Loved one has a will in place but was hoping that there is a way to put one of the family members over the will and to have final say so over it , after their death. Besides an attorney...?
Has someone designated a Personal Representative/Executrix or Executor who's not a family member? It sounds like that's the underlying goal in your question.
POAs end on death, and the PR/E would address handling the Will and its terms, unless there's a Trust - then the Trustee would manage the Trust and the Pour-Over Will (which links to the Trust).
The Executor of the will can be anyone, and usually is a close family member. The Attorney is simply a necessary law specialist who is paid to ensure the will and all applicable laws are followed.
I have POA that continues after death. You have to have an attorney include that in the POA wording. I am also the Executor over my Mom's Will. Also if you want to be able to keep things out of probate have the house Deeded to one of the surviving children before death. The bank accounts should have at least one of the surviving childrends name on it as well. Otherwise these things will go into probate upon death. My best suggestion is to get an attorney who is an expert in elder law.
Also if your parent (s) have any debts, as an executor you have the right to choose when to open the estate. Creditors only have six months to claim anything against the estate. If you chose the keep the estate closed for an extended peroid of time after the six months you have the right to do that. Once the six months is up creditors can no longer lay claims against the estate.
Unsecured debts like credit cards go away after death. If both parents have credit cards or other unsecured debts but the debt is in the dying parents name only, the surviving parent is not responsible for the debt (s) after the other's death. I wish I had known thisvwhen my Dad died. My Mom paid off all of his credit card debt even though she really didn't have the money too. She lost half of his SS when he died as well. So my Mom had a difficult time financially after my Dad died. It took a while to recover.
A Power of Attorney terminates upon the death of the "principal" (that is, the person signing it). In order to nominate/appoint someone to manage your affairs after your death, you must put that in a will (naming the person as your executor) or trust (naming them as your trustee).
Debt does not just go away with the death of the debtor. State law determines how the estate is paid out. In Ohio first is the cost of settling the estate (filing fees, attorney), executor or administrator's fee, funeral expenses, & taxes. Then the creditor's get what they are owed and, if there's anything left over it goes to the beneficiaries. I don't know about waiting the six month's to file to avoid creditors. Seems like it would be common practice, although shady, if true.
In Arizona the statute does NOT terminate the power of attorney at death. 14-5501. Durable power of attorney; creation; validity A. A durable power of attorney is a written instrument by which a principal designates another person as the principal's agent. The instrument shall contain words that demonstrate the principal's intent that the authority conferred in the durable power of attorney may be exercised: 1. If the principal is subsequently a person with a disability or incapacitated. 2. Regardless of how much time has elapsed, unless the instrument states a definite termination time. B. The written instrument may demonstrate the principal's intent required by subsection A of this section using either of the following statements or similar language: 1. "This power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time." 2. "This power of attorney is effective on the disability or incapacity of the principal." C. A power of attorney executed in another jurisdiction of the United States is valid in this state if the power of attorney was validly executed in the jurisdiction in which it was created.
NOTICE: The Arizona Revised Statute has no language terminating the agent relationship at death. HOWEVER, even if the power of attorney states it is valid after the principal passes away, you need a third party to honor the document; and your challenge is getting a bank, a credit union or Motor Vehicle to honor the power of attorney after the person passes.
Most of the time in order to act as the Executor of a Will or Administrator of an estate, the person has to be approved by the court. The court will issue a document providing the legal authority to the designated person, which most places require in order to act in that position.
I would get legal advice from an attorney in your state regarding what is allowed in your jurisdiction. I would do that without delay, as if the person becomes deceased, it will be too late to get the proper documents signed.
"Expiration By the laws of all states, a power of attorney expires on the death of the principal. More specifically, when an agent learns of the death of a power-of-attorney grantor, he may no longer act as an agent in the principal's place. This means that the agent may legally act on the principal's behalf if he does not yet have knowledge of the principal's death."
and
"Liability If an agent continues to engage in transactions with third parties on behalf of the principal even after learning of the principal's death and, thereby, binds the principal's estate to those transactions, the executor of the principal's estate will have a valid civil claim against the agent for any damages he caused the estate."
Even in Arizona, apparently.
Before death: give power of attorney to the person you most trust to protect you in your best interests.
Planning for after your death: stating it in your will, appoint the person you must trust to carry out your wishes conscientiously as executor of your will / trustee of your estate.
The executor is named by the writer of the will. If there's no will or no executor named in the will anyone can apply to be an administrator. It's up to the probate court to decide if the applicant is qualified. Administrators have to be bonded and jump through a lot of loops that executors can bypass.
