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I Don’t Trust My Trustee. What Can I Do?

It is important to understand that a trustee is a fiduciary and is held to a higher standard of duty.  It is imperative as a beneficiary of a trust that you read every word of the trust and understand the circumstances under which the trustee is to distribute money to you as the beneficiary. 

If you do not understand the agreement, seek legal counsel so that you’re sure you understand the terms under which the trustee should/may/can/must distribute money to the beneficiary.  As you can see from all the different words that I used, every trustee has different discretions depending on the four corners of the trust document.  There is no one size fits all, so it is imperative that you read and understand the terms of the document and what discretion the trustee has.

Once you understand the document if you still feel as though you’re not getting transparency from the trustee you can always request accounting.  If the trustee does not comply with the request for the accounting of the trust you can then file an action in the Orphans’ Court in your local county to force the trustee to provide you a copy of the accounting to understand what money has been distributed from the trust and under what circumstances.  If you have reviewed the accounting and are still not satisfied that the trustee is fulfilling in his or her fiduciary duty, I would look to the trust document to determine if there is a trust protector.  

Many trusts nowadays will incorporate in them a trust protector who is often another law firm or professional fiduciary who can assist the beneficiaries.  It would also be imperative to read every word of this section to understand what the trust protector can and can’t do and also seek counsel if you still do not understand the specific terms of the documents.  

Because there are so many different styles and types of trusts it is virtually impossible to provide a specific direction to beneficiaries who feel that the trustee is not acting in their best interest, but the steps provided herein provide a starting point for the beneficiaries to feel that they have a voice and a say.  In certain circumstances the trustee may have sole and absolute discretion to do whatever he or she wishes, but even in those circumstances understanding what monies have been paid out and your rights under the document is very important. 

Please seek assistance from an attorney who specializes in trust and understands the “in’s and out’s” of trust documents in order to be able to provide advice on what you can and can’t do within the terms of the trust.

If you would like to learn more about trusts and how they can benefit your family, please give us a call at 717-845-5390.

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I Am a Beneficiary of an Estate. How Long Will it Take For Me to Get My Money?

This is a question that we receive at least once a month if not more in our office.  Individuals who were named in a Last Will and Testament as a beneficiary, once they realize that they are a beneficiary, want to know how long it will take for them to receive their inheritance. 

The probate process in the Commonwealth of Pennsylvania is actually a very straight-forward process.  Many states in the country have a very complicated process that individuals have to go through, but Pennsylvania is not one of them.  However, that does not mean that an individual who is named as a beneficiary will receive their money overnight because there are a lot of things that have to occur before a beneficiary can get the money that they are entitled to under the Will.  

In the Commonwealth of Pennsylvania, there are requirements of an executor that he or she must comply with in order to ensure that he or she will not be personally responsible or liable for the taxes or to the beneficiaries.  For example, an executor must provide notices to heirs as well as advertise the estate in the local newspaper and local legal journal to provide notice to creditors to start the statute of limitations for creditors to come forward with a claim.  The executor must also get date of death valuation letters from every institution who holds an account or had an asset of the decedent at the time of their death.  

Once the executor and the attorney for the estate receive all the date of death letters, they are then in a position to begin to prepare the Pennsylvania inheritance tax return.  Once the Pennsylvania inheritance tax return is prepared and filed it can take the Department of Revenue up to one year to review and approve the return.  It typically takes 6 to 9 months for the approval process but can take up to 1 year.  Typically the attorney will prepare receipt and releases for each and every beneficiary if the estate is going to make a partial distribution to the beneficiaries prior to receiving the approval from the Department of Revenue.  

It is always my recommendation to the executor not to distribute all monies to the beneficiaries at this point because the Department of Revenue still has to sign off on the appraisement and the tax return agreeing that they are not looking for any additional tax in the estate.

It is also worth noting that there is a significant time delay currently with the Department of Revenue and receiving notice back of the inheritance tax and that the appraisements are okay. As of September 2020, we had filed appraisements October of 2019 that we still had not gotten final approval back on. This is significant, because although the normal lag time is five to six months, we are currently seeing about a 10 to 12 month delay in receiving the appraisements back from the Department with final approval currently.

