Lawyer issue

Parent Cafe
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Random thoughts

W was put into a position of becoming successor trustee over her mother’s trust and executor of her S’s estate in 2016.

Your sister will have to obtain a federal tax id (employment identification number or EIN) to open an estate checking account. Banks won’t’ open estate checking acct without an EIN…S can’t use her or your dad’s SSN for estate checking acct. Talk to new attorney/CPA about process, it’s pretty easy, can be done online.

All monies from dad’s accts before death, or from sale of personal and real property, life insurance, etc should go into estate checking acct. Don’t commingle money from dad’s monies with your or sister’s personal accts. While waiting for monies to come in (eg sale of property), your sister should talk with attorney if she needs to advance her own funds to estate checking to pay incoming bills (eg utilities on real property… MIL’s house was in somewhat cold climate and required heat/electricity to be kept on so house stayed warm/ pipes didn’t freeze)). When time came to settle estate/trust, W as trustee/executor was first to be paid back… advancing of funds was considered an administrative expense and had high priority, meaning W was first in line to be paid.

Your sister should keep meticulous financial records. Hopefully your sister is good with keeping track of income/expenses, balancing a checkbook. Hopefully sister and you can play nice. One thing lawyer advised W was to keep her other sister informed. Every month W sent out detailed accounting/summary of all actions that W had taken in past 30 days. W would call sister and they would discuss/clarify monthly summary/accounting. It made for a very smooth sailing when W wrapped up both estates.

Hopefully mess with attorney is straightened out quickly as even when ducks are in a row, probate process tends to drag out. Good luck.

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I don’t remember an EIN in one case, but this is a nice explanation.
https://www.otacademy.com/article/setting-up-estate-account

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@partyof5 Maybe they should close accounts with a death certificate, but dad’s banks will not. I went to one of them - a credit union - with my sister. We have it all planned that as soon as she is the executrix the manager (a former classmate) will be setting up the estate account from dad’s account there and merging his two other accounts from other banks with it, but we can’t do a darn thing until she has that official designation. All three already have made copies of his death certificate.

@twoinanddone We had absolutely no problem with his life insurance either. It was through his union membership, but then via Prudential. The only beef I have about it is how much he was paying for so little coverage. That seems like highway robbery to me. He’d have done just as well (or better) putting that much into a bank account for my sister and I!

@ECmotherx2 No, the $900+ doesn’t include writing the will. Dad had all of his stuff including funeral expenses pre-paid. That was extremely nice of him - plus he got what he wanted. I’m sorry you had issues with your mom’s house, etc, too.

@Jugulator20 Thanks. I had been looking a bit up online and trying to get sis to be willing to just do some of it, but that’s where we differ in personalities. I’m very much an “I can do this” person and she isn’t. She refuses to do anything at all without the lawyer (or tax accountant, but we both want that for dad’s taxes - he owes back years). I did the insurance stuff, got his monthly subscriptions/supplements stopped, and coached her through cancelling his TV, etc. I went with her to the head bank and she did the others for what could be done there. If I’d been in charge I’d have probably skipped over the lawyer back when she started stalling and just gone ahead on my own. Now I’m coaching her through getting another lawyer - though let her pick one out as she knows the area better. I wanted her to do this sooner, but it wasn’t until I had to sign another waiver that I had the leverage needed.

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The old lawyer has been stalling for a very long rime. Is there a chance that she has lost the original of the will?

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My H is a trust and estates attorney - in NY. As a result, I have gained some knowledge about the area, although it is not what I practice as a career.

H would never hold an original will if the family asked for it back. He even met a client’s son at a parking lot one weekend and gave him a will, but he did make the son sign an acknowledgement that he had received it.

I am curious as to what actual work the first lawyer did. In some counties in NYS, there is electronic court filing and you might be able to check and see what, if anything, was filed. Even in non e-file counties, surrogate files are public records and your sister can go to court and check the file. Since there is a will, the original should have been filed, along with a petition for probate and waivers of citation (the document you have been asked to sign, which essentially acknowledges that you got a copy of the will and are not going to contest it), as well as a proposed decree which, in your case, would identify the executrix and list her duties and limitations. For instance, if someone dies with a pending personal injury case, the decree would generally allow the executrix to be substituted to pursue the case but would not allow them to collect any settlement money without court approval. There could be limits on selling a house, too, with a requirement that the money be deposited and distributed per the will or that the deed be changed (since your son is getting one house).

