Anthony S. Park

When one of the heirs won’t leave the family home, what can you do? It’s a pretty common situation. For example, mom passes away leaving three adult children. One adult son was living with her when she passed away, and he doesn’t want to leave.

Why heir won’t leave

The top reason is pretty straightforward: it’s like having free or reduced rent. Sometimes there’s the feeling of entitlement. As in, “I was the one taking care of mom during her last years, so what’s the big deal if I stay in the house?”

Then, there’s that litany of “dog ate my homework” type of excuses: I have an injury and can’t move right now; I don’t want to move my kids in the middle of the school year; I’m too busy to deal with a move, etc. We’re not saying these excuses are justifiable, we’re just saying that we’ve heard it all!

Can you evict an heir?

The short answer is yes, but it is an uphill battle. Evictions generally tough. You deal with notice requirements, assumptions that tenants have rights, extensions, etc. It could take many months to years to evict a tenant in a normal situation. Add to that, the complication that the heir is partial owner. In our example where mom passed away with three surviving children, that adult son is still an heir to one-third of the estate, even if he leaves the home. So, now it’s psychologically more than just evicting a tenant, it’s evicting a one-third owner.

In addition to a frustrating situation, evicting your sibling is probably pretty awkward! (“Happy Thanksgiving, sister; pass the turkey. And oh, yeah - here’s your eviction notice”). A situation like this can devastate families. A professional tip to avoid the awkwardness is to use someone else as the “bad guy,” such as a realtor or professional executor. If the home is a condo or part of a homeowner’s association, maybe make a call to the manager to discuss the eviction. If this works, it can save a lot of money in legal fees. The quicker the eviction is taken care of, the less money wasted. It’s expensive to let someone reside in a home for “free.”

How to buy out heirs

More often than you’d think, the resolution is to pay the heir to leave. It doesn’t feel great to pay someone who is supposed to leave anyway but take a look at the cost-benefit analysis. It might be cheaper than the headaches, legal fees, mortgage payments, etc. As much as you might not want to pay him, it’s probably the best solution. It could also make those Thanksgiving dinners less tense!

Paying an heir to leave doesn’t mean you have to start with the highest number. Maybe start by offering to pay for the moving costs. Then offer more, as needed, until he actually leaves.

This is where having a professional executor comes in handy – he or she can do the awkward work for you. If you are interested in learning more, check out my book on Amazon, “How to Hire an Executor.”

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The Netflix movie, “I Care a Lot,” shows a nightmare scenario for Solo Agers. It is a dramatization of what could potentially happen to our Solo Ager friends.

Below we’ll separate 7 myths from reality in this movie. Spoiler alert! If you want to watch the movie first, then save this blog to read after you’ve seen the movie. We’ll be discussing mostly just the first 30 minutes of the movie (the set-up) but we will touch on parts later in the movie.

The sole job of the main character, Marla, is to act as a guardian for people who are incapacitated. Elderly Ms. Peterson is deemed to be incompetent, and Marla is appointed to take over her affairs. Marla represents what a bad guardian can look like. Ms. Peterson’s situation shows how brutal it can feel if you are a vulnerable Solo Ager.

1. “Pain in the rear” patients get nudged into system

In one scene, Marla talks to the doctor about how Ms. Peterson is a pain in the rear. Marla prefers for Ms. Peterson to get nudged into the system and out of her hands.

I would say that yes, this is real. It may not happen as maliciously or overtly as the movie, but doctors, nursing homes, social workers, and courts/guardians are human. We don’t like dealing with people who are a pain.

What happens when the doctor, social worker, etc., thinks a patient is a pain? They are more prone to medicate the problem or pass the patient onto the next facility or next guardian.

2. Solo Agers targeted

In the same scene, Marla is speaking with the doctor and assistant. They describe Ms. Peterson as a "cherry.” It’s clear from the context that a “cherry” is a wealthy Solo Ager who is vulnerable and has no family.

I’d say that this is real. Solo Agers aren’t necessarily targeted by bad guy movie characters, but by advertising, financial advisors, and prepaid funeral plans. There are a lot of eyes on wealthy Solo Agers. This kind of person is more likely targeted than someone with a family to help or less money to grab.

3. “The System” = judge, doctors, homes

Is there a gamut through which the Solo Ager gets pushed?

