Need some helpful advice please...

[shnncof]

What is the name of your state (only U.S. law)? NC

My mother passed away 1-31-12. She had a Will and an attorney was named to be the executor. He officially retired the day she passed away and could not deal with the Will. No 2nd person was named in the Will but my mom told me if for some reason the attorney could not do it, she wanted me to handle her Will. So, that is just what I am doing, but have some questions I hope I can get some helpful answers on.
First thing, I have 2 brothers and 1 sister. Sister is deceased and I know where 1 brother is. The other brother no one has seen or heard from in 20+ years but Clerk of Court said I HAD to find him for he along with all the other need to sign a form stating he does not want to be executor and accepts I am applying to be executor. So, after weeks of searching with no luck at all, I hired a private detective. He gave me an address for my missing brother but no phone #. I have sent letters and sent letters and he is obviousely not going to respond. What would my next step be? Can I put a notice directed TO HIM in the local paper where he lives or have the Clerk of Court send something stating if he does not respond he loses his right to apply as executor?
Secondly, my sister was to receive money upon my mothers death but she is deceased. So I assume her part rolls to her kids. She has 2, but she gave up her parental rights to them when they were little boys and they spent their life in foster care and possibly both were legally adopted but I am unsure. I found 1 and he is in a prison in PA. The other the private detective I hired to locate my brother I also paid to locate my missing nephew. He gave me an address but again no phone number. I have sent letters to him as well and no response. I was told whether adopted or not, they were entitled to their share of money since their mom, my sister, passed away. If the one missing nephew won't respond to my letters, what would be my next step them? Doesn't his share of the money go into a special account for him?
My last 2 questions are my dad owned stock. He passed 05-24-2005 and my mom was the beneficiary to the stocks. Neither ever mentioned how much stock or anything to us kids. In my moms Will she had all stocks were to be sold and put into the estate account to help pay any bills then distributed to named heirs. I found out that the stock was never actually signed over into my moms name when my dad died even though she was the beneficiary listed on the stocks. I have been told several different things on how it would have to be handled by the company and no answers have been the same. My dads Will named my mom as beneficiary to everything and an attorney handled everything and nothing went to probate or anything. So I was told to fill out a "waiver of probate" and fax it plus a copy of my dads death certificate to the company and they would transfer the stocks into my moms estate account. Another person from the company stated I would have to open probate for my dad, have the stocks changed into my moms name, then have them transferred into her estate account?? I only know the value of 1 certificate and it is $37,000 but was also told there are 4 more certificates but cannot be told the value or anything until made executor so have no idea what the other 4 certificate values are (stating this information incase it makes a difference as to what needs to be done). Where do I find the "waiver of probate form" and is the correct thing to do or must I open up probate under my father who passed away in 2005? The lady who said I needed to just fill out the "waiver of probate" told me to include in the letter his date of death and my address so is it just a letter I type up or a legal form? Also, there is an IRA, as far as I know it is a simple IRA. In her Will, she states any and all IRAs, CDs, Stocks, and etc are to be sold or cashed out and added to estate account to pay bills and whatever left to be divided amongst the named heirs. So do I have no other option than to have her IRA transferred to the accont? Was really hoping to not be hit by all the taxes and penalties from cashing it out but being how the Will stated it was to be cashed out and added to the estate account I was not sure if there was another possible solution to avoid the heavy taxes and penalties.
My apologies for so many questions and for being so long but these are the things I need answers to as soon as I can get them so that I can continue on handling the estate.Thanks for any and all helpful advice/information.What is the name of your state (only U.S. law)?What is the name of your state (only U.S. law)?

 

[anteater]

Without double spaces between paragraphs, this is difficult to read. so, forgive me if I miss a question.

But, overall, I would suggest that you retain an attorney to assist you.

What would my next step be? Can I put a notice directed TO HIM in the local paper where he lives or have the Clerk of Court send something stating if he does not respond he loses his right to apply as executor?

Why not ask the Clerk of Court again. I don't know NC probate procedure, but I have to think that, if you exercised reasonable diligence, the court will waive the requirement for a waiver from your brother.

Secondly, my sister was to receive money upon my mothers death but she is deceased. So I assume her part rolls to her kids.

Depends. Does the will say anything about what happens if one of the named beneficiaries is already deceased?

