FAQ with Cook, Kennedy & Associates

Some frequently asked questions and answers from Cook, Kennedy & Associates:

QUESTION:  My mom passed away in April 2005.  She had a "Loving Trust."  I am 1 of 4 in the family.  Is there a time limit on how long the executor has power?  I heard it was 2 years then the next one in line becomes the executor.  Is this true?

ANSWER:  This is the area of law in which we practice.  The purpose of the trust is to avoid probate and taxes.  Normally it let's you end the estate much quicker.  Unless there is an abnormal asset or the trust requires property to be held for some reason, it should be done within 6 months to a year.  You need to speak with an attorney.  The Loving Trust was created by an attorney who is part of the National Network of Estate Planning Attorneys of which I am a member.  To give you any real information I would need to see the trust and the accountings.  You are entitled to a copy of the trust an accounting at least once a year.  You need to get it if you do not have it so that an attorney can help you sort this out.  Our office offers a free consultation as do some other law firms.  We would be happy to meet with you and your parents.  Just give us a call at 419-882-6285, extension 111 and to schedule your free consultation.  We also have free seminars that you can attend to learn more.  You can check the WTOL web site for a list of the seminar dates, times, and locations.  We recommend that you retain an attorney who handles both Estate Planning and Probate cases.

QUESTION:  If one family member has durable power of attorney for his mother, does a brother have any rights to know what is going on with her home, belongings, the way her money is spent, her accounts and what his brother is doing with everything?  Does a person who is durable power of attorney have to answer to anyone? Can his brother have a lawyer to make sure he is doing everything in his mother's best interest? And what if he isn't?

ANSWER:  A power of attorney has a right to do what ever the person who gave them the power of attorney can do.  The POA does not have to account to anyone under the POA.  However, if you have an attorney apply for you or another to be appointed guardianship of that person, a Court will have a hearing to decide who is appointed.  The Court will question how the POA has used the other person's funds, and if the Court feels the funds were used improperly, will appoint someone else as Guardian.  Either way, once a Guardian is appointed, you will have access to all of that information.  If a POA will not discuss the matters with other family members, I would be suspicious of what is occurring and would suggest a guardianship.

Our office offers a free consultation as do some other law firms.  We would be happy to meet with you and your parents.  Just give us a call at 419-882-6285, extension 111 and to schedule your free consultation.  We also have free seminars that you can attend to learn more.  You can check the WTOL web site for a list of the seminar dates, times, and locations.  We recommend that you retain an attorney who handles both Estate Planning and Probate cases.

QUESTION:  If a person leaves their home to their heirs, does the will have to probated?

ANSWER:  This is the area of law in which we practice.  If the property is left to them in the Will the answer is yes.  If the property was deed to them out right the answer is no.  If the person who died kept a life estate, you need to see an attorney.  I would need to see the deed to tell you for sure what need to be done.

Our office offers a free consultation as do some other law firms.  We would be happy to meet with you and your parents.  Just give us a call at 419-882-6285, extension 111 and to schedule your free consultation.  We also have free seminars that you can attend to learn more.  You can check the WTOL web site for a list of the seminar dates, times, and locations.  We recommend that you retain an attorney who handles both Estate Planning and Probate cases.

QUESTION:  I am 73 years old and recently sold a house which I inherited 18 years ago. My question is, must I pay capital gains on this house? I have never sold property before.

ANSWER:  This is the area of law in which we practice.  The basic rule is....If you lived in the home for 2 of the last 5 years the answer is no capital gains (and did not make over $500,000.00 in profit).  If you rented the home or it sat vacant for the last 5 years, the answer is yes on the appreciation over the value at which you inherited it.  You should talk to your tax accountant.

Our office offers a free consultation as do some other law firms.  We would be happy to meet with you and your parents.  Just give us a call at 419-882-6285, extension 111 and to schedule your free consultation.  We also have free seminars that you can attend to learn more.  You can check the WTOL web site for a list of the seminar dates, times, and locations.  We recommend that you retain an attorney who handles both Estate Planning and Probate cases.

QUESTION:  My wife & I have joint legal guardianship of our 2 yr old grandchild (parents signed him over). We do not have  a will yet.  If we die, we have been told that the grandchild will go to foster system.  Is this true?  In our wills, do we specify where child is to go?

ANSWER:  This is the area of law in which we practice.  The Court appointed you guardian and the Court will appoint the new Guardian.  If no one comes forward the child could end up in foster care.  However, as Guardians, you do not have the legal right to appoint your successors.  If you adopted the child, than you would have the right to state who you wanted to be guardian.  The Court always has the final say.  Many times I recommend that you adopt...because the Court always tries to reunite parents and children.   You could have this child for 10 years, and then Mom/Dad could go to Court to get child back.  The Court would return the child to Mom unless there was a really good reason not to.  Remember the good reason today is not necessarily a good reason tomorrow.  (example: Mom is drug addict...she gets rehab..Court would return child to Mom).  This would not happen in an adoption.

Our office offers a free consultation as do some other law firms.  We would be happy to meet with you and your parents.  Just give us a call at 419-882-6285, extension 111 and to schedule your free consultation.  We also have free seminars that you can attend to learn more.  You can check the WTOL web site for a list of the seminar dates, times, and locations.  We recommend that you retain an attorney who handles both Estate Planning and Probate cases.

These materials have been prepared by Cook, Kennedy & Associates, PLLC for informational purposes and are not legal advice.  This information is not intended to create, and receipt of it does not constitute, a lawyer-client relationship.  Internet subscribers and online readers should not act upon this information without seeking professional counsel.  Do not send us information until you speak with one of our attorneys and get authorization to send that information to us or until you have scheduled a free consultation with one of our attorneys.