My understanding is that POA dissolves upon death; if there is a valid will then whomever is named in the will to be executor can start to secure assets of the estate BUT at the same time they are preparing to open probate so they can get Letters Testamentary to be appointed executor. If the old POA is also the to be named executor all this can be pretty simple transition as they likely have been dealing with finances, medical, etc so they have an idea of what assets & debts (claims or liens) may be lurking out there to be dealt with in probate & know who the heirs are and what assets exist.
Your states laws as to just how probate must be done will determine the sequencing of what has to happen. Some states allow you to do probate "pro se" aka without an atty. Although most do traditional probate with atty. If estate has just a home & car as assets and no debt, you may be able to do a muniment of title to transfer the house /car; a muniment IMHO you can do on your own if you have your wits about you, are comfortable in a courthouse (like you understand what chancery court does) & experience in how deed of trust need will need to be done. Some states have a small estate probate system as well. The vast majority do full probate & get an atty who also serves as the agent (so they get an inquiries & claims against the estate) but the excutor is the one that determines how things get paid, transferred or sold as allowed by law and the type of administration the executor is named to (independent or dependent).
Whatever the situation, a notice to creditors must placed in the newspaper & just how & what circulation depends on your states probate laws. If the executor knows of debts they may send the Notice to possible claim holders and send letters out to heirs notifying them as to probate being opened & making them aware of court/docket info as well. Claims usually are time barred if notice done and claimants don't file with valid documentation of debt plus whatever else probate requires (like affidavits and orders). Probate is IMHO pretty straightforward if family/heirs are in agreement but is very much a required sequencing of exacting paperwork which can have things rejected if not worded or done just right. Nothing happens quickly......
But if there is no will or the will is not proved valid, then what seems to happen is that they are considered to have died intestate. For intestate, for the states I'm familiar with that means all assets escheat to the state and family - all possible heirs - will have to get an atty to do a lineal heirship to establish heirs and get assets of the estate transferred to them if state has no objections.
As far as debt, how dealt with depends on your state. Bnnk described it for OH. For TX, it's a level of claim by class - Claims get paid by class and can be paid proportionally by executor or not at all if no assets exist to pay unsecured claims. I'm admist probate for my mom and this is my 3rd rodeo as executor as I did this for 2 "aunts" last millennium, in my experience you need an atty as most of us just don't know how to do the exact paperwork to have things filed, transferred or sold correctly and plan on allowing at least a year to get things wrapped. If the named in the will executor doesn't have the time or funds to underwrite the expenses of probate, funeral costs & estate management (like if there is no real $ in the estate), they can decline. Judge will name an administrator.
Remember girl - ? for you? Did the deceased get Medicaid?
Thank you, so much for all the helpful information. A little more info to go by: Loved one DOES have a will made out. They DON'T have an executor named. They want me to sign POA papers now and thought that would allow me to be over matters (checking acct, final debts, will, ect) when they pass away. I found out through reading though, that POA is only effective while the person is living... I THINK I need to see about being named executor instead. Just worried it might be complicated with the will already made out. Again, thank you so much!!
How in the world could a will be executed w/o naming an executor/executrix? This wasn't done by an attorney, was it? Was it one of the boiler plate online forms that were downloaded?
This is a disaster in the making. It could result in chaos, inter family fighting, rivalry, stalemate in handling the affairs, unpaid debts, and more.
What needs to be done is that your parents should execute either a new Will or a Codicil (amendment) to the existing Will, naming an Executrix/Executor or Personal Representative. If there is someelse they trust, that peson could either be a Co-E/E/PR or successor in the event you're unable to service.
They can still and should execute POAs so you can help them now. But don't use some boilerplate forms on line - you need a real live estate planning or elder law attorney.
Please please reread Garden 's post. It's spot on to issues. Wills get rejected all the time & judge appoints someone to do probate as a dependent administration probably needing a bond and then oversight on all actions done. Things will move glacially.......
? for you?, is this is holographic will aka a handwritten will? Those can be entered but you may have to find people that knew your parents when they were alive and can prove they were known to them at the time holographic written and will do an affidavit under oath to attest to facts BEFORE judge will allow it to be considered valid. An old will from the 1970's, 1990's may not easily find folks around that will & can do an affidavit in 2016 or whenever probate is done in the future.
Igloo, you raised an issue I hadn't considered - a holographic will.
Remembergirl, if this is the case, you'll need to research your state's statutes, or have an attorney do it for you, to ensure that the holographic will conforms to statutory standards.
Essex - all assets - $ in bank, a home, stamp collection and even clothes - all become assets of the estate of the deceased. Now whether or not traditional full probate needs to be opened depends on just how all those assets were titled when they were alive. Like bank account done POD (pay on death) can be totally zero'd out by whomever is name in the POD, if no pod, the bank will freeze the account.