If nothing is filed in court, then it might be that she has lost the original will, as another poster suggested. If you don’t get the will this week, send her a certified letter demanding the original will back so that it can be probated. I am not certain why the new lawyer is unwilling to do this. How much more would he charge to make a phone call or write a letter?

Last note - as to the dumpster. Many, many years ago, H wrote a simple will for a retired civil servant who had never married and lived in the home he’d grown up in. He died and the executor, a friend of the man, decided to get a dumpster and hire some day laborers to just throw out everything because the dead man was a hoarder. The first day the dumpster was there, the executor picked up an old Playboy magazine to toss out and an envelope fell out. It held a stock certificate for many shares of Coke. He found another envelope in a different magazine. He sent the laborers away and called H. It took the executor, H and I three months, working nights and weekends, to sort through the entire house. As the stock certificates, gold certificates, etc. were found, I was spending pre-Internet time researching where to turn them in and marshal the assets. Ultimately, it turned out that there was $2 million worth of stocks and bonds, etc. in that house, all of which went to the man’s only brother. He gave the executor a nice payment and hired H to do HIS estate planning. H is still doing the work for the extended family. Our takeaway is never just get a dumpster!

Good luck to you. I feel badly, as an attorney in NY, that one of my cohort is treating you badly. I hope it gets resolved soon.

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I guess I’m not positive if she has the original will or lost it. Perhaps that’s why she’s been stalling this past week and needs to review the file at home? I don’t know.

Since I was just asked to sign another waiver Nov 8th, I doubt the three we signed (me, sis, nephew) have been submitted. Nonetheless, Monday we can head over to the county seat to see what’s there - or not. H is used to handling many court things with his Civil Engineering job. It’s not quite the same, but he’s a terrific Staff Weenie (proudly wearing that moniker), so we’ll take him along.

I wish my dad hoarded valuable things. His coin collection (and some silver) are it. He will have some semi-valuable things with old computer “stuff” that he kept and many would have tossed. Sis plans to go through it all, checking google and ebay, and going from there. That’s where she has more patience (and time) than I do making her the ideal executrix. She and dad would talk about his stuff a lot. I tried to meet him for meals out rather than spend much time in his house (typical paths and stench of a Hoarder house). Sis has been cleaning quite a bit already presuming no one desires typical trash (kitchen trash, decades old basic bills, etc - she goes through every one meticulously). She’s very in tune to what can be collectible (esp having Hoarder genes herself) that if she considers something trash, it most certainly is. Dad would have opened his lunch (canned food, frozen food, etc) and tossed the package somewhere on a pile. No one wants that.

We had hoped to be able to sell any of the older potentially collectibles this Christmas season. Original lawyer has told her she could do this. I’m ok with it (the only other one with a financial interest in it) since she’d be keeping any proceeds in a totally separate account to put into the estate account once she has one. We both know we’ll need that money to pay dad’s taxes and debts. She won’t do it though - too afraid of getting into trouble with the state. Such is life. At this rate, maybe next Christmas.

ETA I do know the check I wrote out to the Surrogate’s Court Sept 19th for the filing has never been cashed. This past week sis was told the court doesn’t take personal checks. Staff Weenie H called that specific Surrogate’s Court the same day she was told this. They definitely take them, so who knows why she was told they don’t or if something was lost in communication.

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@Creekland -

I don’t believe that the courts in NYS take personal checks, only those drawn on attorney accounts or estate accounts.

When I filed a small estate proceeding for my aunt, I paid the $30 fee in cash. Even though I am an attorney, they would not take my check as it’s not an attorney account. I also needed the court paperwork to open the estate account, which I had to do in order to collect the proceeds from my aunt’s co-op sale, even though I was the sole beneficiary. I had to probate the will because my sister was specifically disinherited. If I hadn’t, she and I would have been joint distributees in intestacy and I would have had to share with her. My aunt didn’t want her to get anything.

