Tag Archives: Estate Planning

Can step-sister sign dad’s cabin to herself with a POA?

Q: My father was just diagnosed with a terminal illness. He is 80 years old. His step daughter “talked” him into giving her POA. What can we do? We all live hours away. My sister is going up to take care of him, after she puts her affairs in order. She is also the executor of his will (as she understands it). We are worried she (step daughter) will change his living will. He feels intimidated by her. She is big and forceful. We are afraid she will change it and take the cabin away and put him on the streets. He lives in the cabin in Crawford County. We are all in Allegheny except the step-daughter who lives up there. What are our options?

A: Generally, an Agent on a POA cannot draft and sign a will for another person. But this could not stop her from having a new deed to the cabin prepared and signed by her as POA, in which she deeds it to herself. If he is still mentally competent, perhaps you can advise him to revoke the POA by signing one over to you or your siblings. If this is not possible, if you want to control the situation, you may need to file for a guardianship. Unfortunately, he lives in Crawford County and you may have to file there. I think you should discuss this with a lawyer here or in Crawford County. He or she may be able to start communication with the step daughter and this may put her on notice that her actions are being scrutinized. If you have evidence she is diverting money, or has wrongfully converted his money, you can have an attorney petition the court for an accounting of POA funds. Before you do anything I would attempt to see if you and your siblings can meet with her to put all of these concerns on the table. Open communication may help to avoid a legal fight.

 

Can my sister charge me for elder abuse?

Q: I have been my mother’s power of attorney as well as on a joint checking account with her for the past couple of years. She has now had to be placed in a dementia care home and my sister who was not involved with any of her care filed for and got guardianship. I then closed the joint accounts and sent the money to the care home. My sister got copies of bank statements and is now charging me with stealing my mother’s money. My mom and I were ok with me spending what I needed as well as me using money from my private account to help her with bills. Since I was a legal joint owner on that checking account does my sister have a legal standing to accuse me?

A: Based on the limited facts I am hearing, the simple answer is that when you were acting as POA Agent, you had a fiduciary duty to act in your mom’s best interest and document all your expenditures of her money. If you can did act in her best interest and can document all of her expenditures, your sister can allege all she wants, proving it is another matter. In order for her to proceed against you legally, she would need to hire an attorney to file a petition in Orphan’s Court requesting an accounting of all of your spending as agent for your mother on her POA.

 

Who gets dad’s bank account?

Q:  Father opened a bank account in his name only in 1974. He was divorced in 1981. The bank account was not mentioned in divorce. He remarried in 1982. He died in 1998. Who does the account belong to? the first wife, current widow or kids?  Father opened bank account in his name only in 1974 and he was divorced in 1981. The bank account was not mentioned in divorce. He remarried in 1982. Died in 1998. Who does the account belong to, the first wife, current widow or kids?

A: If he has a will, it goes to the person or persons in the will. If he excludes his widow, she can elect to take against the will. If he has no will, his estate will pass through intestate succession in PA which means the wife get s the first $30,000.00 and the balance is shared between her and the children. If this is any amount of money worth fighting for, I would consult with a lawyer as soon as possible.

 

Can an injury settlement be given in a will?

Q: If the person writing a will is waiting for a claim settlement that could take a long time, is he able to put it in his will?

A: I have seen it in wills. For example, language such as “I hereby give and bequeath any injury settlement proceeds I obtain from my pending law suit against ACME Corporation, to my dear friend, Hans.” If the injury settlement comes in after the estate closes, letters of administration can be subsequently raised temporarily to handle the settlement and payment of  inheritance tax.

If I am in Bankruptcy, can my aunt put my name on the deed to her house?

Q: In Chapter 13 can I be put on another house’s deed? I declared Chapter 13 about 3 years ago and have been making payments. My aunt wants to put me on her deed. What are the ramifications of that, and the risks to her? She will be entering a nursing home and doesn’t wish to sell the home.

A: Two issues. Is this wise to do for estate planning purposes for your aunt and is this wise for you to do while you are in bankruptcy? From an estate planning point of view, if she titles the house jointly with you, only half of the value of the house will be subject to inheritance tax when she dies. Since the applicable inheritance tax rate for a nephew is 15%, this could save some money. The negative side of such transfer is that if in within five years following the transfer, your aunt needs to apply for Medicaid, such a transfer could make her ineligible for Medicaid funding. The house would have to be included in her assets subject to the Medicaid claim and you may be forced to sell this house unless you could pay the fair market value to Medicaid. This is of course unless some Medicaid exclusion applies for example if you lived in the home as her caretaker for a period of two years prior to the application date. If your aunt really foresees Medicaid funding in her future, you should have her consult with an attorney versed in Medicaid law in order determine if she can shelter some of her estate now perhaps through a Medicaid trust. As far as your bankruptcy, I would check with your bankruptcy attorney as the acquisition of an interest in real estate while under a bankruptcy plan, may, violate your agreement with the trustee assigned to your bankruptcy case.

Can I sell property with a Power of Attorney without the person’s knowledge?

Q: Can you sell someone’s property under their general durable power of attorney without the person knowing or signing documents? Can you get in trouble for doing this?

