Return to the Retirement Forum | Post a Follow-Up

 o
Here's a very complicated problem...

Posted by carrie630 (My Page) on
Sat, Nov 20, 10 at 20:02

Parents have two separate children: Father has two daughters; mother has three children.

Their will is simple and old. It states everything goes to husband if wife dies, vice versa.

I am Executor and it states whatever is left when they die, everything to be divided evenly. I would honor that totally (that's why I was chosen).

Now, it was called to my attention (by a friend) there was no durable power of attorney - so a meeting was set up (20 years after will was made) and both wanted me to be durable power of attorney as I would split evenly whatever was left had they passed. It was specified by the stepfather to name me.

When they met to sign the papers, the daughter was named as his and me for my Mom. This is not sitting well with my mother, and father is disappointed, but doesn't want to hurt daughter's feelings so is not questioning why it was changed.

I have a problem with that. My mother states when she dies all goes to him; vice versa. If this questionable sibling on his side gets power of attorney, no money will be seen by us if she goes first.

I am Executor - do I have any say in cashing of CDs, stocks, etc.? Does this person just take over and not honor their wishes?

Should my mother start cashing CDs (in both their names) and put some aside for us because she is doubtful it will be divided later?

Thanks


Follow-Up Postings:

 o
RE: Here's a very complicated problem...

...with a simple answer. Your parents need a lawyer. ANY TIME there is a re-marriage with children from a previous marriage, state-specific advice is necessary because 'per stirpes' is defined differently by each state.

In addition, there may be issues about community property; again, state laws differ on this important matter. And much depends upon the wording of this will, outdated or not.

If you, when acting as the Executor, have reason to believe theft or fraud has been committed, you have a fiduciary duty to the other heirs to reclaim such assets. You are legally responsible for the final tax return and the disbursement of assets as instructed. You can be sued by the heirs if they feel you have not fulfilled your legal responsibilities to them.

Settling an estate is emotionally draining and legally burdensome even at the BEST of times; e.g., a simple estate, a simple will, and everyone in agreement with everything above-board.

The situation you are describing is promising to be anything BUT simple. If you cannot convince your parents to speak to a good estate attorney and draw up legal documents that will more clearly reflect their wishes under different scenarios, their estate could be wasted in after-death legal fees if the heirs start fighting.

A good estate attorney would have drawn up a current will and included financial and healthcare durable powers of attorney for one set fee. This is a classic situation where being penny-wise is guaranteed to be pound-foolish.

I wish you good luck going forward, and sincerely hope you can resolve this situation.


 o
RE: Here's a very complicated problem...

They are elderly and really belong in an assisted living situation but are too stubborn to go.

My realization is that the durable power of attorney will be enforced on his end when mom goes and the money will be spent (in all the wrong ways). He won't see that happening.

As executor, where is my power to make sure all CDs are not cashed if I have no power over the father living? Am I left in the cold once mom goes even though I am executor - which would be executor to nothing when they get finished.


 o
RE: Here's a very complicated problem...

In most states power of attorney's durable or not end with the death of the person that it is for. At death it ends so the power of attorney can not divide anything.

You do need to have a talk with an attorney. It would be best if your parents were there because in it sounds like what they wanted is not what their will is saying. The problem with each to the other will's is that the person that remains receives everything. When they die unless they have a document, will, that is a legal document stating how to divide any thing they own everything passes to next of kin of the last person dying. As an example my next of kin are cousins that I have not seen in twenty years, or however your state's law is written.


 o
RE: Here's a very complicated problem...

At this point, I have to trust the one who gets power - She would have to live with herself if things were not done the way they want. I can't worry about this - it's only money and I don't want to get involved in their business - thanks


 o
RE: Here's a very complicated problem...

But will you feel the same way if the money is diverted from where it should go (parent's care) into somebody's pocket?

I mention this because a similar situation has happened to a friend of ours. He is one of three siblings. The widowed father is in a nursing home, and one sibling who took care of him and has power of attorney, is apparently spending thousands of $$$ from father's accounts on trips to Europe, new car, etc.

Our friend is the executor. He doesn't want to confront his sister even though the will states that all siblings will have equal shares.

You could say that he has no legal responsibility if the estate is wasted before he assumes the executorship. However, the third sibling (who just died unexpectedly) has two children. Does he have no moral responsibility to his nephew and niece to ensure that 1) their grandfather is being provided with everything he needs for a comfortable end to his life, and 2) that the third generation gets a chance to inherit what would have been due them?

