Jump to content

Recommended Posts

My aunts husband of 30 years recently passed and left her a living trust of the house they lived in. She is in a dementia facility and me an my cousin are her POA's . Neither of them had children.. We found out that all the joint bank accounts are now hers and that is what she will have to pay her bills for her staying at the assisted living facility . I have so many questions but mainly I was wondering does he have a right to get a percentage of the estate since they were married for 30 years ? Also can the executor sell the house and acreage before she passes away since she is in this facility? Thanks in advance for you feedback 

Share this post


Link to post
Share on other sites
5 hours ago, southpaw22 said:

My aunts husband of 30 years recently passed and left her a living trust of the house they lived in. She is in a dementia facility and me an my cousin are her POA's . Neither of them had children.. We found out that all the joint bank accounts are now hers and that is what she will have to pay her bills for her staying at the assisted living facility . I have so many questions but mainly I was wondering does he have a right to get a percentage of the estate since they were married for 30 years ? Also can the executor sell the house and acreage before she passes away since she is in this facility? Thanks in advance for you feedback 

 

If the house is in trust there must be one or more trustees who you don't identify.  

 

You are not her "POA"s.  A POA is a Power of Attorney, a piece of paper.  You are her agents acting according to the terms of the Power of Attorney.  You give no indication how the Power is related to the trust, if at all, and what powers are granted to you and your cousin.

 

But most curious is your question ". . . does he have a right to get a percentage of the estate since they were married for 30 years?"  Who is he?  Obviously if "he" is the deceased husband, his estate includes whatever is in his name and his share of whatever the couple owned jointly or in common.  He doesn't inherit anything when he dies, he leaves or bequests whatever he owns.  Then you ask whether the "executor" can sell the house and acreage before she passes away.  If the house is "in trust" for your aunt it is not part of the husband's estate and the executor of the husband's estate has no power to sell it, although the trustee may have the power.  The word "executor" implies there was a will.  Without a will the estate would be administered by an "administrator" or "personal representative.  Was there a will and, if so, what authority is granted to the executor under the will?

 

Since you seem to be very confused about the various entities in your question, i.e. the agents, the trustee,  and the executor, and their relative roles, I suggest you and your cousin consult with a local attorney for an hour or so who can help you understand the situtation.  Bring with you copies of the Powers, trust, will, and deeds to the property.

Share this post


Link to post
Share on other sites

 Thank you for your response . In the will it states his wife my aunt will have a life estate in the house, contents and 72 acres. ( I had to go back and read it again) "The executor will have the right to sell any real or personal property and to execute deeds, bills of sale or other documents incidental thereafter and  to perform any other acts which may be necessary to the administration  of the will". Does his wife have the right to a percentage of his estate if it is not written in the will ?  I have no knowledge of law and the lingo but understand your saying we are her "agents" of her Durable Power of Attorney . I hope this will give you a better understanding of my question ..thanks again for your feedback.

Share this post


Link to post
Share on other sites

Obviously the executor has the power to sell the real and personal property if thatis what the will says.  But if the will says the wife retains a life estate, the sale would be subject to that estate and the value of the property would be significantly reduced, at least until she dies.

 

You ask if the wife is entitled to a share of the husband's estate if it is not mentioned in the will.  The answer is generally yes.  If they were married more than nine years, she is entitled to an "elective share" of 40% of the net estate.  However, she must renounce other parts of the will within nine months and take legal action to set aside her share.  It is possible that it would be better for her to not take an elective share if she is subject to dementia and not likely to live very much longer. As her agents you may have the power  to act on her behalf to exercise the elective share option.  If the state is paying for your aunt's care through medicaid or other program they may require the elective share be claimed.

 

If the estate is valuable I strongly urge you to consult local counsel on your aunt's behalf to determine the best course for all involved.  You should be entitled to use the funds under your control as agents to pay for the consultation.   

 

 

Share this post


Link to post
Share on other sites

I will be contacting a lawyer first thing Monday .BTW  the cost for her stay are is out of pocket 5,000 per month . Right now she is not in bad health except for the dementia , she had good days and bad days. Thank you for steering me in the right direction . I felt like I should have gotten her a lawyer but the his family act like she got all the money in the bank accounts from different banks because they were joint. She had money before they married from her first husband but he (2nd husband)  wanted his name put on her accounts because he thought she would go first. The executor has taken things out of the security box at the bank that was in both their names . He said that it was just papers but hasn't given us any more information about what. We were told that the box was hers since it was a joint account but he had  the key. Looks like its going to get complicated.Thank you for steering me in the right direction . 