When my H files for clients, he has them give him a check for the filing fees and then he writes the check to the court. I am curious that they told your H (love Staff Weenie, you should make a t-shirt) that they take personal checks. Maybe they meant checks drawn on an estate account?

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@techmom99 Now I’m super curious, but of course it’s Saturday so I can’t get an answer. H called the Surrogate’s Court office itself and asked if they would take a personal check. The person answering the phone said they would check and came back saying yes, they would. Do you think this would be the case if one were filing without a lawyer vs with? That’s the only “difference” that could come to mind at the moment.

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@creekland -

I just asked my H. He said that if someone was filing without an attorney, they would have to pay by money order, certified check or cash and that personal checks would not be accepted. We deal with the downstate counties. If you are upstate, maybe they relax the rules a little bit?

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In general, the reason one sometimes needs to cling to the process as written, is when there is potential for dispute. You don’t seem to have that. You and Sis agree on getting rid of hoardings and you care less about splitting some $100 gained from finding a treasure.

I think transferring the house to Nephew is outside the estate matters. There are times when you can move to settle with a copy of a will attested to be same. But that needs more research.

The matter is less about a personal check and more why gal1 didn’t know, didn’t act properly. I’d sit in front of the new guy and have him explain exactly what applies now, what can be done. It would (at this point,) be worth a small consult fee. He may not charge, depending on time already spent with Sis.

You dont expect much net. Unless this costs you a lot out of your own pocket, I’d be inclined to not DIY. let the better atty navigate this swamp. Emphasize expediency first, getting it done. Ask him, separate issue, about any mortgage refund or charging gal1 for the delay.

The house could probably be xferred to Nephew later, maybe a $1 deal, depending on state laws.

Executrix is about “chain of responsibility.” She’d be, eg, charged with getting taxes done. But the two if you dont seem to be in conflict.

I’d worry less about whether the original is lost and more about what can be done.

Seems to me, you two could have handled this without a will. As his two heirs, in basic agreement. The house complicates a bit, but probate would have cleared that. But it is what it is.

We all hate this legal murkiness.

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The deed to the house can’t be transferred until an executor or administrator is appointed, at least not in NYS. As of now, title to the house is in the name of a dead person. Dead people can’t contract to sell or transfer their property, an estate representative needs to do it.

@lookingforward does present an interesting option. If you and your sister agreed not to submit the will to probate, a petition to appoint an administrator in intestacy could be filed. Once an administrator is appointed, the property would be divided amongst distributees or heirs at law. In NYS, these would be the spouse and children first. If a decedent doesn’t have those (including grandchildren if the children pre-deceased), parents would be next, followed by siblings and their children. If none of those exist, you go further afield to aunts, uncles, cousins and the like. The problem with doing that in this case is that there is a house that was bequeathed to a grandchild. In intestacy, this would not be honored and the sisters would inherit it and have to agree to give it to the grandchild.

Another issue that I am not sure has been touched on is whether or not a real estate appraiser has been retained to provide the date of death valuation of the houses, as that value would be the basis of the home, meaning that if it is sold, the capital gains taxes would be on the difference from that value to the sale price, not from the purchase price to the sale price. An increased basis, which usually happens when a house is owned for a period of time, results in lower taxes on the gains. Has either attorney addressed this with you, @Creekland?

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Ok, now I see it’s two houses. Not you transferring to Nephew the one left to you. Sorry.

But still, “real property” has a process. Either you or Sis could be Administratrix, if in agreement. If the will says Nephew gets one house, whoever’s admin could distribute the estate that way. I dont know if it’s too late to forget the will.

Probate can take longer, but you and Sis are the only children, right? No grandchildren of a deceased sibling?

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@Creekland
When W first met with attorney, one of the questions my W had was if he had any idea about what legal costs/fees could amount to in order to wrap up both MIL’s trust/SIL’s probate. Paraphrasing his response, the costs/fees will be for most part determined by questions/issues that W raises and he has to respond to.