A: All powers of attorney have an underlying understanding that the agent is acting in the best interest of the principle. If the principle is competent to make his or her own decisions and you, as agent, are operating behind their back doing this, you are not fulfilling your duty. If they are incompetent and you are acting in their best interest, that is another matter. You really need to have a local lawyer look at the POA and assess the situation. Is it a standard general durable POA or is it a springing POA? Is the principle competent? Is this move in the principal’s best interest? There have been two significant changes in POA language by the PA legislature, one is Act 39 in the year 2000 and one is Act 95 in the year 2014, effective January 1, 2015. Much of these changes were made to curb and police the actions of agents who exceed their powers in not acting in the principal’s best interest.

Brother has a will, but put us on his certificates of deposit

Q: My brother had his will drafted in 1999. In this will, all of his property was left to a certain friend of his.  However, several years later, he added me and our sister to his certificate of deposits.

A: Generally, jointly held property (joint tenants with right of survivorship) goes to the surviving tenants and does not go into the estate. Therefore, if your brother made you and the sister joint tenants with him on the CD’, when he passes, you and your sister own the CD’s and they do not go into the estate nor to the “certain person” listed in the will. If the transfer of the CD’s was done within a year of death, they are fully taxable with a $3,000.00 exclusion. If made beyond one year prior to death, the surviving tenants only pay inheritance tax on the deceased tenant’s share. Thus if you, your brother and your sister are joint tenants with right of survivorship, then inheritance tax is only due on one-third of the assets.

Do I need a will? My children agree on everything?

Q:  Do I need a will? I have no real estate, just bonds and a bank account. My 4 children know it is to be split up evenly and they agree with my wishes.

A: No attorney can answer this without more information. Do you have a wife? If so, she cannot be totally disinherited by you and can file an “election” against your estate. Do these assets pass directly to your children either in-trust-for or jointly? If there is no spouse and the assets pass directly, it could be a very simple process and your children would receive their inheritance, pay inheritance tax and there would be no need to open an estate. If you have no will (“intestate”)and these assets do not pass directly to the heirs, an estate will need to be opened and the assets will pass under the PA laws of intestate succession to the heirs equally. Under intestate law, if you have a deceased child, that child’s child or children will inherit the share of their parent. If you have a will you can choose to have the share of a deceased child instead pass to your surviving children or any one of your surviving children. You have more say in how your estate passes when you have a will. You can also choose which child will serve as your executor, which could avoid any potential disagreement among your children.  I would advise having a consultation with an estate attorney and having a simple will done.

What options do I have with my terminally ill grandmother?

Q: What options do I have to ensure my terminally ill grandmother is receiving the best possible care during the end stage of her life. My grandmother is under hospice and living at my Uncles house in South East Florida. I am in PA. My mother was living there up until this week assisting the Hospice care team with the care of my grandmother. Not certain of the details but according to my mother, my uncle was violent with her and called the police to have my mother removed from the home. My Uncle claims to have POA over my grandmother although I have no idea if this is true or not. My mother claims he does not. I do not believe my grandmother has been deemed incapacitated, although again I have no way of finding out. I do know that she is of sound mind, but she is very weak and highly immobile as we have spoken. I am concerned I will not be able to see my Grandmother before she passes and I am really concerned about her quality of life.

A: This is more of a family dynamic problem than a legal problem. I would highly suggest trying to talk to your uncle and express your concerns. You may want to call the Hospice team and see if they will help convey your concern, but don’t count on them wanting to get involved in a family dispute. If you have to go legal, you can call the department of aging or social services agency in that county and see if they do home visits for the elderly. You can also seek a lawyer down there to advise you on what services are available and perhaps on what legal actions he can take such as a letter to your uncle expressing your concerns and requesting a copy of the POA. He can also advise you on the law of guardianships in Florida.

Is this Codicil legal?

Q: What is the probability of winning a contest to a codocil signed 2 days prior to death of a terminally ill cancer patient who is heavily medicated?  I was unaware that she was terminally ill and only found out from my Aunt Kathy (my mom’s sister) on Friday Sept. 27th. At that time my mother was being sent home from the hospital to die. I learned that she had liver cancer and a tumor in her lungs. She was given days to live. In May of 2013, my mom called me to let me know that she was working on her will and she needed some information from me. I thought nothing of this call as my husband’s parents and my stepmom and dad had also been making these arrangements. It seemed perfectly natural. She told me that Morgan (my daughter) and I were her primary beneficiaries and she told me that I would be the executor to her estate. I have a copy of my mother’s original will dated May 15th, 2013, that outlines pretty much exactly what I expected. You will also find a codicil dated September 27th, 2013 leaving her house, all contents of the house and car to Juanita Johnson. It also removes me as executor of her estate

A: This is a case that you really need to review all of the facts with an attorney. First the attorney can look at the Codicil to see if it is legally binding. Codicils are still permitted but must be executed with the same formality as a will-at least signed at the end by the testator. With the invention of word processors, hardly anyone, especially attorneys, draft Codicils anymore, which leads me to question who drafted it, and it’s legality. The attorney can also help you and advise you on how to gather information as to your mother’s state of mind at the time she executed this document. This can come from her doctor, hospital staff or other witnesses.