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A power of attorney loses their power at death. If the POA remains as co-account holder on a bank account there could be conflicts. Also take into consideration the possibility that the powerless POA may be the executor and majority beneficiary. If that turns out be the scenario (hypothetical) then existing and surviving heirs may have some sort of legal recourse depending on how it plays out. Your comments on why the POA should NOT be the executor and co-bank account holder. Loss of POA power at death but they remain with alot of power. Thanks.
There's no reason a beneficiary can't be executor. Beneficiaries often are. And there are laws that dictate how an executor must act on behalf of the estate. If there is any misfeasance or malfeasance on the executor's part then the other heirs have legal recourse.
As for the co-owner (joint) account, depending on whatever state this is happening in it could automatically be a survivor account where the living account holder gets all the money or it might not be a survivor account or it might take a lawsuit to prove it one way or the other.
This is something the testator should deal with while he/she is still alive.
The following article deals with NY law but is indicative of the problems that could arise after the death of one of the account holders.
If the testator believes that there may be dissention among the heirs after his/her death then it's necessary for the testator to have an estate attorney set things up properly while still alive.
Bank and investment accounts can have beneficiaries named... payable on death (POD) or transfer on death (TOD) This is often preferable to having a joint account. The POD or TOD can name multiple beneficiaries by percent. So for example, each of 2 children can be named for 50% This would be separate from the person who is named POA on the account.
I would think that for most of us the person we select for the POA, Administrator, and Beneficiary could be the same and I see no reason to avoid this. Yes there could be problems if they did not do the job properly.
If the testator believes that there may be dissention among the heirs after his/her death then it's necessary for the testator to have an estate attorney set things up properly while still alive.
It's not just those that worry about dissension. ANYONE who has 'substantial' assets should consult an estate attorney. (Admitedly, 'substantial' is a subjective dollar amount.)
From the above link: Additional factors the courts have relied upon in support of the presumption of survivorship rights are a joint holder making withdrawals from the account for his or her sole benefit, the decedent receiving statements and cancelled checks for the account.
The scenario is that as POA and joint account holder they are paying the bills, access to all financial accounts and all the funds. The likely purpose could be that the surviving account holder can more easily just write a check to any beneficiaries of financial assets. That in itself is quite troubling since trust is a big factor as far as the POA and powers after death.
From the above link: Additional factors the courts have relied upon in support of the presumption of survivorship rights are a joint holder making withdrawals from the account for his or her sole benefit, the decedent receiving statements and cancelled checks for the account.
The scenario is that as POA and joint account holder they are paying the bills, access to all financial accounts and all the funds. The likely purpose could be that the surviving account holder can more easily just write a check to any beneficiaries of financial assets. That in itself is quite troubling since trust is a big factor as far as the POA and powers after death.
Read up on the POD and TOD I mentioned above. After death the account goes to the named beneficiaries. All you need to do is show the death certificate to the bank.
POA ends at death. If you have a joint account you don't need a POA to write checks or make withdrawals.
I am assuming you are not asking about a spouse's account.
A power of attorney loses their power at death. If the POA remains as co-account holder on a bank account there could be conflicts. Also take into consideration the possibility that the powerless POA may be the executor and majority beneficiary. If that turns out be the scenario (hypothetical) then existing and surviving heirs may have some sort of legal recourse depending on how it plays out. Your comments on why the POA should NOT be the executor and co-bank account holder. Loss of POA power at death but they remain with alot of power. Thanks.
Quote:
Originally Posted by howard555
From the above link: Additional factors the courts have relied upon in support of the presumption of survivorship rights are a joint holder making withdrawals from the account for his or her sole benefit, the decedent receiving statements and cancelled checks for the account.
The scenario is that as POA and joint account holder they are paying the bills, access to all financial accounts and all the funds. The likely purpose could be that the surviving account holder can more easily just write a check to any beneficiaries of financial assets. That in itself is quite troubling since trust is a big factor as far as the POA and powers after death.
I'm sure you have a reason to ask Howard. Can you give us more info without coming out with exacts?
I assume someone passed away and family is having trust issues with the now ex POA but still executor?
What state or can't you say?
Advice, google executor laws in whatever state. I just did this for a friends dad who recently died. It states that yes, the executor can be named in the will but the court has to actually appoint them legally.
Ok, so that's easy with a death certificate. Now it says out of state executors and that a 2nd executor who is local will have to be named in case the out of state executor can't do what's needed. Well, the now ex-POA lives in the dad's state. So the executors fears will be coming true that the ex-POA could be the one running this show too.
And here their dad thought he was making his two most responsible kids have equally important jobs at what they'd be good at.
I'm not sure if the POA or executor were on his banks accounts or if they're listed as POD and TOD. I'll have to mention that to my friend.
A power of attorney loses their power at death. If the POA remains as co-account holder on a bank account there could be conflicts. Also take into consideration the possibility that the powerless POA may be the executor and majority beneficiary. If that turns out be the scenario (hypothetical) then existing and surviving heirs may have some sort of legal recourse depending on how it plays out. Your comments on why the POA should NOT be the executor and co-bank account holder. Loss of POA power at death but they remain with alot of power. Thanks.
Why? My sister and I were POA's for our parents, and on all their bank accounts (we had been on all their accounts for many years). It was never a problem when they passed away, it made things much much easier. I can't imagine what a mess it would have been otherwise.
Why? My sister and I were POA's for our parents, and on all their bank accounts (we had been on all their accounts for many years). It was never a problem when they passed away, it made things much much easier. I can't imagine what a mess it would have been otherwise.
Maybe you and your sister were executors which is what's needed after death?
It's a fact that the POA document stops being valid when the person dies.
Your Power of Attorney ends when you die. It is not a substitute for a will.
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