Mom has dementia since March 2016, crazy sister had Mom change her Will to leave New Hampshire house to her only. Mom has 7 other children. I am her legal guardian, (she lives with me in Oregon) can I change the Will ?
I am an estate planning and elder law attorney in North Carolina. I am not licensed to practice law in any other state, and this reply is not legal advice (usual disclaimer - sorry!) If you are a Court-appointed guardian, you cannot make any changes to your ward's assets without the Court's express approval. In many states, you also are prohibited from making changes to life insurance beneficiaries, account ownership or anything else that has the effect of changing the ultimate path that assets would take at death. That road is just too often taken with ill intent. I agree with a previous reply that any change of assets should consider impact on Medicaid and other benefits, if applicable to her situation. If you believe that your mother was taken advantage of, one option is to petition the Court to set aside the Will on the basis on undue influence. You can also gather medical information with the goal of challenging the Will after your mother's death. But immediate action to at least no your options is best. Consult with a local attorney for more detailed information and advice.
No one but a qualified estate planning attorney can properly advise you on this matter. Taking the advice of unqualified persons could create bigger problems for you because the laws vary from state to state and what might be legal in one state may not be legal in your state. Your question is not simple. While no one can change someone else’s will, there may be legal ways of invalidating the codicil. Every state has rules about what guardians are authorized to do without specific permission from the Court. For example, in California, you can’t sell real property without first asking for permission from the Court. The same is true of estate planning and based on certain criteria. But that may be different in your state. Best to contact an attorney so you don’t accidentally make a decision that ends up hurting you or be used against you later.
Great ideas for you, Supermom. I got with Mom's lawyer and paved the way for Mom to sign a Transfer on Death deed for Mom's house listing us kids as beneficiaries. It was easy and quick. Once recorded by the city/county, this deed supersedes the will.
Heysilky, are you sure you want your niece to be able to amend your will? Why would you want her to have that particular discretion? I'm pretty sure this is not standard practice.
If legal guardian is the same as POA for financial matters, in Wisconsin, you CAN make changes to beneficiaries. I recently made a niece my POA and it’s very clearly stated that she can legally make changes to any beneficiary listed on any of my documents. Take a good look at your document and if it doesn’t say that then contact an attorney. Lots of attorneys don’t charge for their initial consultation. Good luck!
You can't change it, but if you can show she was no longer in her right mind when the crazy sister had it changed, you can have that codicil nullified.
Simple answer to the simple question: no. Nobody can change a person's will except the person who made the will.
As your mother's guardian, you can challenge the validity of the new will if you can show that your sister co-oerced your mother or exerted undue influence, or that your mother was not competent to know what she was doing. The previous will would then stand. Bizarrely, you would in effect be challenging your mother on your mother's behalf, in order to protect her from herself. But stranger things have happened in the law.
Alternatively, I think Rainmom's idea of liquidating this asset now is inspired.
well a good point to is this if your mom was sane when she made the will then it should not be changed...but if she was not right then maybe you could & if the crazy sister had her work into it to then it should be changed ..this is my opinion but you need to contact the lawyer that did the will 1st off then contact a lawyer & ask if you can ..
Check your guardianship agreement to see if you currently have the authority to act on this now. If not, you’ll likely have to petition the court that granted guardianship for permission. You would need to present to the court that your mother has a financial need for the revenue the house sale would bring. I see that your mother is living with you - but it would be very easy to reason that should she need more care than you could provide the cash would be needed. Even if you never plan to place your mother outside your home - the court doesn’t need to know that. And again - this is assuming Medicaid is not a factor.
No. It is illegal in all 50 states for anyone other than the person who’s will it is, to make any changes.
If you had access to the original will you could always “lose” it. Then your mothers estate would be at the mercy of a judge and probate court - but would likely be more evenly divided. However, the state where your mother lives would also get a good sized share.
Going the “lost” route is pretty sneaky and shady but I suppose it is an option - should you be that motivated.
BTW - I live in Oregon as well and was executor for both my parents wills. In my fathers case we really could not find his will - he mysteriously removed it from his safety deposit box a few months before he passed. The probate courts in Oregon require the original will - copies are not acceptable even if it is one being held by an attorney. It worked out as my mother was listed as beneficiary on everything and probate was not even necessary.
Which brings up another idea. Ask an attorney if you can transfer the deed of ownership to the house prior to your mothers death - and if Medicaid is not involved. As guardian you can not transfer it to yourself most likely as it usually is considered a conflict of interest and most guardianship agreements bar that. But perhaps you could create a trust to own the house or perhaps a Transfer Upon Death agreement with all your siblings and figuring out something so that you are equally compensated.
It may depend on your states laws. Generally I would say nothing can be done without the courts approval. Definitely get an elder care lawyer and get the real facts.
Do you have a copy of the previous will? No, legally you can't change the will back to what it said earlier as her guardian, but you can see a lawyer about your concerns.
What does mom want? Having dementia doesn’t necessarily make mom incompetent but since you are her guardian then that ship may have sailed. I agree with polar bear, see a qualified elder attorney. If your mom has many years of care to go you may find she needs Medicaid at some point. If that happens the house could have a lien placed on it. A good lawyer can guide you. You may have to see the home for her care.
You need to talk with an attorney experienced in these matters, including Medicaid issues, if your mother is in spend-down or on Medicaid.
You are a likely beneficiary and have a conflict of interest, so do not change the will or sell the house without consulting a lawyer.
As your mother's guardian, you can challenge the validity of the new will if you can show that your sister co-oerced your mother or exerted undue influence, or that your mother was not competent to know what she was doing. The previous will would then stand. Bizarrely, you would in effect be challenging your mother on your mother's behalf, in order to protect her from herself. But stranger things have happened in the law.
Alternatively, I think Rainmom's idea of liquidating this asset now is inspired.
Check your guardianship agreement to see if you currently have the authority to act on this now. If not, you’ll likely have to petition the court that granted guardianship for permission. You would need to present to the court that your mother has a financial need for the revenue the house sale would bring. I see that your mother is living with you - but it would be very easy to reason that should she need more care than you could provide the cash would be needed. Even if you never plan to place your mother outside your home - the court doesn’t need to know that.
And again - this is assuming Medicaid is not a factor.
If you had access to the original will you could always “lose” it. Then your mothers estate would be at the mercy of a judge and probate court - but would likely be more evenly divided. However, the state where your mother lives would also get a good sized share.
Going the “lost” route is pretty sneaky and shady but I suppose it is an option - should you be that motivated.
BTW - I live in Oregon as well and was executor for both my parents wills. In my fathers case we really could not find his will - he mysteriously removed it from his safety deposit box a few months before he passed. The probate courts in Oregon require the original will - copies are not acceptable even if it is one being held by an attorney. It worked out as my mother was listed as beneficiary on everything and probate was not even necessary.
Which brings up another idea. Ask an attorney if you can transfer the deed of ownership to the house prior to your mothers death - and if Medicaid is not involved. As guardian you can not transfer it to yourself most likely as it usually is considered a conflict of interest and most guardianship agreements bar that. But perhaps you could create a trust to own the house or perhaps a Transfer Upon Death agreement with all your siblings and figuring out something so that you are equally compensated.
Having dementia doesn’t necessarily make mom incompetent but since you are her guardian then that ship may have sailed.
I agree with polar bear, see a qualified elder attorney. If your mom has many years of care to go you may find she needs Medicaid at some point. If that happens the house could have a lien placed on it. A good lawyer can guide you. You may have to see the home for her care.