There’s a scene where Marla is in court, and the judge knows her. Even though Marla is doing bad things, they are a bit chummy, and the judge seems to trust her. Marla also has ongoing relationships with the nursing home directors, who want to fill their rooms while Marla is looking for places to put her Solo Agers. There are also scenes showing kickbacks where money is exchanged, and Marla gets paid in stocks.

Yes, this is real too. Again, it's not a dramatized as the movie, but it’s easy to imagine subtler versions. There is a system, and these professionals know each other. Once you’re a victim in the system, it’s hard to get out. You can get pushed from the court to the guardian to the nursing home to the social worker. Even Ms. Peterson’s dangerous and powerful son couldn’t get her out of the system.

4. Court-appointed stranger

In an early scene, Ms. Peterson’s morning tea is interrupted by a knock on the door. Marla is at the door telling her that she is Ms. Peterson’s court-appointed guardian. She tells Ms. Peterson to come with her or she will have to deal with the sheriffs.

It is possible to get stuck with a stranger as a court-appointed guardian. We had a case where our client expressed that she wanted her attorney or family member to be her guardian and the court ignored it.

5. Hearing without the solo ager?

Can all of this happen without a Solo Ager being able to stop it?

There were courtroom scenes where Ms. Peterson was not present to speak up for herself. It seems that Ms. Peterson had no idea what was going on until Marla knocked on her door.

This is a myth, at least in New York. I’m sure it could happen in some states or in an emergent circumstance. However, in New York, judges have gone to GREAT lengths to have the Solo Ager at the hearing, especially now that platforms such as Zoom can be used. They have the right to be heard, to testify, to make their wishes known. I’ve even been in situations asking the judge to end the testimony sooner because our person is in pain, etc. But the judges are adamant that the hearing is important.

6. Taking her phone

There is a scene where Marla takes away Ms. Peterson’s phone as she is ushered into the nursing facility. It was like Ms. Peterson was in a prison, because she was not allowed to have contact with the outside world.

This is a partial myth. In New York, nursing home patients are allowed to have their own phones. But if the phone breaks, runs out of battery, runs out of plan time, etc., is it SUPER hard to connect with a patient in a nursing home to replace or repair the phone. It’s not because the nursing home is trying to cut off communication; it’s just difficult to accomplish even small things when dealing with nursing homes.

7. Raiding the safe deposit box

As Marla takes control of Ms. Peterson’s life, she goes to the bank to raid the safe deposit box.

This is a myth. In New York, when an executor/guardian opens a safe deposit box, there is a procedure set up. The box opening has to be performed in front of two bank witnesses and all people present must sign the inventory of contents to submit to the court. In real life, there’s no way anyone can walk into a bank and get into a safe deposit box without abiding by the procedures.

Overall, it was a good movie. For professionals in our line of work, the first 30 minutes of the movie are probably the most frustrating. If you’ve seen the movie, please let us know your thoughts. If you are a Solo Ager watching it, don’t get stressed out that this is how life will be.

To learn about estate planning tips for Solo Agers, please check out my book, “The Solo Ager Estate Plan,” available on Amazon.

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Think it’s over? Even when most of probate is complete, the executor must hold a reserve.

Why keep a reserve?

Think of it as a rainy-day fund: An amount of money that the executor holds on to in order to pay unexpected expenses. Even after more than a year, unexpected things pop up - even with experienced attorneys involved. It’s impossible to have full certainty of what the final bills are for the estate without waiting a bit. Creditors, taxes, and accompanying legal/accounting fees can be a big deal. If the executor has no money left in the account, it’s not a good scenario.

In Episode 239, we discussed this exact situation. Our client was an executor. He didn’t take our advice to wait for the full tax clearance. Since he didn’t wait and distributed the money to the heirs, they were shocked and horrified to later receive an unexpected tax bill for over $20,000. This put the executor in a tough situation where he either had to ask for money back from the heirs or pay it out of pocket.

We had another case where the hospital creditors sued the executor for an unpaid medical bill. In this case, the lawsuit was frivolous. The hospital didn’t formalize their claim, and they were barred by the statute of limitations from being paid. They sued anyway, and the executor had to hire an attorney to defend the estate in court.

There was also a case where, long after the estate had been closed, an alleged “son” emerged and sued the estate for his share. The executor had to go through litigation to find out whether this really was the decedent’s son. Obviously, he needed money to pay for legal defense.