Share this post


Link to post
Share on other sites

You have confused the issue by titling your posting "Living Trust" when apparently there is no trust.

 

A life estate means that she gets the right to live in the home until she dies.  But apparently that may not happen since you imply she will be going to an assisted living facility.  And so the executor may decide to sell the home after she leaves it.

Share this post


Link to post
Share on other sites
2 minutes ago, knort4 said:

A life estate means that she gets the right to live in the home until she dies.  But apparently that may not happen since you imply she will be going to an assisted living facility.  And so the executor may decide to sell the home after she leaves it.

 

The executor may decide to sell the property when the wife leaves, but the sale will be subject to the life estate unless the wife participates by including her life estate in the sale.  If she is afflicted by dementia, as indicated elsewhere, unless the powers of attorney authorize the agents to do so, there may have to be court authority to waive or sell her interest.  It is not that simple.

Share this post


Link to post
Share on other sites

.You have confused the issue by titling your posting "Living Trust" when apparently there is no trusts

I am sorry to have titled my thread wrong...I went back to read his will as stated in my first reply . It was a life estate. She had already left the home before he died . They both were in assisted living . I didn't know if the executor could sell the house if she is not in it. The lawyer over the estate told me she could rent the house out if she wished to help cover her bills. Being he said that I didn't think the house could be sold. 

 

Share this post


Link to post
Share on other sites
5 hours ago, RetiredinVA said:

 

The executor may decide to sell the property when the wife leaves, but the sale will be subject to the life estate unless the wife participates by including her life estate in the sale.  If she is afflicted by dementia, as indicated elsewhere, unless the powers of attorney authorize the agents to do so, there may have to be court authority to waive or sell her interest.  It is not that simple.

If they do sell the home and 72 acres if she doesn't have a lawyer to represent her she will not get anything for the 30 years she had contributed to the farm .She spend her money on the home and repairs and livestock etc. We as her agent's can file what is needed for her and also get her a lawyer. We have tried to be civil and co-operative to his family and not even bring up the point that he left her with Life Estate and nothing else . Now his family want her to pay the executor fees and lawyer fees and his funeral out of the money she has from joint accounts that are now in her name . I was told at their bank that he has an account in his name only that would be considered a large estate that they could pay all the bills for the estate out of and they need to set up an estate account for that . They have not attempted to do so yet . Thanks again and I'm sorry for the confusion .

Share this post


Link to post
Share on other sites
11 hours ago, doucar said:

BUT, if the house is in fact in a living trust, then the provisions of the will dealing with the house are not effective, the terms of the trust are what are controlling.

It is a Life Estate ..sorry I had to go back and read the will to correct my statement. Thank you for your help 

Share this post


Link to post
Share on other sites

 

On 6/2/2017 at 10:56 PM, southpaw22 said:

mainly I was wondering does he have a right to get a percentage of the estate since they were married for 30 years ?

 

Who is "he"?  If you're talking about your aunt's husband, then the question makes no sense.  The only other persons mentioned in your post are your aunt (who obviously isn't a "he") and your cousin.  Whether your cousin is entitled to anything from your uncle's estate isn't apparent from your post; it depends on the terms of your uncle's will (if he had one) or whether this cousin is your uncle's child or also a nephew of your uncle (and if so, whether he's related by blood).

 

 

On 6/2/2017 at 10:56 PM, southpaw22 said:

can the executor sell the house and acreage before she passes away since she is in this facility?

 

As far as I can tell from all the follow up posts, your references to a "trust" were in error.  With respect to the life estate, the executor may have to sell the house to pay estate debt, but he or she cannot otherwise sell the house in derogation of the life estate.  Of course, if your aunt is in assisted living, then you, as agent under the POA, might want to discuss with the executor whether the house should be sold with some of the sale proceeds going to your aunt to assist with payment for her living expenses.  Whoever was nominated in the will to serve as executor should consult with a local attorney about the process of commencing probate and actually being appointed as executor.

Share this post


Link to post
Share on other sites
4 hours ago, pg1067 said:

 

 

Who is "he"?  If you're talking about your aunt's husband, then the question makes no sense.  The only other persons mentioned in your post are your aunt (who obviously isn't a "he") and your cousin.  Whether your cousin is entitled to anything from your uncle's estate isn't apparent from your post; it depends on the terms of your uncle's will (if he had one) or whether this cousin is your uncle's child or also a nephew of your uncle (and if so, whether he's related by blood).