My last 2 questions are my dad owned stock. He passed 05-24-2005 and my mom was the beneficiary to the stocks.

What do you mean by "beneficiary to the stocks?" Do you mean that she was a designated beneficiary on the accounts themselves? Or that she was the beneficiary under the terms of the will?

Also, there is an IRA, as far as I know it is a simple IRA. In her Will, she states any and all IRAs, CDs, Stocks, and etc are to be sold or cashed out and added to estate account to pay bills and whatever left to be divided amongst the named heirs. So do I have no other option than to have her IRA transferred to the accont? Was really hoping to not be hit by all the taxes and penalties from cashing it out but being how the Will stated it was to be cashed out and added to the estate account I was not sure if there was another possible solution to avoid the heavy taxes and penalties.

I assume this means that the IRA itself did not have a designated beneficiary (?).

If there isn't, this is why you need an attorney. The will seems pretty explicit, but you would want to see if there are alternatives.

 

[curb1]

What did the attorney say when you notified him about being the "executor"? He should have given you some guidance. He can still be the executor even though he retired.

 

[shnncof]

"What did the attorney say when you notified him about being "executor"?

He said he gave up his attorney privledges and was not able to serve as executor therfor he renounced himself as executor. He refused to help us in any way stating he was not allowed to help us or give us advice or any information.

Does the will say anything about what happens if one of the named beneficiaries is already deceased?

The Will states my sister was to receive $1,000 and states nothing else in regards as to what was to happen if she was deceased. The Clerk of Court told me her share would go to her kids and that is why she said to find them but upon locating them, I was informed they were possibly both legally adopted or possibly just 1 was, and not just fostered, so I was unsure if it mattered if they were legally adopted or not. I just want to do everything correctly.

What do you mean by "beneficiary to the stocks?" Do you mean that she was a designated beneficiary on the accounts themselves? Or that she was the beneficiary under the terms of the will?

My mom was beneficiary on the accounts themselves and also my dads Will stated she was the beneficiary to the stocks in his Will too.My mom just never received any form to sign the stocks into her name and did not know she was supposed to. Now I am left trying to get the stocks transferred from my dads name into her estate account but unsure exactly what the proper process is. The stocks are with Ruddick Corp. and everytime I speak to someone there they tell me a different process: open probate for my dad who passed in '05 and have the stocks then transferred to my mom and then request they be transferred to her estate account?? OR I was told by someone else there to fill out a "waiver of probate" and fax it along with a copy of a death certificate and they would transfer the stocks to her estate account?? Unsure what a "waiver of probate" form is, or which process is correct?

I assume this means that the IRA itself did not have a designated beneficiary (?).

The IRA itself did not list my mom as the beneficiary or anyone else, but in my dads Will it states my mom was the beneficiary to the IRA.

The Will states specifically that all stocks, IRAs, CDs, Checking, Savings accounts, and all other sums of personal or real property not bequeathed, be turned into cash and put into an estate account to which any bills or debt are to be paid out of and any remaining sums of money in the estate account be divided among 7 named heirs.

So upon transferring the IRA into the estate account, I assume the penalties will still take affect on the IRA since it will have to be cashed out?

 

[anteater]

The Will states my sister was to receive $1,000 and states nothing else in regards as to what was to happen if she was deceased. The Clerk of Court told me her share would go to her kids and that is why she said to find them but upon locating them, I was informed they were possibly both legally adopted or possibly just 1 was, and not just fostered, so I was unsure if it mattered if they were legally adopted or not. I just want to do everything correctly.

If the will is silent on the matter, then North Carolina's anitlapse statute kicks in:

North Carolina General Statutes § 31-42 Failure of devises by lapse or otherwise; renunciation; 120-hour survivorship requirement, revised simultaneous death act, Article 24, Chapter 28A - Legal Research

If sister's children were adopted by someone else, I am inclined to think that they do not stand to inherit her bequest. But, as with so much else in this situation, you really could use a North Carolina attorney to confirm that.

open probate for my dad who passed in '05 and have the stocks then transferred to my mom and then request they be transferred to her estate account?? OR I was told by someone else there to fill out a "waiver of probate" and fax it along with a copy of a death certificate and they would transfer the stocks to her estate account?? Unsure what a "waiver of probate" form is, or which process is correct?

