Legal Question in Wills and Trusts in New Jersey

Re: Will vs. Power of Attorney

Supplementing the prior answers. A Will is revocable until the maker dies. Thus, there can be no irrevocable provisions and any existing provision can be changed by Codicil or new Will. Thus, you could never be assured of getting anything until the Will were actually probated. However, your question raises additional issues, some of which were discussed by Jon. Does the PA allow the attorney to sell property? If allowed, what does it provide as to the uses of the sales proceeds? Do the proceeds follow the original Will, so that the original intended recipient of a specific bequest get the sales proceeds of the asset forming the bequest if the asset were sold and funds from the sale remain at date of death? Probably not. Is the holder of the PA also a named beneficiary under the Will? If so, how does the prospective sale benefit the attorney? If the effect of the sale is to exclude one beneficiary and benefit only the attorney, there may be a conflict of interest if the sale actually occurs. What are the sales proceeds to be used for? If to only benefit your grandmother by paying her living expenses and costs of care, there may not be a conflict. The holder of a PA has fiduciary responsibilities not only to the maker of the PA, but also to her heirs, and cannot act to the attorney's benefit and to the detriment of others. What is your grandmother's mental and physical state at the present time? Is she fully capable of making this decision? Is she incapacitated? If incapacitated, is the PA a durable PA do it continues in effect during the incapacity of your grandmother? This may be a source of contesting a sale. How close are you to your grandmother? Have you spoken to her about the intended sale and what she really wants to do? There are alot of other questions and information needed to give you more than a general answer, and what rights you may have.

Re: Will vs. Power of Attorney

A will only becomes effective at the time of death. It can be changed prior to death, and changes made during a person's life can change the effects of a will. If the POA gives the power to sell real property, the attorney-in-fact can do so. The language of the POA would govern. The effect would be to negate the devise to you in the will. I have obviously not reviewed the will, but based upon the facts, this is my interpretation.

Re: Will vs. Power of Attorney

Typically, if an asset which is disposed of in a Will (e.g. a specific devise of real estate)is sold prior to death, the person who has been left that item in the Will gets nothing.

However, this gets more complicated in the situation you describe.

If the attorney in fact is aware of what the Will provides and sells the house to benefit herself, she may have breached a fiduciary duty. For example, if she is named as a residuary beneficiary, by selling the house now, that asset is converted to cash which may then pass to her as part of the residuary estate.

If there is a very good reason for her to sell the house now (i.e. money is needed to pay medical bills, etc.) then this concern is lessened. But if she sells the house on a 'whim' when she knows that will disinherit you, frustrate yur grandmother's intentions and also increase her share...then she may have a problem.