Trusts: May 2009 Archives

May 28, 2009

Can You Probate a Copy of a Will?

This week, a woman called my office and asked if her father could submit a copy of a will to the probate court. An elderly friend of his had recently passed away; during her lifetime she had told her father several times that the will was located in a certain desk drawer. But when he went to look for it after she'd died, all he could find was a copy. No one could find the original.

Rules vary state to state, but generally, if all you can find is a copy of a will, you should still submit that to the probate court. The thing is, you'll have to prove to the court that this is the authentic last will of the person who died and that there wasn't some other original will floating around. To do so, you'll probably have to call witnesses who can testify about the circumstances under which the will was made and provide evidence that the will was never revoked.

None of that is easy -- or cheap. The easiest way to avoid leaving your heirs with this kind of hassle is to make sure you -- and a trusted family member or friend -- know where your original documents are and to keep them in a safe, and accessible, spot.

For a complete guide to collecting and organizing important papers and information, see Get It Together: Organize Your Records So Your Family Won't Have To, by Melanie Cullen and Shae Irving (Nolo).

May 13, 2009

Not Munchkins, too? Seems Over the Rainbow Somehow

rainbow.JPGIn what's starting to seem like a series on the ways in which powers of attorney can cause heartache -- or worse, elder abuse -- comes a story out of St. Louis. The heirs of one of the last surviving Munchkins from the film The Wizard of Oz, Mickey Carroll (real name, Michael Finocchiaro), are suing his caretaker, Linda Dodge, claiming that she and others took advantage of the actor in his final years.

The heirs claim that Mr. Carroll, who died Thursday, May 7, signed powers of attorney transferring power over his property and health care decisions to Dodge when he was unable to understand what he was signing. They further claim that Dodge then kept him isolated, spent his assets, and kept the money that Carroll made from appearing at events.

Dodge counters that the dispute is just a "family squabble" and that she took good care of Carroll.

To learn more about financial powers of attorney, see Nolo's article Financial Powers of Attorney: Do You Need One?.

May 6, 2009

What to Do When You Move

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People often ask me what to do with their estate plans when they move to another state. Here's the answer: if you think you're going to be in that new state for a while, it makes sense to update your estate plan to reflect that state's laws.

It's not that your estate plan will be invalid in another state. With the exception of gay marriage (in some states), contracts signed in one state are valid in another. But it can create inconvenience for your heirs if they have to administer an estate under, say, California law, if a parent died while residing in Georgia -- especially if the kids live in Georgia too.

Also, powers of attorney, which are important legal documents granting another person the right to act on your behalf with respect to property and health care, are created by state law, and your rights, especially with respect to health care decisions, vary from state to state. For that reason, and additionally because banks and doctors like working with forms that they know, it's a good idea to at least create new powers of attorney if you move to a new state.

For a comprehensive guide to estate planning essentials, see Plan Your Estate, by Denis Clifford (Nolo).

May 1, 2009

Ms. Astor Regrets -- It Can Happen in the Best of Families

This week in New York a trial opened in which, Anthony Marshall, the son of famous socialite Brooke Astor, who died in 2007 at the age of 105, stands accused of exploiting his mother's diminished capacity to steal cash and property worth a whopping $198 million.

The prosecution claims that Marshall, and co-defendant (and attorney) Francis X. Morrissey, had Ms. Astor sign papers and make changes to her will that increased Marshall's share of his mother's estate. In addition, Marshall stands accused of paying himself $500,000 a year as Astor's financial adviser and transferring her property to himself.

The case was prompted, the Washington Post reports, by a court petition filed by Philip Marshall, Astor's grandson. The petition alleged that his father was robbing Astor and "neglecting her health and hygiene."

What can the rest of us learn from this mess? First, family members should pay close attention to their elders and make sure that they are comfortable, safe, and well-taken care of. Second, family members should carefully scrutinize the financial well-being of the elderly and question any suspicious transactions or property transfers.

If you suspect that someone is taking advantage of an elderly family member, find out how they've gained access to that person's finances. If your loved one still has capacity (the ability to understand what they're signing), they can make a responsible person their agent for finance using a durable power of attorney for finances. The agent can then block the evil-doer's access to the money. If an elderly person no longer has mental capacity, you'll have to go to court and petition to be named that person's legal conservator or adult guardian to protect their finances. 

For more information on preventing abuse of powers of attorney, see the article Elder Financial Abuse: Power of Attorney Scams.