I always recommend to my executors that they not make final distributions and have the beneficiary sign off on the receipts and releases/family settlement agreement until we have the final paperwork back.

It is obvious that in the current times, In light of COVID and the state having to close for a period of time and not getting to any tax returns, the time frame from a beneficiary to receive their money under current times is fairly significant. However, this is not normal, and under normal circumstances the final appraisement certainly would be quicker.

 It also is a case by case basis as to how much we can distribute before receiving the final word from the government. In some situations, when there’s a close family, they will distribute more with the partial distribution than in other situations. In a case where it is contentious and there are beneficiaries who are not family or who have caused nothing but issues, we will often recommend that we not distribute anything until we get the final word from the Department. In these cases, under the current situation, it could take a year or more before we are in a position to be able to do that. 

It is important to know that in a situation where somebody does a living trust or a Grantor trust in the Commonwealth of Pennsylvania and retains control, an inheritance tax return is still required to be filed. That means that even under a trust administration, if we are waiting on the Department to approve the inheritance tax return, the time frames would remain the same. I say this because many people think that probate is the problem, or that it is the fault of the local Register of Wills or Orphans’ Court, but in reality, that is not it at all, we are at the mercy of the Department of Revenue for final approval of the inheritance tax return. 

For any questions or assistance through this process, please contact us at (717) 845-5390. We would love to help you.

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How Can I Avoid Probate? 

Can I avoid probate?

Can I avoid probate?

A week probably does not go by in my estate planning and elder law practice that I do not hear this question.  We spend a lot of time in our weekly workshops in our office answering this question and also much of our time during our free consultations also discussing this in detail.  I believe that the major reason why people make this their primary question is because of a lot of information that is out in the mainstream, the media, from national companies or national spokespeople who often urge people to avoid probate at all costs.  

I was very fortunate several years ago that I was able to travel the country training and teaching lawyers all over the country.  It was an extremely enjoyable experience and I learned and grew tremendously from it.  One of the main things that hit me during my time educating and teaching is that each and every state in the country has very different rules. 

Most attorneys are only licensed in one state and typically do not get licensed in multiple states because of the exams and costs that are associated with it.  It became very clear to me over the years that each state is very different in regards to its probate rules as well as how difficult probate is. 

Many of the national trust companies and national spokespeople live and come out of states where the probate process is very burdensome, overwhelming, arduous, confusing, expensive, and time prohibitive.  In those states, it makes a lot of sense to take steps in order to be able to avoid probate so that their clients do not have to go through those processes and spend the time and cost involved with it. 

Several very good business individuals understood what a valuable opportunity it could be for them to be a spokesperson or to advertise living trusts and other opportunities to avoid probate.  Rather than take the time to research each state’s rules, they make blanket statements and characterizations that seem to apply to every state but in reality do not.   

Yes.  There are certainly ways to avoid probate, and if the situation is correct, we will often make recommendations to do things such as creating a trust or having access jointly owned with another individual or using beneficiary designations on accounts.  In our workshops, we spend a lot of time talking about these and many other opportunities to avoid probate and how to take advantage of them.  

My concern is that without proper advice and guidance, oftentimes these tricks and solutions often aren’t necessary and can be overkill.   

If you are interested or believe that you are interested in avoiding probate for the sake of avoiding probate, please come to one of our upcoming workshops to learn not only about probate but also about the options that we would use to avoid probate and pros and cons with those. 

It is imperative that people be provided good advice in regards to this and any implications and complications that could come from decisions that are made.  Remember, in Pennsylvania avoiding probate does not equate to avoiding inheritance tax. 

If you would like to learn more, please give our office a call at 717-845-5390.   

 

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In-office or virtual?

A18CFFAF-14DB-4B8B-8237-DF7C9C1563ABAs we have previously posted in other blogs and through social media posts, Bellomo and Associates is now open. However, we are only accommodating in-office meetings on a limited basis.

Each attorney is taking one day a week of in-office meetings and four days a week of phone calls and Zoom meetings. Our paralegals are also taking meetings as scheduled, and we will ensure that only one attorney or paralegal is in the office at a time conducting meetings.

