Year: 2018

What are a Landlord’s responsibilities if a Tenant dies?

This is a common question with numerous semi-complicated answers depending on certain facts. I will try to explain the most common questions Landlords have when a current Tenant dies.

One common misconception, is that once a Tenant dies their lease is terminated or canceled. That is not necessarily true. A Personal Representative or holder of a Small Estate Affidavit may continue to the pay the rent as normal while they administer the deceased Tenant’s estate.

Who has a right to access the apartment, take personal belongings, or receive a security deposit refund?

  • There are a number of ways an heir or other interested party can acquire the right to a deceased Tenant’s apartment, belongings, and return of security deposit. Make sure you keep a copy of whatever document they provide and ask an Attorney if this document gives them the right and protects you if you allow access to the apartment.
    1. The most common is by being appointed the Personal Representative (or Executor) of the deceased Tenant’s estate. Once appointed, that person, now steps into the shoes of the deceased Tenant and has the duty to inventory, dispose of, and handle all of the Tenant’s affairs. If the estate is over $50,000 in value they still must go through the Probate process and be appointed as Personal Representative.
    2. If the tenant’s total assets are under $50,000 a Small Estate Affidavit may be used, which gives that person the rights as if they were appointed a Personal Representative by the Court. This does NOT require filing anything with the Court.
    3. The 3rd and less common way for someone to gain access is by having an Affidavit for Information only. This affidavit allows a person to access the apartment, review financial documents, and other things to determine the estimated value of the state prior to them deciding if it must be probated or they can use a Small Estate Affidavit.

What do I, as a Landlord have to do?

  • A Landlord should NOT provide access to any third party (i.e., give them a key or unlock the door) without them having provided proof as set forth above.
  • Get a copy of any document presented to you giving this person Authority to Access. Can ask to see their driver license or other form of ID to prove they are the correct person. Keep copies in the Tenant’s file.
  • A Landlord should NOT change locks or prevent a third party access who may already have a key. That is NOT the Landlord’s responsibility unless they have a reasonable belief that unauthorized people are stealing or damaging the apartment.
  • A Landlord should work with the person, as it is in their best interest to allow that person to remove items and return possession as soon as possible. Chances are, in most cases the Landlord will have little recourse to go after an estate of a deceased Tenant for unpaid rent or damages as there is usually no or very little money.

What about Security deposits, 45 Day Letters (letter itemizing how security deposit was applied), and personal property left in the apartment?

  • These processes stay the same, Landlord must follow the rules and laws regarding returning the deposit, sending the 45 day letter, and proper storage and disposal of personal property. Landlord can take it a bit further and reach out to an emergency contact if no person has contacted the Landlord regarding the deceased Tenant to try to determine who should receive letters, remove property, receive refund of security deposit, etc.
  • If you have tried to return the security deposit and it was never cashed for some reason or another, and you have used due diligence and reasonably attempted to find an appropriate person, you should then turn the deposit over to Indiana Unclaimed. You have to provide as much relevant information as you can. Then the state of Indiana holds the money and waits to see if any interested party ever claims it. You do NOT want to hold money and be responsible for it.

 

For more information on Landlord Law or to speak with us, contact Perry Law Office for a free consultation.

 

Basics of Indiana Collection Law

If you are owed money and the person or entity that owes you refuses to pay you will have to make the decision whether or not you want to take the matter to court to enforce collection of the monies owed to you. In Indiana for claims involving $6,000 or less, $8,000 or less in Marion County Indiana, there is a simplified procedure for filing a lawsuit in what is called Small Claims Court. The filing fee generally changes slightly from year to year but it should be around $90. Most courts in Indiana are going to e-filing. As a pro-se plaintiff, you are able to file as before. But that law could change in the future.

The advantage to filing in Small Claims Court is a faster route to trial if a trial is necessary. In addition to a streamlined process for obtaining a judgment, Small Claims Court is also designed for a streamlined process for the collection of the judgment. If a trial is required then it usually can be scheduled in a relatively short period of time. One month up to six months. This is a much quicker time frame in which to get in front of a judge than you would have in a court outside of Small Claims Court. Many claims are reduced to judgment without the need for a trial and in that case, you might have a judgment Within 2 months after filing the lawsuit.