Alot of times family won't want to pay for probate and just ignores properly transfering ownership of assets -especially a house - to heirs. Family just continues to live in house and pays taxes, repairs, even insurance. Eventually it will be found out and be a total clusterF to deal with. As an aside on this very issue, we went through hurricane Katrina and I did some volunteer work in Lakeview & 7th ward, a lot of property has not been rebuilt and it sitting there blighted a decade later because it was inherited property and never went through probate so true ownership not there. Family who took over grannies or aunties property years before could not show ownership so no lending, grants, FEMA or other funds. If there are a lot of heirs, each of them would need to sign off for any lending or get bought out of & paid for their share to sign a relinquishment. And there always is a worthless nephew out there who won't sell or sign or (worse) has all sorts of judgements against him and those get placed on the property. Plus the taxes on the property - since it still was in the deceased name - were likely done at the wrong rate so there a hefty fine plus interest by assessor which has to be cleared to ever transfer ownership.
If there are debts, those should be paid if feasible. The costs to do funeral & probate should be paid out of the 10k first. Some courts have small estates affidavit to handle these situations. Google the courthouse to see what's what.
An estate is anything, money or personal property that remains in the name of the decedent. For example a bank account (even if only $100); a car, a boat, a wave runner, a trailer. This is a very modest example, but it is still something left in someone's name. If a person holds a bank account, real property or even a yacht/vehicle as joint tenancy with rights of survivorship, the estate automatically passes to the other named owner upon the passing of the co-owner.
POAs end on death, and the PR/E would address handling the Will and its terms, unless there's a Trust - then the Trustee would manage the Trust and the Pour-Over Will (which links to the Trust).
Also if your parent (s) have any debts, as an executor you have the right to choose when to open the estate. Creditors only have six months to claim anything against the estate. If you chose the keep the estate closed for an extended peroid of time after the six months you have the right to do that. Once the six months is up creditors can no longer lay claims against the estate.
Unsecured debts like credit cards go away after death. If both parents have credit cards or other unsecured debts but the debt is in the dying parents name only, the surviving parent is not responsible for the debt (s) after the other's death. I wish I had known thisvwhen my Dad died. My Mom paid off all of his credit card debt even though she really didn't have the money too. She lost half of his SS when he died as well. So my Mom had a difficult time financially after my Dad died. It took a while to recover.
14-5501. Durable power of attorney; creation; validity
A. A durable power of attorney is a written instrument by which a principal designates another person as the principal's agent. The instrument shall contain words that demonstrate the principal's intent that the authority conferred in the durable power of attorney may be exercised:
1. If the principal is subsequently a person with a disability or incapacitated.
2. Regardless of how much time has elapsed, unless the instrument states a definite termination time.
B. The written instrument may demonstrate the principal's intent required by subsection A of this section using either of the following statements or similar language:
1. "This power of attorney is not affected by subsequent disability or incapacity of the principal or lapse of time."
2. "This power of attorney is effective on the disability or incapacity of the principal."
C. A power of attorney executed in another jurisdiction of the United States is valid in this state if the power of attorney was validly executed in the jurisdiction in which it was created.
NOTICE: The Arizona Revised Statute has no language terminating the agent relationship at death. HOWEVER, even if the power of attorney states it is valid after the principal passes away, you need a third party to honor the document; and your challenge is getting a bank, a credit union or Motor Vehicle to honor the power of attorney after the person passes.
I would get legal advice from an attorney in your state regarding what is allowed in your jurisdiction. I would do that without delay, as if the person becomes deceased, it will be too late to get the proper documents signed.
By the laws of all states, a power of attorney expires on the death of the principal. More specifically, when an agent learns of the death of a power-of-attorney grantor, he may no longer act as an agent in the principal's place. This means that the agent may legally act on the principal's behalf if he does not yet have knowledge of the principal's death."
and
"Liability
If an agent continues to engage in transactions with third parties on behalf of the principal even after learning of the principal's death and, thereby, binds the principal's estate to those transactions, the executor of the principal's estate will have a valid civil claim against the agent for any damages he caused the estate."
Even in Arizona, apparently.
Before death: give power of attorney to the person you most trust to protect you in your best interests.
Planning for after your death: stating it in your will, appoint the person you must trust to carry out your wishes conscientiously as executor of your will / trustee of your estate.