If you ever run into these situations, and you have a reserve, you’ll be very thankful!

How much is kept in reserve?

There is no set number, but it is a balancing act. The amount must be big enough for the executor to feel comfortable that he won’t run out of money in a bad situation.

But the amount should not be too big, as you want to get as much money as possible out of your hands and to the heirs. The executor is a conduit, not an investment advisor. As professional executors, we take a lot of things into account when determining the reserve amount. It’s an art and a science!

When to release the reserve?

Usually, it takes about a year to close an estate, and we hold a couple thousand in reserve. About one to two years after the estate is closed, we usually feel comfortable releasing the reserve. That should be enough time for any unknowns to shake out. However, even with the best planning, something could come up ten years from now. That is why I have attorney’s insurance for these kinds of situations.

In general, the statute of limitations is between three and six years. If the estate took one and a half years to close and you hold the money another one and a half years, then you’ll have more certainty that it’s time to release the reserve to the heirs. Sometimes heirs don’t mind getting the reserve later, because that second payment feels like a bonus.

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Should executors send funds by check or wire? This could apply to expenses or payments to the heirs at the end. As a professional executor, I’ll explain why we almost never send wires, only checks.

Successful checks vs wires

If everything goes well, wire transfers are faster (even faster than overnight checks). Wires are more convenient for the recipients since they don't have to go to a bank to deposit a check. Wires are more prevalent in Europe and most other countries; some don’t even know what checks are anymore. I haven't had anyone ask me to pay their inheritance by Venmo or PayPal yet, but I feel like that day is coming.

Again, wires are faster and more convenient IF everything goes right. So, let’s look at what happens when something goes wrong.

Lost checks vs wires

If you have a lost or misplaced check, you stop payment. Then you wait and re-send the check. It’s not easy to do, especially for large sums like inheritance checks. But it can still be done.

Have you ever tried to reverse a wire?  During a real estate closing, we had to wire funds from one closing to another. There was one wrong number in the wire, and it was gone! It took about four days for us to come back to the table to finish the settlement.

In other situations, it has taken months to reverse a wire. We’ve even had situations where the money has simply disappeared (neither the sending nor the receiving bank knows where it went).

We had a case involving heirs in Africa who demanded a wire transfer of the funds, since they did not have the infrastructure in place to receive a check. It was a six-figure amount, so we did a small test of a few thousand dollars to see if it went through. The funds ended up missing, even though it was through a very reputable source. To this day, that money is still gone. The heirs changed their tune about checks once the “test” transfer got lost.

Checks are also better for a paper trail. For estates, we need to account for every penny. That is usually easier with a paper check that can be signed and photocopied. There’s still a piece of paper involved in a wire transfer, but there’s not always proof that it hit the account. Sometimes the only confirmation you get is when the heirs say they received the money.

Even though the use of checks sounds archaic, there is too much downside to justify the convenience of a wire. When it comes to an estate, there are no gold stars awarded for speedy payments. The executor could be held personally liable for a missing wire.

As professional executors, we have the experience to know how to avoid these mistakes. To learn more on what a professional executor can do, check out my book, “How to Hire a Professional Executor”

 

Waiting for tax clearance is often the biggest delay in closing an estate. We’ll explain why tax clearance is so important and why it takes so long.

Why tax clearance is so important

No one wants IRS problems under any circumstances. In estates, the IRS is a top priority creditor. They need to get paid before anyone else gets paid. It’s important to know the final figures for the IRS before distributing to the other creditors and heirs.

If the IRS is not paid properly, the IRS will come after the executor and heirs later. In order to be paid, they will come after whoever has the money, which can include the heirs who received an incorrect distribution. The executor can also be held personally liable.

Let’s say you are the executor, and you neglect to pay the taxes properly. You cut the checks to the heirs and six months later the IRS says you owe another $50,000. Imagine asking heirs to give back some money to pay taxes. Those heirs are not going to return your phone calls no matter the amount of money owed.

Must file final returns to get started

Sometimes it is hard to get the decedent's final paperwork in order to make that final filing. It’s happened to us many times. We know there’s another W-2 or 1099 out there to finalize the return, but we don’t have them. If we’re missing documents, we have to request them from banks and other financial institutions. This process can take weeks, or even months, because these bureaucracies are not used to dealing with non-everyday situations like death. We often get shuffled around among different departments to get what we need.