As an example SIL had a safe deposit box. It was important to gain access to see if there was a will present. We live in CA, MIL/SIL lived in Oregon. W opened estate/Trust accts at a branch of bank in CA that was same bank SIL used in OR. W did this because OR branch would then have everything in there system they need to establish W’s authority to act. When W asked attorney’s office about gaining access to box, paralegal said that they could help. Understand what “help” meant…

Attorney charged $400/hour billed in increments of 10 minutes. His paralegal billed rate of $100 hour billed in increments of 10 minutes. The legal fees to have attorney’s office gain access to safe deposit box would have been something like this:

Email W sent to paralegal raising issue of safe box access: 10 minutes of paralegal time ($16)

Paralegal calling bank to see what bank needed as far as documentation: 10 minutes of paralegal time ($16)

Paralegal drafting letter to bank for attorney review 10/20 minutes of paralegal time: ($16-32)

Attorney review and okaying letter 10 minutes of attorney time: ($64)

Paralegal emailing letter back to W for W’s review and ok: 10 minutes of paralegal time ($16)

Law office sending letter by first class mail to bank: ($20 to mail a letter) $20!!!

Paralegal calling bank to set up appt to open box: 10 minutes of paralegal time ($16)

Paralegal going to bank (and back to law office) when box was opened (someone has to be present when box was opened) one hour of paralegal time ($100)

Cost to have box drilled opened: $150

Paralegal emailing W with results of what she found out: 10 minutes of paralegal time ($16)

W’s estimate of law office “help” to open box was approx $450.

When W opened estate checking acct, she asked about gaining access to safe deposit. They told her to call branch in OR. She did, spoke with bank manager and explained that she was sending me up to OR to oversee the removal of house contents and wondered if they would let me be present when box was opened. Manager told W they could accommodate her if W wrote a letter. When I was sent to OR, it took me some time but I was able to find the box key, met with manager, presented letter and had no problem gaining access to safe deposit box. Actual cost: $16 for initial email to paralegal raising issue of safe box access.

The above was just one of many, many examples where W was able to minimize legal costs. I suspect there are probably many things that you/your sister can do without “help” from attorney to minimize legal costs/fees. Good luck.

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Not all attorneys charge that way. It can be a flat fee, tiered based on work done.

OP is, for the moment, over her head because of gal1. One step at a time.

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I agree about various ways that attorneys charge, but as W is in CA and MIL/SIL lived in OR, W was between a rock and a hard place. W did do telephone interviews with three attorneys before she hired one. It was kind of hard to go lawyer shopping under circumstances.

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My H generally charges a flat fee with the agreement that if something becomes more complicated than originally thought, the charges could be adjusted. For instance, if the client says that all of the people who have to be cited are going to sign the waiver and not contest the will and then someone does contest and it becomes a litigation matter, the fee will increase. In some cases, he will charge an hourly rate but that’s generally where the client asks for it because they think it will be cheaper. As suggested above, there are certain things a client can do to bring the costs down. For instance, the family can collect the death certificates and present a completed inventory of property, along with deeds and other documents, and a complete family tree so the lawyer doesn’t have to do that.

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No one has mentioned anything about selling the house (mine) except that it can’t be done until my sister is executrix and I give her permission - putting the funds into dad’s estate - or I can do it after the estate closes and it becomes mine. It has not been appraised, but the guy who wants to buy it (a neighbor) has offered 25K. He will be tearing it down due to its condition and mainly wants the land it is on. I had expected to counter offer somewhere around 40K and see what happened.

Lawyer 1 said the house being transferred to my nephew won’t need anything as it’s a gift. When mom/dad divorced dad kept that house. He hasn’t sold it because he’d have to give my mom 2K and each of us daughters 1K of the proceeds and his view of that was “over my dead body.” It’s also in bad condition, but my nephew is living there now and wants the place. It really needs to be torn down and probably violates any sort of habitation code if there is one, but it’s rural and no one seems to cares. Lawyer 1 said since dad is giving (not selling) this to his grandson, the first court order doesn’t apply and no money goes to anyone. Grandson gets the title when the estate closes.

