property unless you sell it.
Secondly, if the property was gifted to you, the property would be recaptured
into your father's estate and you would receive a stepped-up basis. You should
talk to your estate and tax attorney to handle this.

I hope this helps!

Ron Cappuccio
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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Surviving Spouse NJ

Our home is in only my husbands name. If he dies will the house automatically
be mine in NJ, or should my name be added to the deed?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Surviving Spouse NJ

No, even though you would be the surviving spouse, you would not have a right to
the property. Your marital share would depend on the amount of the estate,
whether you have children with your husband, and most importantly what it says
in your husband's Will. You and your husband should talk to your Tax and Estate
Attorney to decide what is best in your particular circumstances.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Tax and Taxation Law
Location: MD
Subject: Capital gains tax on property

MY mother has given my brother and I a house free and clear. It is not our
primary residence. When my brother and I go to sell the property will we owe any
capital gains tax

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Reply:
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Category: Tax and Taxation Law
Location: MD
Subject: Re: Capital gains tax on property

ABSOLUTELY! Since the property was a gift, you received a "carryover" basis.
This means the basis in the property is the same as your mother had. The
difference between the sales proceeds and the basis is capital gain.

Depending upon your circumstances, either you or your brother may try to make
this your primary residence for 2 years to take advantage of the $250k capital
gain exception.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Tax and Taxation Law
Location: MO
Subject: who pays estate tax

if I receive a large life insurance payout from a friends death, who has to pay
the estate taxes if his estate has very little real tangible assets left and
very little cash. Do they then make the recipient pay it?

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Reply:
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Category: Tax and Taxation Law
Location: MO
Subject: Re: who pays estate tax

If the insurance is paid to you directly, it passes outside of the estate. Most
states do not tax direct beneficiaries. You should talk to your estate planning
lawyer to analyze the specific details of your case.

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Inheritance a corporation

My father passed away recently and was the sole owner of a corporation that has
no assets except for a 2 family house that was in the corporation name/owned by
the corporation.
The property has apparently been fully depreciated over the years...all the
allowable deductions were used? I'm not sure what this means.
As the heir of the estate, I inherited the corporation. Does the value of the
property get stepped up to the current market value, resulting in no corporate
gains tax owed at the time of the sale of the property or sale of the
corporation?
Basically I want to sell the house and was told I would owe a corporate gains
tax because the house was in the corporation name and not my fathers.

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Inheritance a corporation

You will get a step-up in the basis of the stock in the corporation. The
corporation does not get a stepped-up basis in the house. This means if the
corporation is a C corporation (filed a US 1120) the corporation will recognized
gain on the sale of the house but you will not recognize gain when you are paid
a corporate distribution liquidating the corporation. In the other hand, if the
corporation has an "S" election (files a US 1120S) then there should be little
Federal Tax.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Rights of executor of estate to sell family property.

My sister is the executor of my mother estate. We all agreed to her so that we
can sell the family home. Can she sell the house without the signature of the
other siblings or do we all have to sign the closing papers

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Rights of executor of estate to sell family property.

Usually, an executrix has the authority to sell the assets of the estate. First,
in NJ there is a restriction on the sale for the first year because NJ
Inheritance and NJ Estate Taxes must be escrowed.

If the will provides for a specific beneficiary for the property, then the title
company require signatures.

I hope this helps!

Ron Cappuccio
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Grandmother

My Mother passed away years ago. Now, her mother (my grandmother) just passed
away. In her will she left everything to her three surviving children. My
mother was taken out of the will, so now my brother and I do not receive
anything. I don't think this is morally right but is there any legal way for my
brother and I to claim anything?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Grandmother

It is difficult to address this issue. First, people have different views of
their "heirs." It appears that your grandmother took a position known as "per
capita" at the children level. This mean each surviving child is left an equal
share. Most people select "per stirpes." In that case you and your brother would
have shared in your mother's portion.

You should speak with a tax and estate lawyer to review the Will and the
specific circumstances of its execution. You need a lawyer but I do not have
high hopes for your matter.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Estate trust fees

I am executor of my aunt's will and and she directed that a substantial amount
of money be left in a trust with named trustee for the care of her pets. Does
the estate have to pay the legal fees to set that trust up or does the money
come out the trust itself?

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Reply:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Estate trust fees

Pet Trusts are becoming popular for people to assure their pets are cared-for.
The Will normally has a trust as part of it or there can be a separate trust
prepared for the care of pets.

Normally, the legal fees related to the operation of the trust are expenses of
the trust. Nevertheless, the exact language in the Will needs to be reviewed to
determine what the estate must pay. You should definitely seek the help of a
good estate tax lawyer.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Tax and Taxation Law
Location: TN
Subject: Income Taxes

My father's estate is getting ready to be distributed to the heirs. Is the
money received from the estate considered income and subject to federal income
tax or any other tax? Most of the money in the estate is from insurance
policies but some is from his pension at work. They paid the insurance to the
estate because the beneficiary was his wife who died in the same accident.