Your states laws as to just how probate must be done will determine the sequencing of what has to happen. Some states allow you to do probate "pro se" aka without an atty. Although most do traditional probate with atty. If estate has just a home & car as assets and no debt, you may be able to do a muniment of title to transfer the house /car; a muniment IMHO you can do on your own if you have your wits about you, are comfortable in a courthouse (like you understand what chancery court does) & experience in how deed of trust need will need to be done. Some states have a small estate probate system as well. The vast majority do full probate & get an atty who also serves as the agent (so they get an inquiries & claims against the estate) but the excutor is the one that determines how things get paid, transferred or sold as allowed by law and the type of administration the executor is named to (independent or dependent).
Whatever the situation, a notice to creditors must placed in the newspaper & just how & what circulation depends on your states probate laws. If the executor knows of debts they may send the Notice to possible claim holders and send letters out to heirs notifying them as to probate being opened & making them aware of court/docket info as well. Claims usually are time barred if notice done and claimants don't file with valid documentation of debt plus whatever else probate requires (like affidavits and orders). Probate is IMHO pretty straightforward if family/heirs are in agreement but is very much a required sequencing of exacting paperwork which can have things rejected if not worded or done just right. Nothing happens quickly......
But if there is no will or the will is not proved valid, then what seems to happen is that they are considered to have died intestate. For intestate, for the states I'm familiar with that means all assets escheat to the state and family - all possible heirs - will have to get an atty to do a lineal heirship to establish heirs and get assets of the estate transferred to them if state has no objections.
As far as debt, how dealt with depends on your state. Bnnk described it for OH. For TX, it's a level of claim by class - Claims get paid by class and can be paid proportionally by executor or not at all if no assets exist to pay unsecured claims.
I'm admist probate for my mom and this is my 3rd rodeo as executor as I did this for 2 "aunts" last millennium, in my experience you need an atty as most of us just don't know how to do the exact paperwork to have things filed, transferred or sold correctly and plan on allowing at least a year to get things wrapped. If the named in the will executor doesn't have the time or funds to underwrite the expenses of probate, funeral costs & estate management (like if there is no real $ in the estate), they can decline. Judge will name an administrator.
Remember girl - ? for you? Did the deceased get Medicaid?
A little more info to go by:
Loved one DOES have a will made out. They DON'T have an executor named. They want me to sign POA papers now and thought that would allow me to be over matters (checking acct, final debts, will, ect) when they pass away. I found out through reading though, that POA is only effective while the person is living...
I THINK I need to see about being named executor instead. Just worried it might be complicated with the will already made out.
Again, thank you so much!!
This is a disaster in the making. It could result in chaos, inter family fighting, rivalry, stalemate in handling the affairs, unpaid debts, and more.
What needs to be done is that your parents should execute either a new Will or a Codicil (amendment) to the existing Will, naming an Executrix/Executor or Personal Representative. If there is someelse they trust, that peson could either be a Co-E/E/PR or successor in the event you're unable to service.
They can still and should execute POAs so you can help them now. But don't use some boilerplate forms on line - you need a real live estate planning or elder law attorney.
Things will move glacially.......
? for you?, is this is holographic will aka a handwritten will? Those can be entered but you may have to find people that knew your parents when they were alive and can prove they were known to them at the time holographic written and will do an affidavit under oath to attest to facts BEFORE judge will allow it to be considered valid. An old will from the 1970's, 1990's may not easily find folks around that will & can do an affidavit in 2016 or whenever probate is done in the future.
Spend the $ and get legal done.
Remembergirl, if this is the case, you'll need to research your state's statutes, or have an attorney do it for you, to ensure that the holographic will conforms to statutory standards.
Alot of times family won't want to pay for probate and just ignores properly transfering ownership of assets -especially a house - to heirs. Family just continues to live in house and pays taxes, repairs, even insurance. Eventually it will be found out and be a total clusterF to deal with. As an aside on this very issue, we went through hurricane Katrina and I did some volunteer work in Lakeview & 7th ward, a lot of property has not been rebuilt and it sitting there blighted a decade later because it was inherited property and never went through probate so true ownership not there. Family who took over grannies or aunties property years before could not show ownership so no lending, grants, FEMA or other funds. If there are a lot of heirs, each of them would need to sign off for any lending or get bought out of & paid for their share to sign a relinquishment. And there always is a worthless nephew out there who won't sell or sign or (worse) has all sorts of judgements against him and those get placed on the property. Plus the taxes on the property - since it still was in the deceased name - were likely done at the wrong rate so there a hefty fine plus interest by assessor which has to be cleared to ever transfer ownership.
If there are debts, those should be paid if feasible. The costs to do funeral & probate should be paid out of the 10k first. Some courts have small estates affidavit to handle these situations. Google the courthouse to see what's what.