Nothing else has been discussed that I’m aware of. My sister or I have been getting all other things done with his accounts (or trying to get them done). The lawyer was supposed to file the estate and officially get my sister the executrix paperwork she needed to close accounts and start selling his things. After bumbling around a bit (well beyond when she said they’d be ready) we signed waivers. Mine was last at Sept 19th. Just this past Monday (Nov 12th) one of my sons received a copy of the will in the mail since he’ll be getting $1000 (if the money is there at the end, of course). He got one with one of his brother’s name highlighted, so I assume all three got one in the mail - with just the wrong names highlighted if that meant it was their copy… I know my nephew received one. They were mailed out Nov 8th - the day my sister told the lawyer we wanted to go with someone else. I don’t know if the mailing was before or after their speaking, but that really doesn’t matter. No waivers were requested of my guys. They have no intention of contesting anything.

There are no safety deposit boxes or anything similar. He had a safe in his basement that he gave me the combo for. All that was in it were some of his coins/silver. We’ve gone through it already. Those things belong to my sister. We changed the combo in case anyone else had it.

Without any sort of contract I have no idea if this lawyer is flat fee or hourly. I guess she can decide. My sister has no idea either.

This is our first parent to pass away. My uncle has tried to help offering advice as he was executor for his mom/dad and he tells us what this lawyer is doing is nothing similar to his experiences. I hear the same thing from my co-workers, but we’re in a different state (uncle’s experiences have been in FL). Uncle has been trying to get my sister to switch since the end of Sept (same as me). My sister is finally on board.

Now we just need the switch to actually happen.

If that court doesn’t accept personal checks, I’m miffed that the lawyer had me make one out in Sept - giving me the amount, etc. One would think she should have known. If they do accept them as H was told on the phone, I’m miffed she lied about it. If there is no statewide requirement, I guess we’ll have to wait and see. This is a far northern rural county.

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“flat fee or hourly”

The other option I’ve had presented is percentage of estate. This made no sense for us with the estate in question, and I didn’t hire that attorney.

So sorry for these problems. Good luck.

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While in OR, I interviewed three realtors and several contractors for W. The realtor W hired was recommended by attorney. It turned out realtor (and her husband who was retired police captain) are pillars of the community… well known and respected. W had a lot of confidence in them. We have bought sold property/hired contractors before and the home selling process in OR is pretty much same as in CA. Based on recommendations from realtor and after W researched out contractors licenses, liability insurance, workers comp, etc, W contracted with painter, flooring people, roofer, etc. A bonus was realtor recommended not giving contractors key to house… realtor unlocked and locked up house everyday contractors were there and provided daily reports of progress. The work got done, easy peasy. W also made contacts with insurance agents, had conversations with CPA, with various utilities companies, gardeners, others. W is sure attorney was frosted that he was not “helping” W with these matters.

There was even an issue regarding oil leases in Texas and MIL’s trust owing back taxes. At first meeting with attorney, W was told that this issue would be put on backburner for now, but that they work with Texas attorney whose fees are similar and who could help W out with this matter. When I returned from OR I found a folder with info about oil leases. After reviewing W contacted oil company and was eventually told that MIL had been mistakenly listed as owner of these leases. With that info, W contacted taxing authorities in TX and verified that despite repeated notices of delinquent taxes, MIL never owed any back taxes. It was all a big mistake. Cost of clearing up the mistake was three US postage stamps. W could only imagine the thousands of dollars in legal fees that the OR and TX attorneys would have charged to only discover this whole thing was a simple mistake.

Dont get me going about the inventory

If the lawyer you hired charges ala carte style as W’s lawyer, it may benefit all heirs if executor gets more proactive in some respects.

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Respectfully, some experiences eont apply to OP in NY. And will confuse.

Creekland. The nephew. If he one day sells his inherited house, tax on the profit could be based on [sales price minus value on inheriting it.] The appraisal is suggested to confirm “present value.”

But that may be pricey. There can be a way to use another source.

You need legal advice re selling your house as part of the estate or after it passes to you.