There is certainly no question that some people have very strong opinions about whether they want to meet in person or virtually. However, there are certainly several others who don't necessarily have a very strong opinion and who have asked us whether they should meet in person or whether they should meet over the phone or through Zoom or another video conferencing capability.

My personal opinion is that Zoom or video conferencing offers us the best of both worlds, which is the ability for us to see each other and for the clients to see my screen and any and all documents that I want to show them. Clients are also able to drop off paperwork ahead of time, and my team will upload that information into their matter so that I can show their documents on the screen as well.

Because of this, I personally love the option of video conferencing or meeting, because it gives us the ability to see each other and interact but keeps us safe as we are not in person and running the risk of infecting each other or our loved ones. Phone conferences are certainly better than nothing and still allow us to take the information necessary, but I believe it loses the personal touch that in person or video still allows us. I don't mind phone conferences after we have met each other and there is already a relationship, but prefer not to do a phone conference for the first meeting or when we need to be able to read each other’s expressions and body language or to be able to view documents together.

Ultimately, nothing beats face to face, and if a client has a strong opinion about wanting to come in, we are certainly able to accommodate that. However, if a client does not have a strong opinion and is willing to go either way, I would recommend that they use the Zoom option.

Thank you for you continued support and trust.  Please don't hesitate to reach out to us for any questions you may have about our process and getting your estate planning done.  You can call us at (717)845-5390.  Fill out our simple form by clicking here and we'll call you.  And you can always join us for any one of our upcoming workshops – just click here to RSVP for the one that works best for you!

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Is a DNR the same as a Living Will?

D19640FB-0D83-4AD2-8DFB-631449A58DF3_4_5005_cThe short answer is no, they are not the same.  A DNR stands for a DO NOT RESUSCITATE order and a Living Will is a completely different document that is used during a very different time.

A DNR should be entered into at your doctor's office or in the hospital, not at your local estate planning and elder law attorney's office.  

Typical estate planning documents that an attorney will assist you with would include a financial and medical power of attorney as well as a Last Will and Testament and maybe a Trust of some type.  The confusion often lies in the fact that in a medical power of attorney, you will often see a Living Will as a part to the document. 

This is collective known as an Advance Healthcare Directive if medical power of attorney and living will are together in one document.  The Living Will does not kick in until the individual is "end-stage medical."  While there is a very long medical definition for this term, I simply like to state it as when two qualified physicians put in writing that there is no realistic hope of recovery and that you will always remain vegetative, comatose, permanently unconscious and terminally ill.  A medical power of attorney, living will or advanced health care directive are often documents that are obtained from your estate planning and elder law attorney and not from your health care provider. 

On the other hand, a DNR or DO NOT RESUSCITATE order is intended to let emergency and other medical professionals know whether or not they should resuscitate you.  Methods often used for resuscitation would be things such as defibrillators, breathing tubes, ventilators, CPR and other invasive techniques. 

The DO NOT RESUSCITATE order comes into play when the heart has stopped beating or the person has stopped breathing.   The medical power of attorney, on the other hand, comes into play when the person simply cannot answer questions for themselves.  That could be for numerous other reasons, such as being under sedation or incapacitated, unconscious due to an accident, or unable to speak, etc. 

Certainly, it does not necessarily mean that the heart has stopped beating or that you have stopped breathing.  The Living Will does not kick in until end of life, but the heart is often beating, sometimes due to heroic and lifesaving measures, but the DNR will prevent those “heroics” if that is your wish. 

We truly believe that it is imperative for you to talk to your estate planning and elder law attorney about the estate planning documents as outlined above as well as discuss with your doctor about a DNR order.  While you are discussing the DNR order, we would also recommend that you have a conversation with your healthcare professional around a POLST (Physician's Order of Life Sustaining Treatment).  These are documents that will be obtained directly from your doctor and they will be able to assist you with the nuances of how they work. 

We hope that this article provided some insight into what a DO NOT RESUSCITATE order is and how it is different than a medical power of attorney and Living Will.  If you would like any further information about these items, please contact our office and we'd be more than happy to assist you.  You can call us at (717)845-5390 or click here and fill out our simple form and we'll call you.

 

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