Even worse, sometimes we have to request missing information from the IRS. This process can be brutally long. It takes a whole year just to get the tax clearance from the IRS. Imagine trying to request just one piece of paper. The IRS is overworked, and they don’t answer the phone. You end up filling out and submitting forms, then play the waiting game.

Sometimes filing the final tax return isn’t final. Even after filing the decedent’s 1040, from time to time you need ANOTHER filing (1041) to confirm that there are no capital gains on the sale of the decedent’s home.

Last bite at the apple

This is the IRS’s last chance to get money out of the decedent. Once the tax return is filed, the IRS takes a LONG time to review it and give a final answer. They know that this is their last opportunity to collect from this taxpayer. They examine a decedent’s return way more thoroughly than a living person’s return.

The IRS reviews more than a W-2, a 1099, and a bank interest statement. Within the Statute of Limitations, the IRS looks at social security withholding, payroll tax, income tax, capital gains, and everything in between. This just adds to the already existing delay in processing.

It is frustrating for the heirs to wait so long for a distribution; however, they seem to prefer to wait rather than to sign a statement saying that they will bear the responsibility if the IRS comes after them. When dealing with the IRS, you rush to wait. There’s not much of a choice.

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About six months ago, the court chose a court-appointed stranger for “Ms. H.,” a lovely solo ager who has named me executor in her will. In this episode, we are going to check in and see what’s happened since then.

To refresh, Ms. H. is unmarried with no kids and is somewhat estranged from her nieces and nephews. Ms. H. named me as executor in her will many years ago. She recently rekindled a relationship with a niece, who has been attentive to her.

Ms. H. is in declining health and was placed involuntarily into a nursing home. She asked me and the niece to petition the court to be her guardians to get her out of the nursing home and into the comfort of her own home.

Six months ago, when we petitioned the court, the court ignored Ms. H.’s wishes and appointed a random attorney (court-appointed stranger), instead.

So, what’s happened since then?

Has the court-appointed stranger contacted anyone?

Nope. Neither Ms. H., nor the niece, nor I have heard a peep since the court hearing. Up until the court hearing, the court-appointed stranger was very attentive in calling Ms. H. to make sure she understood the situation. Now, we’ve heard absolutely nothing.

In fact, Ms. H. and her niece didn’t even know the court had ruled against them and appointed a stranger. They were patiently waiting for the court to contact them. They had no idea the court-appointed stranger has been Ms. H.’s guardian for months. The only way they found out was because the niece randomly called me to ask a few questions about estate planning.

Has our Solo Ager moved home?

No. She hasn’t even heard from her guardian, let alone begun the process of exiting the nursing home. There is no indication of any movement on this.

Sadly, ever since the court hearing, Ms. H. has been hopefully waiting for signs that she will be released. She had been asking daily if today is the day that she will go home.

Unfortunately, the niece had to break the news that not only is Ms. H. not going home, but that neither she nor I are her guardians. (And that the actual guardian has been silent for the past six months).

What can our Solo Ager do now?

In her situation, sadly, there is not much Ms. H. can do. Perhaps in another six months, if there is no activity or contact from the guardian, it’s egregious enough to go back to court and ask for Mr. H.’s originally requested guardians. There’s no guarantee that the judge will agree, but after a year of no activity, it can’t hurt to try.

For now, Ms. H. is stuck with the court-appointed stranger. Unfortunately, a year in a nursing home probably feels like a very long time, and she just wants to go home.

So, how can others avoid this type of situation? For most folks, I don’t recommend a revocable trust, but, for Solo Agers, having a revocable trust makes sense. With a revocable trust, your chosen trustee can step in immediately, without having to rely on a judge to respect your wishes.

If Ms. H. had made a revocable trust, we’d have the power and authority to execute her wishes. We did recommend drafting a trust for her, but it never happened. We’re wishing Ms. H. the best of luck, and we hope we can give you a positive update on her case in the future.

We’ve talked about revocable trusts in a few prior episodes: Guardian vs Revocable Trust for Solo Agers and Getting Final Affairs in Order Before Death.

