Legal Question in Wills and Trusts in Massachusetts

Re: Poa's

I have never heard of a POA granting an attorney-in-fact the power to revoke, modify, or make a new will on behalf of the principal. This is almost certainly not allowed.

Even if you were to revoke, modify, or create a new will on behalf of your mother, the will would not be honored and you might find yourself in an even worse position.

Is it possible that you could speak with your father and request that he decline to serve as Executor?

In order to create, modify, or revoke her will, your mother need only be able to understand the extent and nature of her estate, understand her family structure, and be able to understand the consequences of her decisions as testator.

If she is not physically able to sign the will on her own, she may still direct another to sign on her behalf and in her presence. An attorney would really be able to better determine whether your mother has capacity to make the changes you suggest.

I hope that your family will consider contacting me when it does become time to probate her will and carry out her wishes.

Best of luck.

Re: Poa's

The short answer is, no. You cannot modify your mother's will via the power of attorney.

However, that does not mean that you cannot do anything. There are several possibilities, including filing a petition to allow estate planning modifications on behalf of your mother, and if she does not survive, a certain amount of "post mortem" estate planning is possible. It is possible, under certain circumstances, to have her will modified after her death by the Supreme Judicial Court (the highest court in Massachusetts), to address estate planning issues, including tax.

As far as your father serving as executor, if you have a taxable estate, or an estate which will be required to file an estate tax return, even if there is no tax due, you will certainly want an attorney to assist in probating the estate. The attorney can assist you, as executor, if your father declines to serve, or assist your father with your input as appropriate.

In any event, you should really speak with an attorney as soon as possible, to see if there are steps which should be taken immediately.

Please don't hesitate to call if I can be of assistance.

In any event, best wishes to you at a difficult time with your parents.