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Reply:
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Category: Tax and Taxation Law
Location: TN
Subject: Re: Income Taxes

Usually, the distribution of the estate assets is not taxable income. Certainly,
the insurance proceeds are not subject to income tax. Interest earned by the
estate, as well as income, pension and IRA proceeds are typically subject to
income tax by the recipient.

You should check this with your estate attorney.

I hope this helps!

Ron Cappuccio

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: cutting out one child

We would like to omit one child from our will. We will acknowledge him as our
child; do we need to leave him a certain amount of money in order to deter him
for filing a suit after our death?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: cutting out one child

First, to omit a child you do not need to leave the child anything. The Will
should simply acknowledge the child and specifically state that you do not want
to leave anything to that child. Unfortunately, even if you put a clause in the
Will prohibiting litigation, since the omitted child has nothing to lose, the
child can challenge the Will. One argument would be "undue influence."

You should talk to an estate and tax attorney to address this for you.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Inheritance Laws re: IRA Rollover

My Father and Step-Mother planned to divide their assets, upon the latter's
death, to his 3 and her 2 children equally. My Father passed in January 2006.
His IRA, which equaled 50% of their total assets rolled over into my
Step-Mother's IRA. Her IRA named only her daughter as a beneficiary. My
Step-Mother recently passed in March 2007 and her Estate was divided 5 ways
except for her IRA, which my Step-Sister, as sole beneficiary, intends to keep
those monies herself that were in her Mother's IRA, 75% of which were rolled
into her Mother's IRA from my Father's IRA only 1 year earlier.
Do I and my 2 brothers have any legal rights to our 3/5ths of the monies that my
Step-Sister inherited as beneficiary of her Mother's IRA, as most of that money
came from my Father's IRA (Estate) just 1 year earlier?

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Reply:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Inheritance Laws re: IRA Rollover

I am sorry, but since the IRA passes by the beneficiary designation outside of
the Will, you clearly lose (outside of unusual circumstances.) Unfortunately,
this problem could have been prevented by good estate planning. These problems
are commonplace and reflect the person probably just wanting a "simple" and
"cheap" Will and fighting the attempts at Estate Planning. A little bit of extra
time and legal expense would have produced the desired results.

I wish I could be of more help!

Ron Cappuccio

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: executor service

Can I be an executor if I have had a past bankruptcy. It is my mothers will.

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: executor service

Yes, you can be the executor of an Estate even though you had a past bankruptcy.
If you are continuing to have issues with creditors or taxes, you should address
these issues with your mother's tax and estate planning attorney to assure they
are planned around.

I hope this helps!

Ronald J. Cappuccio

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Category: Tax and Taxation Law
Location: NJ
Subject: New Jersey estate taxes

When my father died in 2002, he left part of his estate to his two daughters, my
sister and me. There was no NJ estate tax due, since the bulk of the estate went
to my mother. When my mother died in 2004, I never filed an estate return
because in 2003 my sister and me had transferred her assets to us for estate
planning purposes. Now I understand there's a look back period, so I must file.
Her estate should end up under the $675,000 limit, unless we must include the
inheritance we received from our father's estate. Do we need to include this?
We received directly from our father an annuity and a C.D. Thank you for your
help.

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Reply:

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Category: Tax and Taxation Law
Location: NJ
Subject: Re: New Jersey estate taxes

You are correct that NJ has a 3 year look-back for gifts in contemplation of
death. Therefore, even though it appears there will be no Federal Estate Tax,
there may be NJ Estate Tax.

You should immediately contact an estate attorney to help you with this matter.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NY
Subject: Probating a Will with the Court

My Mother made a Will and it states that my stepfather is allowed to live in her
home. If he sells the home, the proceeds go to her daughters and the same
applies upon his death.

The deed is in my Father's and Mother's names. My stepfather hired a lawyer and
he now wants to redeed the property into his name only because he is just now
trying to set up an estate plan because according to him, he is a very sick old
man (87 yrs. old) and has cancer. He told the lawyer that his wife (my Mother)
didn't make a Will. He knows very well that she did because he was present for
the reading of the Will.
My Mother had appointed me as Executrix of her Will.

Since it appears that my Stepfather isn't abiding by my Mothers' Will, would it
be wiser for me to wait until he passes on to probate the Will in Court? I
believe that if I probate it now, he could contest it.

I would appreciate any assistance you can give me re the above.

Thank you.

