January 2011 Archives

January 28, 2011

If Wills Aren't Clearly Drafted Get Help

Dear Liza: In a copy of my fathers will it states that Jane Doe is hereby appointed Executor of my Last Will, to do all lawful things to carry out its terms, with all those powers and subject to qualify, or having qualified shall die, resign or become incapacitated during the administration of my estate, I hereby appoint John Doe, or the survivor of him, to be Executor to serve.
Who is the survivor of John Doe? (there are four children, Jane and John are two of them).
Yikes, this is like an evil law school exam question. Here's the problem for you, the Will is drafted unclearly, or at least the question is confusing. I'm sort of stumped by who 'Jane" and "John" are for a start--I can't tell if we have two generations here, or an endless loop. If "Jane" is alive, though, she's first in line; then "John." If he's not alive,  "John", as you've described it (assuming here you're not talking about your father here but that second choice executor), has four survivors--each of his children (which is where I'm getting a headache, because you said that "Jane" and "John" are two of those children).

I would expect to see a reference to "survivors" in the Will section distributing money, which can be divided equally, not authority, which is not so easily divided. If "Jane" and "John" are not able to serve as executors, and indeed you need to figure out which of four people should represent your father's estate in probate, this is a situation where your family should see an attorney in your state. If your father's Will needs to be submitted to probate, you can decide who should request authority as the executor. State law sets out a priority for this role, but families can often work it out and petition the court to name the family member they've chosen.

January 26, 2011

Powers of Atty Don't Work After Death

Hello Liza, I have a question regarding a power of attorney the was issued sometime in 1981.  Unfortunately my grandmother did not keep a copy and she has not been with us for about 10years now.  The notary who issued the power of attorney is also gone.  Are there copies and are they kept somewhere locateable.  I need to produce a copy to an attorney overseas who is doing some work for my family.   I have no idea why anyone would need a power of attorney for someone who has died so long ago, unless it is to document a long-ago transaction.. A Power of Attorney is a document that authorizes an Agent to act on behalf of someone (the Principal) who is alive, but incapacitated in some way, or who authorizes the Agent to act of their behalf for another reason. That authority, however, terminates upon the death of the Principal. After there's been a death, it is a Will that authorizes an executor to act on behalf of the now dead person. I find that my clients frequently are confused by this and try to use a Power of Attorney to write checks to pay for things like last illness expenses and funeral expenses. They should NOT do this, as they legally have no authority under that document the minute the Principal has died. And there's no central registry for Powers of Attorney, if you can't find it, nobody can.
January 23, 2011

Gifts to Kids as Inheritance Up Front: Write it Down

Dear Liza: How typically would you handle the following situation?  Say one of four siblings was gifted a significant amount of money while a parent is living.  The same amount of the money was not able to be given to the three other siblings.  Just not enough "liquid" cash.  It was understood that the gift was to be recognized at the time of the parent's death through the inheritance. Here's what I'd suggest. First, you have to understand that considering a gift during life as an advance on a child's inheritance is entirely up to the parents involved, not the siblings, no matter how 'unfair' that may seem. If, in fact, parents want to treat such a gift as an inheritance, then they can say so in their Wills or living trusts, asking the executor or Trustee to take such a gift into account before equalizing the shares given to each sibling. If they don't, then that gift can't be taken into account if the Will or trust says to divide what's left equally. Period. Any equalizing between siblings at that point would have to be voluntary. The big problem is with that word "understood' in your question. So often these family understanding aren't written down or documented in any way, and that's just a recipe for big time trouble. In the absence of anything written, siblings can and do sometimes end up with a family feud.