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Asked 11/11/2010
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Can someone named power of attorney legally gift themselves the person whom they have power of attorney with, their property? My sister was named POA by my mother, 2 weeks before my mother passed, my sister found a lawyer that allowed her to gift herself my mother's home. My mother had a will at the courthouse which had an executor named which was not the sister holding the POA. The will stated that everything in my mother's estate be shared by all 4 children and share alike. But with this sister gifting herself my mother's home and contents before she died we've been told that what she done is legal, and there is nothing left to be devided. Since, we have learned of a 401K and this sister is trying to get it as well, along with a paid life insurance policy that she has in her possession in my mother's home. I am the youngest of 4 and so I was the last one at home, leaving some of my childhood belongings with my mother in her house, along with my wedding album and many keepsakes. My sister will not let me have any of these things. Can I legally get these things? What can we do about all this? Was it legal for her to have gifted the house and contents to herself? Can she get the 401 K? Also, the Life INs. Policy how can we get it? |
Answer 1/3 - Submitted 11/12/2010
Power of attorney normally ceases after a person dies. The executor of the estate is responsible for making sure the wishes of the deceased are carried out. You should contact the clerk of court to find out just how the title to the property changed. It more than likely was not legal. Also, if you know the name of the life insurance company, you should contact them to see if you are a beneficiary.
Answer 2/3 - Submitted 11/12/2010
Hi, BonnieLee, and welcome to WebAnswers, although I am sorry it is under these wretched circumstances.
What your sister did regarding the house was legal, but it might not survive a proper challenge, considering the will, which I assume has been entered into probate, right? I am not sure how the contents of the house were gifted other than the appliances that came with the house.
Everything else your sister has done borders on the criminal, and the three of you siblings must take actions against her. The insurance policy should have named a beneficiary, or beneficiaries, and a call to the insurance provider should clear-up that "mystery". The 401K should have also named a beneficiary or beneficiaries.
If you have not yet done so, you need to MEET with the executor of the estate and discuss your concerns. If somehow the executor is in collusion with your sister, you will need to mount a challenge in probate court.
You should consult with a COMPETENT estate attorney within the community where your mother lived prior to her passing.
I hope this helpful to you. Thank you for choosing WebAnswers as your sourceĀ.
Answer 3/3 - Submitted 11/12/2010
A durable POA does not NECESSARILY allow the change intitle to property. as both of teh above stated, after death, the maker is deceased and so is the POA. You obviously need an atty that willa ctually file the necessary contest to these property transfers.
since both of the above already covered the main legal issues, I will add that a POA is not valid if the maker is not of sound mind, bluntly stated a person not able to handle their own affairs are not able to make the judment neccessary to make a POA. a catch 22. Though some durable POA's do cover mental disease, i fthis one didn't explicitly state such, then a challenge arises then, Further, ther must be a REASON to change ownership. The ONLY reason I can think of, based on your fact pattern, is self serving and to twart probate.
POA's are vastly misunderstood, they are NOT the same as an executor "befor edeath" the maker STILL has all their own power of decision, so why ( I would ask) didn't the maker sign over the property , i fthat wa struly her will to do so?
I advise you to find reputable counsel whos epractice is in trust and wills, and doe stheir own litigation. and challenge every effort that your sister has made; as the will is in conflict with the sisters actions. enough proof for most courts.
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