Legal Question in Wills and Trusts in California
Power of attorney versus Inheritance
A few years ago my Father had a severe stroke. While in the hospital, my Father and Mother signed over power of attorney to my older brother. My Father has since recovered almost completely. Meanwhile my brother who has been dying to takeover running the company, does not intend to relinquish his new power and authority anytime soon. He has everything under wraps and conceals anything that pertains to the company. He has even gone as far as to lay off our office worker to collect unemployment benefits just so there wouldn't be anyone around that knows what is actually taking place. My Father is not in the best of health and probably will not be around for too many years more. My question is: If my Father were to pass away with my brother holding power of attorney, does that legal authority have any bearing on my Father's will? Does the will take precedence over anything legally declared prior to his passing? If in accordance to the will legal authority of the company is given to someone other than my brother, can he contest the will?
Thanks!
2 Answers from Attorneys
Re: Power of attorney versus Inheritance
these questions cannot be answered completely and correctly without reviewing the documents and more facts. in general, however:
the power of attorney, if properly drafted, executed and notarized will expire at your father's death. his will, if properly drafted, executed and witnessed (while he is competent), will determine how his estate (his half of community property plus his separate property) is to be distributed.
assets held as community property, in joint tenancy and such assets as life insurance and retirement accounts may pass outside the will to the surviving spouse or joint tenant or the designated beneficiary. if the original or a copy of the will is not found at his death, it may be difficult to prove its existence and provisions.
if you believe your father to be incompetent and that your brother is taking advantage of the situation, you should consider a conservatorship.
Re: Power of attorney versus Inheritance
you need a good attorney to protect your father and your interest if any after giving the attorney all of the facts and listening to the attorneys advice. mr field's advice is good and accurate but if you don't understand it fully or take any action on your own you can screw your father's assests up -- if you wish a consultation call me at 510-465-6000 as i have parcticed in alameda and contra costa counties for over 30 years in real estate/estate planning and probate law
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