An error on my part. I meant "she" his wife , my aunt.. The executor is a nephew of the deceased.

 

 

As far as I can tell from all the follow up posts, your references to a "trust" were in error.  With respect to the life estate, the executor may have to sell the house to pay estate debt, but he or she cannot otherwise sell the house in derogation of the life estate.  Of course, if your aunt is in assisted living, then you, as agent under the POA, might want to discuss with the executor whether the house should be sold with some of the sale proceeds going to your aunt to assist with payment for her living expenses.  Whoever was nominated in the will to serve as executor should consult with a local attorney about the process of commencing probate and actually being appointed as executor.

 The executor has already been working with the deceased's lawyer on his duties . 

 The executor told me that the since she will be getting the money in their joint accounts that all the beneficiaries of his will think my aunt should pay his funeral cost , lawyers fees and executor fees out of her accounts since the accounts were joint. I was told by the bank president that he had a separate account at the same bank that they need to set up as the estate account and that it would be considered a large estate. Does he have to pay for the funeral cost ?

 

Share this post


Link to post
Share on other sites

When you quote what someone else has written, please do not respond within the quote box.  It makes your post very difficult to read.

 

 

1 hour ago, southpaw22 said:

An error on my part. I meant "she" his wife , my aunt.. The executor is a nephew of the deceased.

 

Ok, so then the question is whether your aunt has "a right to get a percentage of the estate since they were married for 30 years."  The answer to that question is probably.  Specifics depend on the wording of the will and the applicable state law regarding the spousal elective share.

 

 

1 hour ago, southpaw22 said:

The executor told me that the since she will be getting the money in their joint accounts that all the beneficiaries of his will think my aunt should pay his funeral cost , lawyers fees and executor fees out of her accounts since the accounts were joint.

 

Who cares what the executor thinks other beneficiaries will think?  If you care about what these persons think, ask them.

 

 

1 hour ago, southpaw22 said:

I was told by the bank president that he had a separate account at the same bank that they need to set up as the estate account and that it would be considered a large estate. Does he have to pay for the funeral cost ?

 

Why would the bank president pay for your uncle's funeral?  I can't figure out whom else you might be referring to in this question.

 

You didn't say how long ago your uncle died, but no one is legally obligated to pay for a funeral.  However, whoever incurs that expense has a priority claim against the estate for reimbursement.

Share this post


Link to post
Share on other sites

We just want to do the right thing for our aunt to make sure she has enough money to live and be taken care of for the rest of her time . I don't care what they think she should do with her money , she has contributed to the bank account (they had several different bank accounts) for 30 years and had money when they married .Her  now deceased husband took money from their joint account and put it in an account for himself(she didn't know he did that for a year) . He sold some property (his ) about two years ago for $60,000 and put it in his account(we think he put in bank or safety deposit box ) so I know there is enough money to pay expenses from his own account . I didn't mean the bank president pay I meant the money from his (deceased husband ) account . Husband died April 26th 2017.  I hope this clears up my post .Thank you for reply

Share this post


Link to post
Share on other sites

Sad to say our Aunt passed away tonight and we are going to let her husbands family have it all . We wanted to fight for what is hers but now she is gone we just don't want to do it. They still are insisting that we pay for his funeral out of her money and now she has to pay for her own  also. Thank you for all the advise

Share this post


Link to post
Share on other sites
4 hours ago, Tanveer79 said:

A living trust is a trust in which you put your assets during your lifetime. A typical living trust package drafted by an attorney costs somewhere around $2,000. Although this is not a small amount of money, $2,000 is a lot less than probate fees. More about living trust can be find here. TYRE LAW GROUP

 

Note that whether a living trust is less expensive than probate depends on the details of the person’s assets and the cost of probate in their state. In some states it is not always the case that a living trust is less expensive. Trust promoters (and I’m guessing the firm you advertise for is one of them) like to give the impression that probate is always grossly expensive and should be avoided at all costs, and that is simply not the case. Living trusts are useful for some, but are not the answer for everyone.

Share this post


Link to post
Share on other sites
23 hours ago, Tanveer79 said:

A living trust is a trust in which you put your assets during your lifetime. 


Why would anyone want to use a lawyer who is either too dumb to have read and understood this site's rules against spam and advertising or so unethical as to violate said rules?  You must be one or the other:  dumb or unethical.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

×
×
  • Create New...