|
The situation is this. Mother has assets which the 4 sons are trying to
protect from abuse of any sort. One of the sons assumes a durable power of
attorney and closes the mother's checking and savings accounts and opens
them in his name. Ths step was needed as the mother would take thousands of
dollars out for inconsequential reasons and be carryiing that kind of money
as she went about her daily business.
The problem is that the new accounts are in the one brother's name with no
beneficiaries listed on the account. The brother has a history of heart
problems. If he passes away won't the state get the monies?
Would the preferred solution be that he simply name the other brothers as
co-benificiaries?
Thanks in advance
Gerry
datapro01@yahoo.com
|
| |
| |
"ERD" wrote in misc.legal.moderated:
(Son with power of attorney closed his [possibly] incompetent
mother's bank accounts and opened them in his own name)
The problem is that the new accounts are in the one brother's name with no
beneficiaries listed on the account. The brother has a history of heart
problems. If he passes away won't the state get the monies?
No. The state gets a dead person's assets if the dead person has no
natural heirs: spouse, children, parents, siblings, nieces/nephews,
etc. That's clearly not true here.
Would the preferred solution be that he simply name the other brothers as
co-benificiaries?
No. It's not his money, and there's no reason why it should be in his
name in the first place. It's his mother's money, and there was no
good reason to close her accounts. What should have been done was
change them to a 2-signature account: i.e. the mother can't take
money out without a countersignature from the designated son.
All four sons could be listed as joint beneficiaries on that account;
however, it is MUCH more important that the mother have an up-to-date
will.
From your statement that your mother was drawing out "thousands" of
dollars, it sounds like there's substantial money involved. IMHO it
is a mistake to consider a "tree" question like proper beneficiaries
on an account; instead the mother and son(s) should deal with the
"forest" question: how can they best protect her assets and ensure
that on her death what is left is distributed according to her
wishes? For this you really need an attorney.
One thing an attorney will do is serve as a neutral party respecting
the mother's wishes; otherwise after the mother's death it's going to
be a gigantic family battle of the three sons against the one, who
they will be convinced has enriched himself at their expense. A
lawyer will draw up proper papers so that while some heirs may not be
satisfied at least they are less likely to blame the other son.
--
If you e-mail me from a fake address, your fingers will drop off.
I am not a lawyer; this is not legal advice. When you read anything
legal on the net, always verify it on your own, in light of your
particular circumstances. You may also need to consult a lawyer.
Stan Brown, Oak Road Systems, Tompkins County, New York, USA
http://OakRoadSystems.com
|
| |
| |
ERD wrote:
The situation is this. Mother has assets which the 4 sons are trying to
protect from abuse of any sort. One of the sons assumes a durable power of
attorney and closes the mother's checking and savings accounts and opens
them in his name. Ths step was needed as the mother would take thousands of
dollars out for inconsequential reasons and be carryiing that kind of money
as she went about her daily business.
The problem is that the new accounts are in the one brother's name with no
beneficiaries listed on the account. The brother has a history of heart
problems. If he passes away won't the state get the monies?
Would the preferred solution be that he simply name the other brothers as
co-benificiaries?
Is the brother a conservator for your mom? Or did he just take her money
and is sitting on it? If the latter, why the POA? That is, what are its
terms and why did it come into existence? If your mom just handed over
the money, nobody needs a POA.
As to your question, it depends on who does the preferring. The simple
way to make sure the money is handled by the next brother in line in
case the current POA holder dies is what you say, but that it's not done
implies that POA holder has reason for not doing so.
He may have a mention in his will of what becomes of the money upon his
death.
Personally, I think the entire deal is strange as posted. What you imply
is that your brother is a trustee for his mom's assets, but you don't
say if a trust was formed with your mom as a beneficiary and what occurs
upon her demise (trust dissolution). Bluntly put, I don't have a good
idea of what's up here or why it's up so I can't offer any further advice.
If your mom has significant money which you are in line to inherit, I
think it's worth your while to invest in an hour with a local attorney
who specializes in trusts and estates.
-paul
ianal
|
| |
| |
The situation is this. Mother has assets which the 4 sons are trying to
protect from abuse of any sort.
A laudable goal, assuming Mom is in agreement with it unless she has
legally been declared incompetent.
One of the sons assumes a durable power of
attorney
Whadya mean he "assumes" it? A POA has to be granted in a signed
writing by the person in whose behalf it is being exercised, i.e. Mom.
Did that happen?
and closes the mother's checking and savings accounts and opens
them in his name.
Whether or not the new accounts list him as a trustee, the monies are
being held in a constructive trust on behalf of Mom if he withdrew
them pursuant to a POA. The money in that account is to be used only
for Mom's benefit.
Ths step was needed as the mother would take thousands of
dollars out for inconsequential reasons and be carryiing that kind of money
as she went about her daily business.
But I'm assuming she hasn't been declared incompetent to manage her
own affairs by any court. How does Mom feel about having Son A take
her money out of her control? Even a durable POA can be revoked by
the grantor while still alive and competent. (The "durable" part
means it continues in effect even if the grantor becomes legally
IN-competent. No POA, even a "durable" one, survives death of the
grantor. And all actions under the POA must be undertaken for the
benefit of the grantor, else the holder of the power is in breach of
his fiduciary duty to the grantor.)
The problem is that the new accounts are in the one brother's name with no
beneficiaries listed on the account. The brother has a history of heart
problems. If he passes away won't the state get the monies?
Only if Bro A has no will and no legal heirs. You, his brothers, and
if still living your Mom, would probably inherit from Brother A's
assets if he died first. But IMO your bigger concern is making sure
Bro A has no power to abscond with the assets for his _own_ purposes,
even if he's been honest before and is all sweetness and light at
present. Having a big hunk of money in one's sole name can cause
one's mind to think in a different fashion after awhile. Bro's B, C,
and D should be in on this too, either as co-owners of the account
(simple but crude) or, better, make all 4 bro's co-trustees for the
benefit of Mom. It is, after all, Mom's money.
Would the preferred solution be that he simply name the other brothers as
co-benificiaries?
Mom ought to be in the loop on this. If not, it would be a great idea
to consult an elder care lawyer in your area and get a complete
package of estate protection advice instead of trying the hoime remedy
approach which may wind up leaving all of you very far from your
intended goal with no safe and cheap way to get back to the situation
you wanted, due either to tax consequences, Medicare drawdowns,
absconding trustees, etc. etc. Do Mom a big favor and spend a few
hundred bucks for some real advice. Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
|
| |
| |
|
