Adding Child’s Name to Parent’s Account – Part 2
In last week’s blog post I addressed a common question in our practice - how best to add a child to a parent’s bank account. There are two options - giving the child access as agent under power of attorney or adding the child as a co-owner. This week I explain the pros and cons of each choice. As I explained last week, the power of attorney must specifically reference the action to be taken by the agent in order for a financial institution to accept it. Adding a co-owner to the account requires both owners to sign paperwork with the financial institution reflecting the new owner. An agent under power of attorney can only act as long as the principal is alive. Once Mom passes away, by law the power of attorney is terminated. To access this account after death, the child must gain access thru the probate (if there is a will) or estate administration (if there is no will) process. While this may sound like something to avoid, there are other considerations. By adding the child as a co-owner, if Mom dies first the child will receive at least 1/2 and probably the entire account proceeds by operation of law no matter what the will or
Adding Child’s Name to Parent’s Account – Part 1
In this week’s blog post, I address a question we encounter often in our elder law practice. Should an elderly parent add a child’s name to their account and if so, how can or should it be done? Mom is having difficulty handling her finances, paying her bills etc. or maybe she just would rather not do it any longer and is happy to have her son take over the responsibility. In order for me to write checks on her behalf or move money from one account to another, I need to be authorized to do that. I need the financial institution to allow me access by “adding” me to the account. But, what does that actually mean? Legally, there are two ways to provide such access. One option is that Mom can designate me as a co-owner on any accounts she chooses. A second option is to execute a power of attorney allowing me to access the account(s) as her agent. She can do this by way of a power of attorney in which she can specifically choose the account(s) or she can execute a power of attorney that allows me to access any and all accounts that she has. The written document - a power of attorney -
Is a Damaged Will an Invalid Will? Part 3
In this third post of three, I finish our discussion concerning a recent call we received from Son who discovered that Dad’s will had been accidentally damaged while in Son’s possession. Son had said that one of the Surrogate employees he spoke with told him he had to proceed as if there was no will - under the intestacy laws. As I explained last week, because Dad had not intentionally destroyed it we could not say that he no longer intended it to be his last will so we could not represent to the Surrogate that he didn’t have one. It was simply that part of the document was damaged to the point of being unreadable. Son did, however, have a readable copy. There was, however, another reason proceeding in the correct way mattered. The outcomes would be different because Dad was married to his second wife at the time of his passing and his children were from a different marriage. His will left everything to his children and nothing to his second wife, however, under intestacy laws his wife would stand to inherit a part of his estate. Additionally, Son told me that to his knowledge there was no prenuptial agreement between them waiving a right to
Is a Damaged Will an Invalid Will? Part 2
In my post here last week, I told you about a call we received from Son concerning Dad’s will. The original will had been in Son’s possession but after Dad’s passing he discovered that it had been damaged. Someone spilled liquid on it which had caused parts to be unreadable. When he separated the pages some of them disintegrated in his hands which rendered them unreadable. Son had been given different instructions from 2 different employees at the Surrogate’s office about how to proceed. Rather than focus on trying to determine exactly what he said to each employee I instead asked him about the circumstances of his dad’s signing and then what happened after that until Dad died. He told me that after Dad received the signed will, he asked Son to hold onto it. Son put it in a file cabinet and did not take it out until several years later after Dad died. Son told me that until his death, Dad did not ever tell him that he was signing another will. Likewise Dad did not ever tell him to destroy the one on had in his possession. Son told me that Dad always confided in him so he would have known if Dad had signed a new
Is a Damaged Will an Invalid Will? Part 1
We received a recent call in our office. The caller’s father had passed away leaving a will that had been given by father to son to hold in his possession after Dad had signed it several years earlier. Son retrieved the will after Dad’s passing in order to submit it the Surrogate for the purpose of having the Surrogate deem it to be the “official” last will and appointing Son as the Executor. It was then that he discovered the will had been damaged. Son had stored the will in a drawer. When he retrieved it, he discovered that the drawer contained water. It appeared that someone had spilled water and that it had been there for some time because pages of the will had become illegible. When he attempted to separate the pages some of them simply disintegrated. As a result portions of the original will were no longer readable or no longer existed. Son had called the Surrogate’s office and received conflicting instructions on what to do. At one point he was told he would need to file an application asking a judge to admit a copy of the will. At another point he was told that because the will was destroyed, he would need to proceed as if
Another Reason People Fail to Plan – Part 2
In my previous blog post here I gave you another reason why people fail to plan for a potential crisis . Sometimes personal background or culture plays a role. We received a recent call from a daughter concerning her dad who had been traveling abroad when he had a stroke. The family was able to fly him back to New Jersey to a long term care facility. Dad has no power of attorney or health care directive giving anyone the ability to make medical or financial decisions on his behalf. The family asked about obtaining guardianship over Dad. When I asked more detailed questions about his cognitive awareness, however, they explained that he was able to communicate verbally. It appeared to me that he had a level of capacity and understanding about his situation such that a guardianship application would unlikely to be successful. I told him I thought this was a good thing since a guardianship application is more time consuming and expensive than preparing a power of attorney and health care directive, which it appeared that Dad could execute. I was puzzled, however, about their less than enthusiastic response until they told me that Dad has repeatedly refused to sign these documents because “it’s not how things are