Dear Quentin,
My grandfather recently passed away, and my grandmother has been declared mentally deficient enough that her insurance paid for full-time care in a care facility.
After my grandfather’s death, their only surviving child, my aunt, became upset with me at the funeral home during the final planning meeting.
I have been the executor for nearly 20 years and was also tasked by Grandpa to plan his funeral details, which he had paid for before passing.
“ ‘I have been the executor for nearly 20 years and was also tasked by Grandpa to plan his funeral details.’ â€
My aunt since had me removed as the executor, and also removed me as a co-power of attorney. I knew nothing of this until a chance meeting today with a family member.
There is, to my knowledge, approximately $ 1.3 million in assets, most of which come from a living trust, and the family home that is under contract for purchase.
My feelings are that the power of attorney, executorship and possibly the will could not be changed because of Grandma’s mental state.
I’m not sure if I need to talk to an attorney about it now, or after Grandma passes, or if it will really matter in the end, as I believe the trust is the biggest amount and is set in stone.
I don’t want to fight over a few thousand dollars, or lose what time I have left with Grandma.
Your thoughts are appreciated.
Grandson
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Dear Grandson,
I believe you should make two phone calls: one to your family’s attorney to establish the accuracy of this relative’s account, and after that, one to your aunt to resolve whatever dispute you had at the funeral meeting, and to discuss your joint responsibilities. Only make this second call when you have all the facts and know your options. It’s better to make your intentions known and to explain your reasoning before you take any action, to avoid escalating an already tense situation.
One must petition the court to change executor without the existing executor’s cooperation, and so I question the veracity of this mutual family member’s statement. “Gathering this evidence requires depositions, expert witnesses such as accountants, interrogatories, witness interviews, subpoenaed documents and evidence presented following the rules of evidence and subject to the executor’s objections,†per guidelines from Klenk Law, a boutique estate-law firm.
“ ‘Power of attorney gives someone the keys to the house — and the bank accounts.’ â€
“Just being upset with the executor is not enough,†according to Peter Klenk. “You must provide the judge with a basis for removal.â€
Causes for removal include friction between co-executors, failure to comply with the terms of the will, non-cooperation with a vital party or a beneficiary, neglecting or mismanaging estate assets, misconduct, self-dealing, abuse of discretion, misappropriation of funds, hostility towards heirs and breach of fiduciary duty, he says. And, yes, that works both ways.
Power of attorney gives someone the keys to the house — and the bank accounts. “The POA, in fact, is the most abused estate document in terms of theft,†writes Ken Russell, a partner at Baratta, Russell and Baratta. He recommends a provision requiring the POA to provide detailed updates and documentations on all recent activities. It may not prevent financial abuse, but it could deter the POA from acting recklessly. Information gathering first — and, based on what you find, action later.
Ultimately, I advise against both inaction and/or underestimating the value of either role.
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