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VeraCaUSA

Death of Spouse without a Will

12 posts in this topic

A married man gives son Power of Attorney before his death, at which point son transfers the house which was in dad's name only into his name (the father paid cash for the property while married to his son's step-mom),  withdraws all the money from his bank account which was in his father's name only, changes the name of the beneficiary on his life insurance policy from his step mom to himself, removes tools and equipment of value from the residence that his dad and step mom resided.  Does the POA give the son the legal right to take possession of community property acquired during the marriage?

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The answer is found in the CA Power of Attorney statute sections on duties and obligations of the Attorney-In-Fact.

 

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=4.5.&title=&part=2.&chapter=4.&article=2

 

Seems to me that he has violated the statute to a considerable extent and the stepmom would have some serious recourse if she was willing and able to sue him.

 

"Willing and able" means having the money to hire an attorney, in case you were wondering.

 

 

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1 hour ago, VeraCaUSA said:

A married man gives son Power of Attorney before his death, at which point son transfers the house which was in dad's name only into his name

 

Power of attorney for what purpose(s)?

 

What does "at which point" mean?  Does it mean that the son transferred title to the home after obtaining the power of attorney but while the father was still alive?  Or did he not transfer title until after the father's death?

 

 

1 hour ago, VeraCaUSA said:

the house which was in dad's name only into his name (the father paid cash for the property while married to his son's step-mom)

 

What was the source of this cash?

 

 

1 hour ago, VeraCaUSA said:

withdraws all the money from his bank account which was in his father's name only

 

When did this happen in relationship to the father's death.  Did this account designate a pay-on-death beneficiary?  If so, who was the designated beneficiary?

 

 

1 hour ago, VeraCaUSA said:

changes the name of the beneficiary on his life insurance policy from his step mom to himself

 

When did this happen in relation to the father's death, and how was this accomplished?

 

 

1 hour ago, VeraCaUSA said:

Does the POA give the son the legal right to take possession of community property acquired during the marriage?

 

We have no idea what the POA said (because you didn't tell us).  Please answer the questions I asked, and we can provide better responses.

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3 hours ago, adjusterjack said:

The answer is found in the CA Power of Attorney statute sections on duties and obligations of the Attorney-In-Fact.

 

http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=4.5.&title=&part=2.&chapter=4.&article=2

 

Seems to me that he has violated the statute to a considerable extent and the stepmom would have some serious recourse if she was willing and able to sue him.

 

"Willing and able" means having the money to hire an attorney, in case you were wondering.

 

 

Sorry about the confusion, I didn't notice the selection of the State when posting yet the State is Texas.

 

Since I posted the question about the house in another thread, the reason I posted this was to expound upon the use of the POA as in the bank accounts and other property.  

 

But you answer is sufficient to lead me in the right directions regarding obligations of the Attorney-in-Fact statues for Texas.  Thank You.

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3 hours ago, pg1067 said:

Power of attorney for what purpose(s)?

 

According to the wife it was done so the son could remove the monies from his father's account so that he could qualify for long term health care in a rest home through medicaid since his medicare benefits would not cover it 100%, or rather he did want to give up his check since the nursing home would only give him $30 a month out of his Social Security benefit check, the rest would be for to cover his stay.

3 hours ago, pg1067 said:

What does "at which point" mean?  Does it mean that the son transferred title to the home after obtaining the power of attorney but while the father was still alive?  Or did he not transfer title until after the father's death?

Once the son received the POA, but before the father passed away unexpectedly.

 

The deed was transferred by the son before the father had passed away.

3 hours ago, pg1067 said:

What was the source of this cash?

The purchase of the house was while the wife was the sole support of the marriage, her husbands was disabled in the process of applying for SSI benefits.

 

3 hours ago, pg1067 said:

When did this happen in relationship to the father's death.  Did this account designate a pay-on-death beneficiary?  If so, who was the designated beneficiary?

Prior to the father's death.  The beneficiary was in the wife's name before the son changed the beneficiary to his minor child.  

 

3 hours ago, pg1067 said:

When did this happen in relation to the father's death, and how was this accomplished?

 

Prior to the father's death.  By using the POA.

 

3 hours ago, pg1067 said:

We have no idea what the POA said (because you didn't tell us).  Please answer the questions I asked, and we can provide better responses.

Have no idea what the POA said since the wife did not receive a copy of it.

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14 hours ago, VeraCaUSA said:

according to the wife it was done so the son could remove the monies from his father's account so that he could qualify for long term health care in a rest home through medicaid

 

So, the purpose was to commit Medicaid fraud.  However, my question wasn't clear.  What I intended to ask what what power/authority did the POA gave to your father's son?

 

 

14 hours ago, VeraCaUSA said:
17 hours ago, pg1067 said:

What does "at which point" mean?  Does it mean that the son transferred title to the home after obtaining the power of attorney but while the father was still alive?  Or did he not transfer title until after the father's death?

 

Once the son received the POA, but before the father passed away unexpectedly.

 

The deed was transferred by the son before the father had passed away.

 

OK.  Since this happened while your father was still alive, the authority conferred by the POA was still in effect.  However, the transfer of title was an act of self-dealing that is subject to being set aside.  Of course, I'm guessing that this transfer was also done as part of the Medicaid fraud scheme, which means the self-dealing may not have been improper (notwithstanding that the transfer could be set aside as part of an effort by Medicaid to recover benefits paid).

 

 

14 hours ago, VeraCaUSA said:
17 hours ago, pg1067 said:

What was the source of this cash?

 

The purchase of the house was while the wife was the sole support of the marriage, her husbands was disabled in the process of applying for SSI benefits.

 

That doesn't clearly answer my question, but it sounds like the funds used probably were community property funds.

 

 

14 hours ago, VeraCaUSA said:
17 hours ago, pg1067 said:

When did this happen in relationship to the father's death.  Did this account designate a pay-on-death beneficiary?  If so, who was the designated beneficiary?

 

Prior to the father's death.  The beneficiary was in the wife's name before the son changed the beneficiary to his minor child.

 

My comments about the transfer of title in the home apply equally here.

 

 

14 hours ago, VeraCaUSA said:
17 hours ago, pg1067 said:
18 hours ago, VeraCaUSA said:

changes the name of the beneficiary on his life insurance policy from his step mom to himself

 

When did this happen in relation to the father's death, and how was this accomplished?

 

Prior to the father's death.  By using the POA.

 

Subject to what type of life insurance policy this was, some or all of my comments about the transfer of the title of the home may apply here.  At a minimum, this was an act of self-dealing that is subject to being set aside.

 

Your stepmother should be consulting with a local attorney ASAP.  She (or you) probably will need to probate your father's estate and take action against your brother (either in the probate court or, possibly, in a separate civil lawsuit).  The Medicaid fraud scheme likely will complicate things significantly.

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The beneficiary designation change is definitely illegal using the POA (if the father did not sign the document to approve such a change).

You or your attorney should immediately notify the insurance company that this will be challenged and instruct the insurance company not to make a payout.  If payout has already been made, then your attorney can give you counsel as to what the next step should be.  If your probate attorney is not experienced enough or is unwilling to deal with the insurance company, you can retain the services of an attorney who specializes in insurance interpleader cases to handle this for you.

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23 hours ago, knort4 said:

The beneficiary designation change is definitely illegal using the POA (if the father did not sign the document to approve such a change).

 

You're right.  It's "definitely illegal"...unless it's not.

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