Potential Beneficiary Problems

What is the name of your state? California

My wife and I are both Power of Attorneys for a lady who is currently living in an assisted living facility. She has some minor dementia. The POA is a Uniform Statutory Power of Attorney under California Probate Code 4400. This lady is no longer able to handle any of her own affairs. We have a Trust Attorney we consult with on occasion. He drew up all the paperwork. We also have an accounting firm that we hired to handle all of her income and bill paying. My wife and I oversee everything but I do not want either of us to sign any checks even though all bank accounts are in my name. They are Trust Accounts and I am on the accounts as "Trustee.

I have given the accountant a Power of Attorney strictly so he can sign checks and deposit funds into the various accounts. He gives me a monthly accounting of all income and expenditures and I also keep an eye on the accounts "online".

This lady has a living trust and her home, bank accounts, etc. are in the living trust. The trust is funded. The deed to the home is in my name, "as trustee". My wife is the successor trustee.

I am the executor of her Will and my wife is listed as Executor in the event I could not be for whatever reason. I am the Agent on her Advanced Health Care Directive and my wife is the Alternate Agent.

This lady has never been married and has no children. She has a brother 13 years younger who she has never gotten along with. He has a daughter and a son. His son is married with children. I have known this lady my entire 58 years on this earth. She has always been like a mother to me and was a lifelong friend of my mother who is now gone but that has nothing to do with anything.

I am anticipating problems in the future. Obviously right now this lady is the beneficiary of her living trust and will be as long as she is living. Her Will gives everything to the Trustee of her living trust and the living trust gives her entire estate (home and residual money) to her niece, her niece in law (nephews wife) and myself in equal shares. Originally when she had her trust drawn up she named myself and my wife as her sole Beneficiary. She never signed that trust at our request. My wife and I did not feel that would be fair to her niece or nephew. She did not want to leave anything to her nephew and she insisted my wife and I at least have a share so we agreed on the way it is written up and signed now. She will not discuss anything about her personal life with anyone other than myself, wife and her attorney. The only people that know any details of anything are myself, my wife and the lady's attorney. It will remain that way until she passes away someday.

I am not related to this lady and neither is my wife. The two nieces know that I control their aunts estate and they are more than not happy about that. They do not know details. I cannot give them details and if I could I wouldn't.

I know that someday when the time comes they both want their Aunts home and they both have the money to buy it. They will both fight each other. The home right now is worth about one million in todays lousy real estate market. There will be decisions to be made on how to handle this home. I tend to think that I should just sell it and divide the money from the sale into thirds. I do not want or need the home. My question is: As Trustee is this decision of selling the home strictly my decision? To sell the home to one of them, to sell it to both of them, to sell it to a total stranger etc. my decision. ? Are there easy ways (nothing is easy ) to settle these anticipated problems with these two girls. I know all hell is going to break loose with the niece in law of this lady and her father in law and maybe even her husband. The ladys brother and family are probably the greediest, most cold hearted people I have ever known in my life. Believe me, I will get no credit whatsoever for not allowing this lady to sign the original trust the way she had originally written it up with the attorney. She isnsisted I go with her to the attorneys office when she signed it and that is when we had it changed to include the nieces.

I take this job seriously and want as little trouble as possible and that is why I have things set up with the accountant etc. so that there is no room for accusations even though I have already heard a few ridiculous comments by the brother's family against my wife and I. They are very upset that I control the estate and they don't.

Again, my question is simply, "do I have absolute control as to the disposition of the home when the time comes?"

I have given the accountant a Power of Attorney strictly so he can sign checks and deposit funds into the various accounts.

This is a definite no-no; you have NO authority to give a POA to anyone (unless it is for your own stuff).

Q: Again, my question is simply, "do I have absolute control as to the disposition of the home when the time comes?"

A: No; you have to follow the terms of the trust and/or will.

seniorjudge said:

I have given the accountant a Power of Attorney strictly so he can sign checks and deposit funds into the various accounts.

This is a definite no-no; you have NO authority to give a POA to anyone (unless it is for your own stuff).

Q: Again, my question is simply, "do I have absolute control as to the disposition of the home when the time comes?"

A: No; you have to follow the terms of the trust and/or will.

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Thank you Senior Judge,

I am sorry but I worded the POA giving wrong. I had the attorney draw up the POA for the accountant and the lady signed it in front of the Attorney and it was notarized. It just gives the accountant the power to add and remove funds from her account. He also manages her Schwab account. The reason I did this was because as I had stated earlier, I do not want to sign any checks even though I can if I choose to. Don't need the possible accusations that would generate.

