How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Ray Your Own Question
Ray
Ray, Lawyer
Category: Legal
Satisfied Customers: 40979
Experience:  30 years in civil, probate, real estate, elder law
8534270
Type Your Legal Question Here...
Ray is online now
A new question is answered every 9 seconds

Brother in law just passed. He is a retired from US Post Office

This answer was rated:

Brother in law just passed. He is a retired from US Post Office plus collects S.S. and has a
lien (garnishment) from IRS. He also has either 401 or ira. Will the IRS collect the debt
from the aforementioned? Also has credit card debt judgements. How will all this play
out. May not have a living trust but does have a boilerplate will that dates back to '92.
Family will look for any recent will etc if any exists. Location state of Hawaii. What will
happen if executor of the old will does not come forward and there is no other will or trust.
Will the court appoint an atty or executor and complicate matters and add cost towards the
estate if any assets remain?

Ray :

Hi and welcome to JA. I am Ray and will be assisting you today.

Ray :

If you have the will here and the executor is out of touch you can seek to be named executor.

Ray :

Once you are named executor here you file a notice to creditors and see who files a claim.

Ray :

The creditors that you list from the IRS to judgments would likely file such claims.You have to decide if the amount in the 401 or IRA exceeds the amount of the debts.If ti doesn't it may not be worth it to you to file for probate of the will.Certainly at least most of these creditors are going to file claims against the estate.

Ray :

Now that said if the IRA or 401k has a named beneficiary it pays directly to them outside of probate.So that depends on whether there is named beneficiary.

Ray :

You certainly can inquire through the postal service if there is a named beneficiary.

Ray :

Hopefully you may be the named beneficiary.In that situation the postal service has forms to complete and will likely want a death certificate in order to pay you.

Ray :

And you may also be able to find out how much roughly is in the account to know whether then probate is required and whether it is worth it to even open probate.

Ray :

Here is contact information for the postal service hr.

Customer:

I am only the bil. Decedent has brothers and sister. so if executor does not step forward will court appoint? Is beneficianry

Ray :

The court would appoint one of them the executor here.

Customer:

of 401 ira have to settle with the irs or is beneficiary home free?

Ray :

They would not if it passes outside of probate here.

Ray :

It's like insurance it passe to that person directly free of debts.

Ray :

It is my thought that unless there is a named beneficiary it may not be worth it to file the will for probate because the creditors will likely take it all.

Ray and 3 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

New question for above. This state has 100k or more for probate. Does


roth ira go thru probate if ira has named beneficiary or can it go directly


to beneficiary w/o the irs putting a levy or lien. The roth is more than


100k. As I understand if it goes thru probate then court will pay irs for


his back taxes but if passes directly to beneficiary then irs cannot put


lien or levy?

Good evening and welcome back. If the IRA here has a named beneficiary it passes directly to that person outside of probate and is free from any creditors in such a situation.This would include any taxes owed by the deceased person.


Unless the deceased person failed to name a beneficiary in which case it does go through probate.But again if someone was named here as beneficiary it passes straight to them.They would provide the death certificate to the institution and they would pay it to the beneficiary.

Thanks for letting me help you again.Please let me know if you have more follow up.Thanks again.

Ray and 3 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

one more pls. so it doen't matter if the roth ira has over 100k and the

states probate says that probate comes into picture if estate is more than

100k. in this case there's no other assets what so ever but let us assume that

there is a beneficiary named. thanks

 

 

 

I cannot locate any requirement for probate here if the IRA is over $100k.It should still pass directly to the named beneficiary and no probate necessary if there are no other assets here in Hawaii.

http://www.nolo.com/legal-encyclopedia/using-roth-iras-avoid-probate-30205.html
Ray and 3 other Legal Specialists are ready to help you
Customer: replied 3 years ago.


Thanks for the answers. Was having problem getting a bonus to you


but I think the problems has been solved. Pls advise if it did go thru.


 

Thanks so much and I wish you a happy thanksgiving.
Ray and 3 other Legal Specialists are ready to help you
Thank you for your positive rating of my service to you. Let me know if you need more help or have future questions. I will be here for you. Just ask for me by name at the start of your question - "Ray" .


Best wishes and good luck to you.

If it is not too much trouble, when you receive a Customer Satisfaction Survey from JA/Pearl in a day or two, please consider rating me highly (9 or 10). It affects my ability to continue to assist you and other customers on JA/Pearl and would be most appreciated.
Ray and 3 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

Ray, I have a new question or two.


1. If mother and daughter own a rental property (tenants in common)


does rental income just split and each reports I/2 each income or


is this considered a partnership or treated like a sole proprietorship.


2. I incorporated a business that I worked for approx. 40 yrs ago that


was dissolved. It was a subsidiary of a of a public company. In other


words I am using the same corp name. If I use the former co.


brochure, are there problems with copyrights etc whether or not the


parent co. is still in existence.


 

Hi and welcome back to JA. Ray here to help you again.

 

 

1. If mother and daughter own a rental property (tenants in common)


does rental income just split and each reports I/2 each income or

is this considered a partnership or treated like a sole proprietorship.

 

Usually they treat it like partnership and the income and write offs are on a single return and the refund or taxes due and then split 50-50%.

 

2. I incorporated a business that I worked for approx. 40 yrs ago that


was dissolved. It was a subsidiary of a of a public company. In other


words I am using the same corp name. If I use the former co.


brochure, are there problems with copyrights etc whether or not the


parent co. is still in existence.

 

There may well be although it would be up to the defunct company to claim those.So while there mighe liability in theory if the other company is defunct not sure if there is anybody to assert a claim.You may decide you will accept that risk here.Thats a judgment call on your part here.

 

Good to hear from you and thanks for letting me answer.I appreciate the chance to help you again.

Customer: replied 3 years ago.

Re question #1, do they have to get a federal tax id? For question #2 do you

think if I publish that I am new owner and intend to use materials of old co.

in national publications would help legally?

 

Yes they need a tax id number..
http://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Do-You-Need-an-EIN

#2 do you

think if I publish that I am new owner and intend to use materials of old co.

in national publications would help legally?

 

That might be a great idea here to lower possibility of claims.

Ray and 3 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

New question. both parents and daughter & son in law own a home in


equal share (1/4). There is a possibility of a settlement involving a child


and attorney for child has stated that home should be put in the estate of


the child paying back grandparents down payment of the home as a loan


repayment instead. At this point the grand parents would have to quit


claim their portion. Does this idea make sense, if not what would be your


recommendations. Child (4yo) has serious medical condition and requires 24/7. Under normal circumstances grandparents portion


would pass on to their daughter.


 


.

Welcome back to JA. Ray here to help you again.

You would want to set up a special needs trust and then you can either will it to the child or quit claim it into existing trust.This allows child to continue to receive SSI and or medicaid or other government funding.

Reference to that as an option..

http://www.specialneedshawaii.com/files/11714/What%20Is%20A%20Special%20Needs%20Trust.pdf


This way child has equitable title but not legal title as it is in the trust and doesn't count as a resource so benefits are not affected.

I appreciate the follow up question.Please let me know if you have more here.

Thanks again.
Customer: replied 3 years ago.

Will this be better than just having the property as is in adults name?

It is better if you want to provide for the child and don't trust the parents long term to provide for child.If you feel the parents can be truseted you can leave it to parents.

Here it comes down to who you want to leave it to and whether you trust the parents here to do the right thing and use it for benefit of child.It is a judgment call on your part.
Either is possible here legally..

Thanks again ..
Ray and 3 other Legal Specialists are ready to help you