Trusts & Estates Law/Probate/Will

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Question
Hello,

I just found out I was put down as executor of my father's will. We have a large family with a sister who is disabled who lives with him and has a trust set up recently after my Mom passed . My dad is in poor health.His will states everything is to be divided equally. He has some life insurance and several IRA's which have beneficiaries so there is no problem with that. Because the house is in his name I was told we would have to go through probate , but here's the problem....we are having trouble finding placement for my sister and when my dad passes my brother wants to leave her in the house with an aide. I told him we can't just let her stay in a house in his name when he has passed away. We can't put house in her name because of the trust and she will lose benefits.How long do you have after someone dies to situate the will and sell their property etc??? We live in PA.

Thank You.

Answer
Thank you for your question.  If your father lives in PA, you will need to contact a PA lawyer to find out the answers to your questions.

But as a general rule, if you are trying to keep your sister qualified for benefits, you are asking the wrong question ... (how long after someone dies ...).  Your father needs to set up either a special needs trust or a supplemental needs trust (which one depends on PA's laws) for your sister.  It can give her the right to live in the house without jeopardizing her benefits.  

If your father is too ill to see a lawyer to do this, you might be able to set one up before his death using what we in California call a "substituted judgment" petition.... you would get the Court's permission to set up a trust for him (substituting in for him).

If your father passes before you can get this done, you might still be able to establish a trust for your sister - a so-called "(d)(4)(A)" trust.  Although a (d)(4)(A) trust would still save your sister's benefits and allow her to remain in the house, it has certain disadvantages that a trust that your father could set up would not have.

Because these trusts differ from state to state, you need to contact a PA lawyer who specializes in "elder law" or "special needs trust planning".  Look at NAELA.ORG (National Association of Elder Law Attorneys) and specialneedsanswers.com (Academy of Special Needs Planners) to find a knowledgeable attorney who can assist you with this.

Good luck.
Janet

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Janet Brewer

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BE CAREFUL about taking legal advice from non-lawyers.

I am a licensed attorney in California. I am available to answer questions about probating estates, preparing wills and trusts, administering estates and trusts, forming family limited partnerships and limited liability companies, and establishing a wide variety of estate and gift tax-sensitive trusts (charitable trusts, children's trusts, irrevocable life insurance trusts, etc.).

I can also answer questions regarding the preparation of estate tax returns (Form 706) in taxable estates. Please note that I do not prepare trust income tax returns and cannot provide you with any information about that type of return.

Please note: I am only able to practice law in the State of California. I cannot answer specific questions about other states' laws; I can only provide some "general" information that may or may not apply to your situation.

Experience

I have practiced California estate, gift-planning, and probate law exclusively since 1991. I am certified as a specialist in estate planning and probate law by the California State Bar Board of Legal Specialization (there are less than 125 such specialists practicing in Santa Clara County and fewer than 7,000 practicing in California - out of over 170,000 lawyers statewide).

I have served as an Instructor in the CFP (certificate in financial planning) program at University of California Santa Cruz, teaching the estate planning segment.

Organizations
Silicon Valley Bar Association
Wealth Counsel
Wealth Advisors' Forum
Executive Committee Member, Solo and Small Firm Section of the California State Bar (appointed to a 3 year term by the California State Bar Board of Governors)

Education/Credentials
I received my law degree (J.D.) from University of Denver Law School in 1975. I was admitted to the Colorado Bar in 1975 and to the California Bar in 1977 (NOTE: although I am a member of the Colorado Bar, I am on INACTIVE status there). I earned an M.B.A. in 1982, and I earned a Masters Degree in Taxation Law (LLM) at Golden Gate University Law School in 2010 (with honors).

More at:
http://www.calprobate.com

Awards and Honors
2007, 2008, 2009, 2010, 2011, & 2012 - chosen as a "SuperLawyer" - one of the top 5% of Northern California lawyers practicing in the estate planning and probate area (www.superlawyers.com). Avvo Rating of 10.0/10.0

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