I understand I do have to follow the terms of the trust, no question there. The trust gives me a lot of discretion and that is where the decisions will arise.

JustFactsPlease said:

Thank you Senior Judge,

I am sorry but I worded the POA giving wrong. I had the attorney draw up the POA for the accountant and the lady signed it in front of the Attorney and it was notarized. It just gives the accountant the power to add and remove funds from her account. He also manages her Schwab account. The reason I did this was because as I had stated earlier, I do not want to sign any checks even though I can if I choose to. Don't need the possible accusations that would generate.

I understand I do have to follow the terms of the trust, no question there. The trust gives me a lot of discretion and that is where the decisions will arise.

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Okay, gotcha.

On that discretion business, just do things thinking that some day you may be standing before a judge accounting for every single cent you handled.

Back up your decisions with advice (written) from a lawyer and a CPA.

seniorjudge said:

Okay, gotcha.

On that discretion business, just do things thinking that some day you may be standing before a judge accounting for every single cent you handled.

Back up your decisions with advice (written) from a lawyer and a CPA.

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Thank you, that is exactly why I have both an attorney and a CPA handling all of her affairs and money. That is why I will not sign checks. That is why I recieve a monthly accounting and an annual report of all income and expenditures and why I monitor all accounts.

I have more but it is for another thread.

I will await some more comments. This is kind of fun. I don't get onto too many forums and of course I would never ever take anyone on a forum too seriously but I feel it is good for seeing various experiences people have with some of these topics.

The deed has no business being in your name as trustee--it should be stricly in the name of the trust only. Are you receiving compensation as a trustee?

Your approach to not sign any checks is understandable in theory but you could still be in legal trouble IF it turns out that the accountant or lawyer steals or misappropriates monies from the account because technically you have abdicated your responsibility as trustee by "giving" POA to someone else. You are in a strong legal position as trustee with much authority and your worry about being sued if their are complications is unreasonable. You should consider voiding the POA and taking control of the account yourself and you should be the only one with the authority to sign the checks. If you don't want to be trustee, find another professional trustee at a bank to do so if the trust does not name a secondary trustee. If you are uncertain as to the responsibilities of a trustee, discuss this in detail with a trust attorney or purchase a book about this from the bookstore.

If you keep things as they are now, at least provide some type of protection for the beneficiaries by finding out if the accountant and attorney are bonded and if so which company they are bonded with. And have a background check done on both to make sure there are no serious criminal violations or ethical violations in their history.

DANDY DON IN OKLAHOMA ([email protected])

Dandy Don said:

The deed has no business being in your name as trustee--it should be stricly in the name of the trust only. Are you receiving compensation as a trustee?

Your approach to not sign any checks is understandable in theory but you could still be in legal trouble IF it turns out that the accountant or lawyer steals or misappropriates monies from the account because technically you have abdicated your responsibility as trustee by "giving" POA to someone else. You are in a strong legal position as trustee with much authority and your worry about being sued if their are complications is unreasonable. You should consider voiding the POA and taking control of the account yourself and you should be the only one with the authority to sign the checks. If you don't want to be trustee, find another professional trustee at a bank to do so if the trust does not name a secondary trustee. If you are uncertain as to the responsibilities of a trustee, discuss this in detail with a trust attorney or purchase a book about this from the bookstore.

If you keep things as they are now, at least provide some type of protection for the beneficiaries by finding out if the accountant and attorney are bonded and if so which company they are bonded with. And have a background check done on both to make sure there are no serious criminal violations or ethical violations in their history.

DANDY DON IN OKLAHOMA ([email protected])

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Dandy Don,

I have handled my life with honesty and integrity and I know both the accountant and the attorney who have handled affairs for my grand parents years and years ago.

I hate to tell you this but you are about as full of crap as they come. Your advice is despicable and so are your accusations. Do us all a favor and stay off this thread. Thank you.

One other thing. Having my name on the deed as trustee is exactly the way it is done. You know nothing of what you are talking about. Get a life.

For someone who is looking for assistance, you're pretty rude.

moburkes said:

For someone who is looking for assistance, you're pretty rude.