Obtaining a money judgment against the person or entity that owes you money is often the easiest part of the process. You then have to collect on the Judgment the court provided to you. This is not automatic. Just because you have a judgment does not mean the person or entity that owes on the judgment will voluntarily pay.

In Indiana, the most common form of collecting on a judgment once one is obtained is through the garnishment of wages. The wage garnishment statutes in Indiana are favorable for creditors. An employer will be required to pay a percentage of an employee’s wages into the court if they receive the proper paperwork from the Judgment creditor through the court system. The formula that is used is 25% of net income (net income is take-home wages after deducting only taxes and Social Security withholdings). If the Judgment debtor makes less than $217.50 which is 30 hours at minimum wage of $7.25 then nothing is taken from their wages on a garnishment. If they make between $217.50 and $290 the entire amount over $217.50 up to $290 is taken as garnishment. If their net income is over $290 then 25% of their wages are garnished. This formula is provided to employers on the paperwork they receive from the court instructing them to garnish the employee’s wages to satisfy the judgment. There can be other considerations such as support payments and independent contractor issues that could change this formula.

Perry Law Office can help you collect on this difficult to collect judgments or help you obtain a judgment.

What is a Windfall Offset in Social Security Disability?

Many times people who file for disability with the Social Security Administration (SSA) have claims for both Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Also, many times, the person who is found disabled is really only entitled to, at most, five months of past due SSI benefits. Yet, SSA will start off with paying the person many more months of SSI to which they are not really entitled. When SSA tries to figure what you are owed in past due DIB, they reduce that amount by what you have been overpaid in SSI. This is called the windfall offset. Sounds simple enough doesn’t it? But it is not. SSA withholds the past due DIB until the offset is calculated. In about a twenty-one percent (21%) of the time it is not calculated at all and another thirty-one percent (31%) of the time it is not done in a timely manner. Two percent (2%) of the time it is done incorrectly. Only about forty-five percent (45%) of the time are things done properly. This can be very confusing to individuals receiving disability benefits. It can also make it difficult for the disabled person to receive all past due benefits to which they are entitled. At Perry Law Office, after we help a person obtain a favorable decision that they are disabled, we follow their claim in an effort to see that all past due benefits are properly paid.

Transfer on Death Deed

A transfer on death deed (aka TOD or TODD) can be used to name a beneficiary for your real estate upon your death. You, as the owner, retain full ownership and responsibility for the property, including paying property taxes and filing for any applicable exemptions. The actual transfer of ownership is not completed until the owner’s passing. The deed must name the beneficiary, after all, that is the reason for doing the deed. It must still be properly recorded in the county where the real estate is located. The deed can be revoked or changed at any time prior to the owner’s passing.

If the property is sold before the owner’s death, then the beneficiary has no future rights to the property even if a valid TOD was recorded. It is the same as in a Will or any other deed, only what is owned can be conveyed or transferred, and when the owner sells the land they cannot also convey it to a beneficiary as they no longer retain ownership. Another consideration is when the property is held jointly such as tenants in the entirety, then both owners must convey the property to the same beneficiary, otherwise, the TOD is void.

By way of the automatic transfer upon death, the property is no longer part of the deceased’s estate. Using this type of deed can be beneficial in eliminating the need to open an estate and go through the probate process. In general, you must open an estate and go through probate if the value of the estate is $50,000 or more. If you are interested in discussing the possible benefits a transfer on death deed may be to your estate plan, please contact Perry Law Office for a free consultation.

What does a Personal Representative of an Estate need to do to get started?

Personal Representative is a gender-neutral legal term used in Indiana and is the person(s) named to wrap up a deceased’s affairs and distribute the assets. Other states may refer to this person as the Executor (male) or executrix (female) of the Estate. If the Decedent had a Will, they typically would have named their choice for Personal Representative in this document. Once the estate is opened with the court, the court will officially approve the Personal Representative, thus giving them the authority to handle the affairs and assets of the decedent.