These are difficult individual questions, with no easy answers.


 o
RE: Here's a very complicated problem...

Talk to a elder lawyer at least. Depending on your states laws etc it could be that this is a big mess, without proper guidance. If there is much money, it could be tied up in court for months if not years, and who is going to pay the fees. Be honest, with the parents, have all sibblings on both sides involved.


 o
RE: Here's a very complicated problem...

Just happened to a friend of mine. Father divorced and remarried a woman with 2 daughters. Will left everything to each other. Father died, new wife got everything. Put all bank accounts in joint accounts with her daughters. She died five years later and her daughters got everything. His children got nothing. Her daughters also got the house.

You need to explain what can happen to your mother. Maybe she will agree to see a lawyer with you.

Good luck,
Jane


 o
RE: Here's a very complicated problem...

When my Mom remarried, she(she had 3 children) and her new husband(he had 4 sons) had a trust drawn up. When Mom died first, my stepfather was able to live in Mom's house until he died. after he died, all the house went to me and my two brothers. Everything else was divided between all 7 kids. The only complaint was that the Stepfather and his sons left the house a mess.


 o
RE: Here's a very complicated problem...

I feel for families where inadequate planning and preparation results in major unfairness for various inheritors, much different from the desires of the givers.

Dad, with three sons by first wife, later married second wife (some younger) with ready-made daughter, some younger than us three boys.

Sis has said on different occasions that Dad always treated her equally with the boys.

Her Mom had little when she married Dad, later inherited part of a farm and used it to buy farmland near their new home, at a distance from where they grew up.

On her death, step-mom's assets, including a section of land, was to go to her grandchildren, with daughter to have income throughout her life, but later it was arranged for daughter to have some of the assets ... part of which were lost when daughter and husband parted (largely on daughter's initiative, I think).

There were some GICs (not large) in joint names and there was some talk in the family that step-mom, figuring that she was some younger, would likely inherit them on Dad's earlier death. But she died of cancer a couple of years before him and Dad's estate ended up with the GICs.

The brother who had taken over the farm got some of Dad's land, and some of it was shared equally among him, me and our deceased brother's three children who shared his share equally. The other parts of Dad's assets were divided in similar fashion: one third to each of the boys, with deceased brother's share divided equally among his three grown offspring.

Farmer brother was exec. and treated everyone more than fairly: he's made that way.

ole joyful


 o
RE: Here's a very complicated problem...

"Just happened to a friend of mine. Father divorced and remarried a woman with 2 daughters. Will left everything to each other. Father died, new wife got everything. Put all bank accounts in joint accounts with her daughters. She died five years later and her daughters got everything. His children got nothing. Her daughters also got the house.
You need to explain what can happen to your mother. Maybe she will agree to see a lawyer with you.

Good luck,
Jane"

The same exact thing happened to my cousins.


 o
RE: Here's a very complicated problem...

My husband put my name as survivor on all of our accounts and property. At first he wanted to leave one property to be divided between his kids, but later after experiencing how they treated me and him he changed his mind. I was worried about his kids making a claim on the estate and the lawyer said the judge would toss the claim in the trash.


 o
RE: Here's a very complicated problem...

" I was worried about his kids making a claim on the estate and the lawyer said the judge would toss the claim in the trash."

The problem however is that you have to go to court, you need a plan that won't have to go to court. Of course, the lawyer wants it to go to court so ge can be paid......


 o
RE: Here's a very complicated problem...

It could well be that "Vala55"'s situation might be quite different, in a different state/jurisdiction - or country.

ole joyful


 o
RE: Here's a very complicated problem...

Unless things are done carefully - and responsibly - in a number of estates ...

... some get the wheat ...

... and some get the chaff/straw.

ole joyful


 o Post a Follow-Up

Please Note: Only registered members are able to post messages to this forum.

    If you are a member, please log in.

    If you aren't yet a member, join now!


Return to the Retirement Forum

Information about Posting

  • You must be logged in to post a message. Once you are logged in, a posting window will appear at the bottom of the messages. If you are not a member, please register for an account.
  • Posting is a two-step process. Once you have composed your message, you will be taken to the preview page. You will then have a chance to review your post, make changes and upload photos.
  • After posting your message, you may need to refresh the forum page in order to see it.
  • Before posting copyrighted material, please read about Copyright and Fair Use.
  • We have a strict no-advertising policy!
  • If you would like to practice posting or uploading photos, please visit our Test forum.
  • If you need assistance, please Contact Us and we will be happy to help.


Learn more about in-text links on this page here