Legal Question in Wills and Trusts in California
POA/Joint Tenancy/Will/POD
Mother had mild dementia - gave me full POA before she got worse. Main concern: 55 yr. mentally handicapped son not be thrown in state home. Did not trust my father - told me long ago if anything happened to her to transfer all from f any JOINT ''OR'' accounts to care for my brother, my sister, grandchildren. Parents had Treasury bill account - I transferred all but $13K into my mother's name with no POD. Spent about 1/4 in expenses for my brother, attorney fees getting conservatorship of mom, gifts for grandchildren and losses in investments I set up for her. Mother died before conservatorship finalized - mother named me executor of her estate. Father claims I stole their JOINT money and wants it all returned -- all is now going through probate. Am I liable for 1/4 spent? If there was no POD on investments or Treasury bill and all is in her name -- does it automatically go to my father, surviving spouse - or does Will override this? There is also a house worth $500K invovled - they were married for 56 years - had the house since 1972.
I'd appreciate any insight on this - I get different answers from probate attorney, bankers, treasury bill customer service, etc.
2 Answers from Attorneys
Re: POA/Joint Tenancy/Will/POD
This is a difficult issue, and will probably depend on interpretation of more specific facts in this particular case. It sounds like the property was community property, and in the absence of a will or trust, your father would be entitled to your mother's share.
However, if there was a will/trust leaving the property to people other than your father, that would likely be valid, as people can leave their share of the community property (and their own separate property) to any person or persons they choose.
Another issue is whether the power of attorney was broad enough to allow such transfers and gifts. Most allow them, and most allow transfers to complete the estate planning goals of the principal, but if the agent benefits from such transfers, the law often requires more specific language allowing such transfers.
Your father sounds like he will fight this, so you should prepare for that by hiring an attorney with probate litigation experience (not all have this) to file the probate and bring these issues before the court. The attorney can file a petition for instructions asking the court to issue a final order resolving the distribution issues, and before the court does so, it will likely order all parties to a mediation in an attempt to negotiate the matter before trial. Perhaps the money could be held in trust for your father's care with the residue going to your mother's chosen beneficiaries after his death--the eventual outcome/settlement will depend on the strength of your case.
Re: POA/Joint Tenancy/Will/POD
My condolences to you for your loss.
This is a very complex issue, and without reviewina all documents, I would not be able to provide you with a good answer.
If certain property is held in joint tenancy, it could be that your father is entitled to it outright. Anything that was your mothers separate property or her half of community property can be willed to anyone she wished.
You will probably need an attorney to handle this for you, since you are out of state. It will be complex and time consuming.
If the situation is in Northern California, please feel free to call me at 925-924-0100.
Ken Koenen
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