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NY
Subject: Re: Probating a Will with the Court

You must see an Estate Lawyer IMMEDIATELY! You should show the Lawyer your
mother's Will and a copy of the Deed. If the Deed is in your father (not
stepfather) and mother's name, when your Dad died the property would
automatically be devised to your Mom. Unless it was retitled as a joint tenancy
with your stepfather, he has no right to the property upon your mother's death.

This is very fact sensitive and delay only hurts you.

I hope this helps!

Ron Cappuccio

_________________________________

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Question:
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Category: Tax and Taxation Law
Location: PA
Subject: Gift Tax

I understand my mother can gift me up to $12,000 in a calendar year. Can I
receive additional gifts from other members of my family as well, or is $12,000
per year the most I can receive? My uncle wants to give me a monetary gift this
year. I already received one monetary gift this year from my mother.

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Reply:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Would my son get an inheritance

My sons father passed away & so did his great grandfather. Since my son is the
great grand child and his great grandfather left all his grand children an
inheritance, would my son receive an inheritance since his father is not living
to receive any?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Would my son get an inheritance

Your son may be entitled to receive his father's share. Frankly, the only way
this can be answered is by reading the Will. You need an Estate and Tax attorney
to help you.

I hope this helps!

Ron Cappuccio

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Follow up Question to

The answer is the same. If the property was held as a "tenancy by the entirety"
the property passed to your mother by operation of law. That means outside of
the Will. You mother can then gift it to whomever she wants and you are not
entitled to anything.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: deed vs will

I have rented my grandmother's house for 29 years, with the promise of ownership
when she passes. Her will states my ownership very clearly. She had a massive
stroke 2/07. My step-grandfather has always been angry with her wanting me to
have the house. One month before she died, somehow he managed to add his name to
the deed. She never would've done this, if she was in the right state of mind.
Not a month after her death, I get a letter from him telling me I have 60 days
to vacate! This whole thing ''smells fishy''. What can I do now?

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Reply:

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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: deed vs will

You should IMMEDIATELY discuss this matter with an Estate Attorney. Your lawyer
will want to see the Will and the Deed in question. For a person to deed
property they must be mentally capable. You would have to argue your
grandmother's incapacity in court.

Estate Litigation is usually messy, expensive and emotionally charged. You
should have this matter looked at right away.

I hope this helps!

Ron Cappuccio
_________________________________

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Death, no Will

My sister passed, no spouse, owns nothing, has about 160.00 in bank acct. and
has credit card debt in her name only. No Will. Are her children responsible for
credit card debt?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: Death, no Will

Unless her children were signers or owners of the credit cards, they have no
liability.

I hope this helps!

Ron Cappuccio

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Question:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: living wills

My husband has 2 children from a previous marriage, and I have a niece and nephews I'd like to include as a beneficiary of our estate. I'd also like to avoid inheritance tax for my niece and nephews. His children and my
nice are grown, and the nephews are under 10. Do I need a will and a trust? Do we need 2 separate wills
and trusts, or can one work?

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Reply:
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Category: Probate, Trusts, Wills & Estates
Location: NJ
Subject: Re: living wills

Yes, you absolutely need a Will. You probably need a Trust as well. Without a Will, your assets will follow the laws of Intestacy. In New Jersey, your husband's children and you will be beneficiaries. The additional problem is once
the children reach age 18 they are entitled to all of their inheritance. If there is a Trust, this can be delayed and controlled for their benefit.

Your estate would pass to your Husband and your parents (if they predecease you, your siblings.) Your Will could direct how your assets are divided and a Trust can provide you with control.

You and your Husband should seek a tax and estate planning attorney to assist you.

I hope this helps!

Ron Cappuccio

Name: Doug

Subject: "Buying into" a business

Question: Hello,

I am asking this question for a member of my family. They are interested into
"buying into" a small business; in short, their aim is to invest 50-75K into a
currently operating small business with a constant return. They hope that a
portion of profit that the business draws in acts as this "constant return".

In a way, it is like a simplified corporate bond. They do not wish to take an
active role in management, and I believe they may not like the idea of being
financially responsible within an LLC or as a partner. They have no wish to
establish or run a business themselves.

I have suggested a peer to peer loan at a set interest rate and payment schedule
at one year or less (as opposed to three or more). They are not entirely excited
by this idea.

What do you recommend?

Thanks!

Answer: Doug:

Tell your family member to look elsewhere for a "safe" investment. Most small
businesses fail. Even if this business turns our to be successful, unless your
family member is going to take an active role in the business, he could be the
subject of a "squeeze-out." This technique is varied, but the active owner can
simply raise his own pay and benefits and not pay your family member.

I suggest an investment with more protection. Nevertheless, if your family
member is insistent upon the investment, make sure he has a good tax and
business lawyer to negotiate and represent him in the entire transaction.

I hope this helps!

Ron Cappuccio