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I asked a specific question of which Dandy Don did not even address. Whoever he is it is obvious he does not belong on a legal forum giving advice. His comments are completely wrong and he is the rude one insinuating my accountant is dishonest. You are obviously no better if you agree with what he said.

I never said that I agreed with him. I said that you were rude, which you were. When you come to a forum looking for assistance, you can't be rude, or you'll get no helpful responses.

Good luck.

And, by the way, he wouldn't have provided his email address if he was trying to be rude.
Oftentimes, there is an issue that isn't addressed in many people's questions. We try to bring it to your attention in case you didn't realize something.

I'll leave my 2 cents about your situation at the door. I'll provide it to someone who wants the information. You just want to call people names. Apparently, the dictionary that you were brought up using doesn't have many words in it.

moburkes said:

I never said that I agreed with him. I said that you were rude, which you were. When you come to a forum looking for assistance, you can't be rude, or you'll get no helpful responses.

Good luck.

And, by the way, he wouldn't have provided his email address if he was trying to be rude.
Oftentimes, there is an issue that isn't addressed in many people's questions. We try to bring it to your attention in case you didn't realize something.

I'll leave my 2 cents about your situation at the door. I'll provide it to someone who wants the information. You just want to call people names. Apparently, the dictionary that you were brought up using doesn't have many words in it.

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I am a Physician and the dictionairy I was brought up with probably has several words you have never heard of. I have based my life on being accurate. I do not approve of people giving advice that is completely wrong. Your friend Dandy Don is completely incorrect in his response to my question.

My attorney has already explained the answers to my question but on this forum I was just fishing for some possibly logical ways to settle the issue someday. The way I am handling the estate is completely legal and completely honest. My attorney and my accountant have done business for years and are extremely honest and competent. I do not like people making false accusations with no basis. Accusing strangers of stealing, being dishonest etc. is extremely RUDE in my opinion.

I do apologize for my angry response.

Sadly, your original posting reveals your naivety about legal matters. You should not be asking IF you have the authority to sell this home when you originally mentioned that you AND the nieces were going to be beneficiaries of it, according to the trust. You can politely ask them IF they wish to sell, and they MIGHT or MIGHT NOT agree to this.

I never accused the attorney and the accountant of being dishonest--I was only suggesting that it was wise to have them properly checked out--if you find any record of dishonesty it is better to find out now than to let the beneficiaries find out and have ammunition to bring against you in trusting them wholeheartedly. In the interest of prudence and self-protection, it would be wise for you to get a second opinion from another trust attorney--you, yourself, said it was fun to get other opinions.

There are other potential problems with this trust which are sure to bring you problems, which you said you were trying to avoid.

Did anyone ever pay to have this lady's mental competency tested in the past? If the medical records show that she was suffering from dementia or taking medications that would have affected her judgement, either at the time of the signing of the original trust or the revised one, the revised trust could even be declared invalid and the beneficiaries have the right to contest it (too bad you didn't ask your friend to have the original trust destroyed--if the beneficiaries find out about THAT it is more evidence that could be used in their favor to accuse you, rightfully or wrongfully, of undue influence).

Is there any language in the will or in the trust to specifically state her reasons for disinheriting the brother and any clause in there penalizing any one who contests the will or the trust ? If there are, then that is better, and less reason for the nephew to contest it. Just wondering: potential beneficiary problems, indeed!

DANDY DON IN OKLAHOMA ([email protected])

After doctor's nasty ass response/comments, I commend you for even bothering to help out this so called 'physician' any further DD. He'd probably diagnosis his own ailments & would operate on himself too and did I mention he is surely disliked in the medical social circle's as a know-it-all.

Obviously this forum has no standards for who gives legal opinions. What would some of you do without the internet to make yourselves important.

Senior Judge, in my opinion you should be the only one on this forum giving any type of advice. You know what you are talking about.

Dandy Don, I didn't realize you were also a Medical Expert. Jack of all trades, master of none, comes to mind.

JustFactsPlease said:

Thank you, that is exactly why I have both an attorney and a CPA handling all of her affairs and money. That is why I will not sign checks. That is why I recieve a monthly accounting and an annual report of all income and expenditures and why I monitor all accounts.

I have more but it is for another thread.

I will await some more comments. This is kind of fun. I don't get onto too many forums and of course I would never ever take anyone on a forum too seriously but I feel it is good for seeing various experiences people have with some of these topics.

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Keep every receipt of this lady's monies. Regardless if you do not sign any checks, you are fiduciary who is responsible.