Executor of will also has Power of Attorney

[raynkat]

my grandmother passed away and was a long time resident of california. my mother was one of her three children. my grandmother left a will asking that all her assets be divided amonst her 3 children, and if any of her childen precedes her in death, than her children would get the portion. my aunt is the executor and she hasn't provided any details of my Granmother's assets. She also happens to have a power of attorney and has used it to close out bank accounts. How powerful is the power of attorney? can she put all the assets into her name and then keep it all, making the will null and void?? what should we do? she has already admitted to finding an insurance policy that only named the 2 living children, and she has already dispersed the funds? wasn't she supposed to follow the wishes outlined in my grandmothers will?

 

[NoJustice]

Termination of POA

A Power of Attorney becomes invalid when the person dies. I would think your Aunt was using her authority as Executrix of the Will rather than a POA to deal in financial matters.

 

[advisor10]

2-22-2002

DEAR RAYNKAT:

What was the month and year of your grandmother's death? It will take a few months for the estate matters to be resolved, and the executor will eventually have to provide an accounting for all assets she received.

She can not keep all the assets into her name, although that is possible. You must give time for the probate process to play out, and when all assets are claimed and all debts/expenses/taxes/funeral expenses are paid, then what is left over is divided and checks issued to heirs if anything is left.

Have you seen the will and do you know what it says? Normally, the will is supposed to be filed at the county courthouse probate court within 30 days of the person's death. If you haven't seen it, go to the courthouse to find out if it has been filed. If it has been, you can get a copy.

If she admitted to finding the insurance policy with the 2 surviving children's names on it, then those children should immediately ask her for the name of the insurance company and the address and phone number, if that information is already on there. Insurance policies are NOT considered part of an estate, and do not need to go through probate, since the money is payable directly to the beneficiaries, who can spend it any way they want. She probably is not going to voluntarily give that information to you if she thinks you all are not smart enough about estate matters. If she says she has disbursed the funds, that is illegal and improper and she will need to provide proof to you that she did this (copies of checks), or else you will need to complain to the probate court. I think she is bluffing/lying about that, just to keep you all from getting that money. If she doesn't give you all the information about your insurance, consider getting your own attorney and filing a motion with the probate court to have her removed for dishonesty.

SINCERELY,

advisor

 

[raynkat]

My Grandmother passed away last August. I already have a copy of the will and it has a stamp on it from the county Clerk dated in December. It seems to me that nothing is going to Probate though because all thats left of her assets are a home she owned outright, but I'm 99% sure that my Aunt (the Executrix) is on the deed/title. She said at the funeral that she was going to fly to California in May and empty the house out and put it on the market. She can't do that unless she's on the title, correct? At the funeral, she made statements to the effect that she knew the house proceeds would be divided up according to the will, but technically, if she's on the title, she could turn around and keep all the proceeds for herself legally, correct? The rest of my Grandmothers assets are in investments and my Aunt told us that it was a big mess because my Grandmother put investments in each person's name, so won't that mean whatever that investment is worth, goes to whomever's named on it?

 

[raynkat]

Now we have learned that my Aunt, the executor is definitely on the deed to my grandmother's house and she found out that if she sells the house, she will incurr capitol gains tax which may be 40%, so to avoid this she will need to establish residency in california for at least 2 years. we don't know if this means she now plans to keep any money she gains from the sale of the house to herself. if she made statements when the family was gathered after the funeral that she was going to put the house up for sale in may 2002, and settle the will once the house was sold, do the others in the family have any standing on her keeping to her word? everyone in the family knows that although my grandmother put the house in my aunts name, it wasn't meant for my aunt to solely profit from it, that it was something to be divided according to my grandmothers wishes.

 

[advisor10]

2-23-2002

DEAR RAYNKAT:

She will not be able to complete the transaction on selling the home until all heirs/all parties have signed off on it. That is why the heirs or the executor will need a real estate attorney at whatever point the home is sold, to make sure everything is done legally and correctly. At some point during the probate process, the names of the legal heirs need to be added to the title/deed.

Regarding the investments that have the names of other persons, she will eventually have to file a report with the probate court of how these investments are handled, but it is possible that she may try to keep some things secret. So, in the interests of honesty, you all should ask her to make a list of what investments are at which company and also write the names of the people whose names are on each investment. Give her time to do the work of contacting each investment to see if she has the authority to claim each investment as executor, but it also might be possible for each person named (as beneficiary) to have the right to claim this money without it going into probate. She should be willing to tell you all what company each investment is being held at so each person can contact the investment company themselves to find out the procedure for claiming the money. If the executor is the only one that can claim the monies, then she should have the investment companies give her a letter that states that fact officially. If it is the beneficiary, then that needs to be known as well.

SINCERELY,

advisor

 

[raynkat]

Will the house need to go into probate if she is on the deed? I don't believe anything will go into probate at all because my grandmother already paid for the funeral and didn't have any debts whatsoever, so why does anything need to go into probate, especially since my aunt is on the deed? The only thing I wonder though is will my aunt need to set up residency for 2 years in order to sell the house without getting hit with property gains tax, or is there a way for her to sell it legally with the State knowing that it will be divided up to all the heirs to the will?

 

[raynkat]

We finally spoke to my aunt and she is sending us everything she knows. Its true that we won't need to go into Probate because she has everything in her name now, but is following her Mom's wishes and is going to divide accordingly. I guess my siblings were concerned because we all live in different states, one in Florida and one in Maryland, and it makes it hard since our Grandmother lived all the way on the west coast.