If your mother was indeed the designated beneficiary, then there should be no need to open probate for your father's estate. I can't tell you what they mean by a "waiver of probate" form. All I can do is suggest that you ask. From my point of view, copies of both death certificates, a copy of your letters testamentary confirming appointment as executor of your mother's estate, and a letter of instruction from you should be sufficient. I would ask to speak to a supervisor/manager.

The IRA itself did not list my mom as the beneficiary or anyone else, but in my dads Will it states my mom was the beneficiary to the IRA.

Ummm... You mean that this was your father's IRA and nothing was done when he passed away?

I'm sorry, but you really, really need competent counsel to help you out here.

 

[curb1]

I agree. It sounds like no one in your family is very proactive/aggressive. You need to hire an attorney and be willing to spend some money. These things need to be done in a timely fashion. If not then you spend the money an hire an attorney.

 

[shnncof]

Found out most of the answers to my first guestions. Adopted nephew that I paid a private investigator to locate IS legally adopted BUT the Clerk of Court said he is still entitled to my deceased sister's share of the estate.

Also, the Clerk of Court will send out a citation notice with the waiver of right as executor form to my brother the private detective found, I did call and confirm it was him, allowing him 30 days to respond or lose his right to be executor.

Finally got ahold of someone who knew what they were talking about in regards to my dads IRA. Turns out, I was given mis-information, my mom WAS the beneficiary to the IRA and upon my fathers death the IRA was put into her name and is currently in her name. I called the bank and was told there would be no issues in transferring the IRA into her estate.

Lastly, I found out a "waiver of probate" is nothing more than me writing a letter stating my father is deceased and my mom was the beneficiary but the stocks were never put into her name and that I request the stocks be transferred to her estate. Of course, I also was informed of the nice fee of 2% of total stock value for "waiver of probate" AND a 2% fee per stock certificate value also to replace the 4 certificates we are unable to locate. Once transferred to her estate I call and have the stocks sold. Why my parents never kept up with all the certificates or never got the stocks into my moms name to avoid this mess is beyond me.

The ONLY thing I still am having an issue now with is, my nephew who was adopted, that was found by the private detective, is to also sign a waiver of his right as executor. I was told last week by the same Clerk of Court he did NOT have to sign since he was adopted, but told today he DID. I have done everything I can to get him to respond and he hasn't as of yet. The Clerk of Court is willing to send a citation notice, exactly what she called it, with the waiver of right as executor form to my brother I found, but NOT to my nephew?? She stated my nephew HAD to sign this waiver and we cannot continue with probate until he does sign? She would give no explanation as to why she will send the notice to my brother by not my nephew. So, if anyone has any advice or information on exactly what else to do or any legal information to direct me to with information about this situation I would GREATLY appreciate it!

Thanks

 

[curb1]

Why do you need the stock certificates?

 

[shnncof]

Why do you need the stock certificates?

I have no idea, this is what I was told by the company that I needed to do. I thought about this myself, considering the certificates have never been mentioned in actually being needed for any of this, so I am just going by what the company told me???

 

[anteater]

Adopted nephew that I paid a private investigator to locate IS legally adopted BUT the Clerk of Court said he is still entitled to my deceased sister's share of the estate.

I know that earlier I left open the possibility, but call me skeptical.

I see curb entered a comment while I was still clicking. But, I was also going to ask: couldn't you just instruct the custodian to sell the stock and issue a check in the name of the estate?

 

[shnncof]

couldn't you just instruct the custodian to sell the stock and issue a check in the name of the estate?

I also asked this, as it seems much simpler. I was told that it was not possible because the stocks had to be transferred first then I would have to call and request the stocks to be sold after transferred to the estate. I was told there was no way around this, but the same company that will have to sell the stocks is the same company making the transfer of the stocks, so why not be able to just sell the stocks then transfer the check into the estate and eliminate the extra steps in the middle?? All I know is what I am being told, I have called the company 5 times now, spoke to 2 managers and I tell you they all tell me something different in some way or another everytime I call. I have no idea about stocks or ever delt with them so all I know is what I am told.

 

[curb1]

Your experience is not unusual whether it is an insurance company or the telephone company. I usually call until I get the right person who will make the process the easiest and have that person handle the situation.

Your situation might be different, but I have bought hundreds of different stocks in the last forty years and have not seen a certificate yet.