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If you have a non-US decedent, here are some documents that you’ll most likely need to get translated. Sometimes clients and also foreign attorneys approach us to explain to them what needs to be done.

Funeral bill

The court wants to see the funeral bill and whether it was paid in full. They need to know who gets reimbursed for the cost. This is important because the funeral home is a top-priority creditor of the estate. From a public policy standpoint, we want to make sure the disposition of the body is handled properly. The funeral bill is so important that it gets paid before the IRS gets paid.

For these reasons, the court wants to make sure that the amount is correct, and the correct person is reimbursed.  Therefore, proper translation of this document is critical.

Death certificate

Translation of the death certificate is imperative, as well. Obviously, the death certificate is needed for proof of death and date of death. The date of death is also a trigger for important legal deadlines.

Also, the death certificate may include important information, such as residence address, marital status, and informant. The decedent’s address determines which court handles the probate proceedings and the marital status helps tell the story of the decedent.

Additionally, the informant information will give us a link to a family member. The death certificate is really the first document that we start to build the probate case on. It needs to be translated properly so that we can read and understand all of the information, including the dates.

Foreign probate court file

The foreign probate court file is important to get translated. We need the entire court file, not just the foreign grant of probate letters. This file can be a lot of pages, sometimes hundreds.

Also note that the file is not just a bunch of photocopies from the court; they have to be exemplified. That is a special type of copy that is signed by the judge, then by the chief clerk, and then by someone else (triple stamped). It is expensive to have a file exemplified, and if it is voluminous, it will take a while for the court to prepare it.

Then, it will take a while for it to be translated. The court may also want the credentialed translator to sign an affidavit (you can’t just do it yourself on Google). This is a multi-step and costly process. Always check with the attorney first to be sure that an exemplified copy of the file is needed before you request one.

I recommend reading my book, “How Probate Works, “available on Amazon, so you can learn what may need to be translated if it comes from a foreign court.

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Sometimes, as professional executor, I must be a (reluctant) house flipper.

Why reluctant? It looks so fun and glamorous on TV shows! Renovating means time, money, and risk for the estate. That is not great for an executor. An executor’s job is to preserve value, pay creditors, and get whatever is left over into the hand of the heirs as soon as possible. I prefer to sell as quickly as possible, but sometimes we have no choice.

Low budget home renovation

When an executor is the house-flipper, it is almost always low-budget. Any misspent/overspent dollar is money out of heirs’ pockets. I have to make decisions that don’t cost the heirs their inheritance. Knowing that, I do the bare MINIMUM amount of renovation necessary to sell the house. Am I going to get a presentable countertop or the granite one? Am I going to knock down walls to make an open floor plan? No!

Am I going to scrub the mold out of the bathroom? Of course; almost no one will buy a house like that. Will I exterminate for pests? Yes, we have to! I do what I need to do to get it sold. I don’t spend more to get top dollar; I spend the minimum amount to get a reasonable buyer.

Oversee home renovation

As a professional executor, I must oversee the contractors, plumbers, movers, etc. I oversee who comes in and out of the home and make sure the workers are bonded and insured. That kind of project management can be challenging. Just imagine getting contractors inside to work on a co-op in the city. They have to come at scheduled times, and someone has to be there to let them in. And the heirs don’t have to deal with any of it when they hire a professional executor.

How to pay for home renovations

As a professional executor/house-flipper, I have to figure out how to pay for these home renovations. Who pays for this? If the estate is liquid, I can take the funds from the estate account. What if the estate doesn’t have the funds? I might have to call the heirs to ask them to contribute some money toward the renovations. That is not a fun job to do; it makes you feel like a solicitor. This a job that the heirs get to avoid if they hire a professional executor.

If the estate doesn’t have money and we can’t raise funds from the family, I arrange financing. This is not the ideal option, but there are different kinds of loans out there to help. If there is something in the house that absolutely needs to be fixed, as a professional executor, I do what needs to be done to fix it.

To learn more on what a professional executor can do, check out my book, “How to Hire a Professional Executor”

 

Clients often call asking us why their probate case is taking so long. Probate usually takes a while, but lately, it has become an even longer process. We will discuss three current, real-world situations to help you understand what your case might be taking longer than you thought.

Is there a backlog for probate?