There are several things you are tasked with handling, while some of them may not seem difficult, they can be time-consuming and hiring an attorney may help.
1. Locate the Will and determine how distribution of assets is to go. This is more involved than just finding the assets and handing them out
to the heirs, and there are time frames that should be followed.
2. Locate and secure all assets making sure they are locked, insured, and harbored in a safe place. This includes securing the house, vehicles,
bank accounts, and personal belongings.
3. Keep the utilities and mortgage paid, but cancel the non-essentials like cable and the newspaper.
4. Open an estate bank account.
5. Review all bills, and determine what must be paid now.
6. Determine if tax returns must be filed.
7. Everything must be kept separate than the Personal Representative’s assets.
8. Determine all heirs to inherit under the Will. Get approval by all to close the estate and distribute the funds.
9. You as Personal Representative could have personal liability if handled incorrectly.

This is not an exhaustive list of the duties of a Personal Representative and every case is different.

Please contact Perry Law Office, your Fort Wayne attorneys 260-483-3110 or visit us at our website.

Thank you
Perry Law Office

Why you should not draft a Will online

There are many websites where you can draft your Will, but do you really know what you are getting? Always remember, you get what you pay for.

Before you have some website create important Estate Planning documents for you, consider the following:

1. Generic Documents. Many of the sites offer generic documents that are intended to be a “one size fits all”. When it comes to estate planning, this is not the time for you to try on a “one size fits all” document. You may have very specific needs that cannot be addressed in the generic document. What if you want to leave someone out of your will? What if you want to leave a specific item to someone? What if you want to make sure if a child predeceases you that your grandchild gets their share? These documents are often templates and may or may not allow you to address your questions and concerns.

2. Every state has different legal requirements. Each states has its own tax inheritance laws, as well as certain requirements to make a valid Will. Are you confident that the generic forms cover your state’s requirements? In Indiana, you must be 18 years old, of sound mind and the Will must be signed by two disinterested witnesses. The website does not offer you witnesses to sign your Will, so even when you are done printing there are still steps to be followed to make sure the Will is valid.

3. Consulting an attorney? Many of these sites do not have an attorney walking you through the process, or even offer to have an attorney contact you before drafting your documents. If you have questions there is little guidance. Often you will even find a disclaimer that this is not to be considered legal advice. Who will you ask the important questions of what can I and what can’t I put in a Will? Or how do leave or specifically not leave someone, something? What is best you, based on your current martial, familiar, or financial situation? There are various types of of Wills and Trusts, depending on your specific needs that you should consider before choosing a Will.

4. Making changes. Many times your Will is not retained by the website and any changes you may want to make requires you to start over. Before you make those changes, are they even necessary? The website will not be able to advise you on whether changes are necessary or not.

5. You retain your own Will. Sounds great, right? What happens if you spill your morning coffee on the file you just safely placed your Will in? What happens if you have a fire? Or the safe with your Will was just stolen? Your original Will is now gone and cannot be replaced. You will have to go online and start over, and probably pay the cost again to recreate it. Most courts require the original Will, not a copy in order to probate it. As a courtesy to our client’s, we retain your original Will in a fire proof safe, and you are welcome to it at any time.

6. Other essential Estate Planning documents. Along with a Will, do you have a Power of Attorney? Did you know a Will only kicks in after death? What if you or your significant other becomes incapacitated? Who will make your, financial and medical decisions? These are documents we strongly suggest everyone have. See if the website you are one explains the need for a Power of Attorney and that there are different types, financial and health care. An experienced attorney can explain each of these to you and when and how they may come into play, so you may make an informed decision on whether you need them or not.

We are experienced attorneys at Perry Law Office and offer free phone consultations. We will happily walk you through the process and answer all of your questions and resolve any of your issues. We then draft your Estate Planning documents to fit your individual needs. We, at Perry Law Office, will explain the various documents that everyone should have along with a valid Will.

Wills, Financial Power of Attorneys, Health Care Power of Attorneys, and Living Wills, are important documents and choosing the right combination of estate planning documents can be daunting. Do you need all of these? Maybe. Let’s talk about it and decide what is the appropriate for your current needs. There are also reasons that arise that would cause you to update your plan, and you should be reviewing it with every major life change. Since our attorneys have been working with you from the beginning, they will help you make changes to your plan with ease and advise you on whether an updated Will or Power of Attorney is necessary for you.

Perry Law Office, your local Fort Wayne attorneys. Call us today, 260-483-3110