As is the case for any bureaucracy (especially government), due to COVID/lockdowns, the courts have had limited staff and operations for over a year. This means the courts (which are generally not lightning fast anyway) are now playing one year’s worth of catch up. Probate court piles have been stacking up; it’s not as if people stopped dying.

On top of the daunting backlog, the courts are understaffed. Additionally, new clerks are hired who are not very experienced. Also keep in mind that many offices are working on a staggered in-person schedule. This leads to more delays and mistakes because there may not be enough experienced workers to provide solid training. The new clerks may have to wait much longer to get a simple answer from a supervisor who is working remotely. Meanwhile, the piles of files are stacking higher.

Can probate court change its mind?

Imagine the court (clerk, staff member, etc.) reviews your file, and requires a laundry list of changes from you. This is normal and happens often. But many changes are very time consuming, such as getting papers signed, translated, ordered from other courts, etc.

Even if we think the changes are unnecessary, usually it’s just better to grin and bear and do as court instructs. Arguing about the changes won’t make it go faster, so you comply. Now imagine by the time we file the requested changes the court clerks have cycled out or changed. Now we have a new clerk who says, “who told you to do it that way? I need you to do these other five things.” This often happens with bigger corporations where you usually do not deal with the same person twice. Typically, you get to know the court clerks over the years. But lately, the turnover has been unusually high for whatever reason.

Do courts make mistakes?

Yes, the court personnel are human and make mistakes, too. For example, probate court have SLOWLY adopted e-file system. Does e-file work smoothly? Not yet. We can file some things, but not everything.

We had a client who called us for a case status. He got really frustrated and called the court directly after we told him we are waiting on the court.  He called to ask court status of case; court replied that nothing had ever filed. However, we were literally looking at the computer screen showing the date that the case was e-filed and accepted. The poor client didn’t know what was going on: was his lawyer or the court lying to him? Thankfully, we put out the fire since we had receipts to prove the e-file.

These are some reasons we’re seeing as to why probate is taking much longer than usual. Hang in there; it’s a waiting game. And we’re waiting along with you

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As a Solo Ager, choosing who inherits from you is something you should think about. Should it be the person who was there the most at the end? Or someone who had more of a life-long relationship with the decedent?

Which relative should inherit?

You can be a Solo Ager and still have siblings, nieces, and nephews, etc. Should the person who inherits your estate be that lifelong “favorite” niece or nephew that you went to ball games with or sewed with?

Alternatively, there may have been a distant relative who was there for you at the end when things got tough. Perhaps it was someone who helped you with personal medical and hygiene needs. That kind of care creates an instant close relationship.

We deal with estates after someone has passed on, and we hear both sides of the story. There may be the niece who says she was close with her aunt for 40 years and then all of a sudden everything goes to Cousin Johnny. The other point of view is that Cousin Johnny, who never had a close relationship with the aunt, was the one who stepped up to care for her in the end. There is no right answer, but this is an example of both points of view.

Can a caregiver inherit?

In a similar scenario, rather than talking about Cousin Johnny, a hired home-aide or nurse was caring for the decedent in the end. Often, the “hired help” do get something from the decedent’s estate. We’ve seen butlers, live-in maids, and live-in cooks either inherit or not inherit. The family often underestimates how close the decedent was with their cook or maid. On the other hand, sometimes the home-aide overestimates his or her place and expects a large inheritance that will never come.

A word of caution for home-aides and cousins helping at the end: The courts may look into whether a beneficiary exerted undue influence on the Solo Ager when making the will. For example, when someone is so reliant on another person for daily care, they have reason to fear that the care may be withheld if they don’t sign a will naming the home-aide as a beneficiary. If the court finds that this is the case, the will might be deemed invalid.

Leaving money to a church in your will

In this context, we’ll use the word “church” to describe any religious or community organization. For many Solo Agers, the church provides a lot of comfort and community toward the end of life. When the Solo Ager lives far away from (or has outlived) their family, the church sort of becomes their family. The church may also be the one that you rely on to give you a proper burial and memorial service.

For these reasons, the church is often a main beneficiary. This may be confusing for relatives far away because they think they should get the money. But in reality, the church was the one meeting the needs of the Solo Ager at the end.

These scenarios should get you thinking about having a solid estate plan. For Solo Agers, it’s wise to get at least one version done now while you are unquestionably of sound mind. That way, there is a paper trail showing your minor changes along the way.

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