Need answer to legal question!

08/04/2003 | Trust but Verify

[Trust but Verify]

I have what I beleive to be a simple question for our wonderful legal eagles in FReeperland.

Over a year ago my husband's grandmother passed away and left her home to my husband. He knew he would be getting the house,(she used a quit-claim as the vehicle to transfer the house to him) but wasn't aware of any will or the distribution of the rest of her assets. Finally, after a year of evasion, his aunt produced a will. There was one major surprise: My husband is named in the will as the executor. This is the first he knew of it and his aunts who both had copies of this will never told him. His aunt who had general power of attorney said it was within her power as such designee to disburse the assets, which she has done, with the exception of the house.. It has always been my understanding that power-of-attorney ends with the death of the person, and that the will, if any, is then invoked. Am I correct?

[Trust but Verify]

Any help is greatly appreciated! BTW, the estate is in Michigan.

[cmsgop]

Bump

[Trust but Verify]

bump

[auntdot]

Happen to know, and I am not a lawyer, that in the states I have lived the power of attorney ends with the death of the person.

Know enough about law to realize it is time to at least talk to an attorney.

I wish you well.

[HighWheeler]

here is a good line:

"No Power of Attorney survives the death of the principal. The authority to use a Power of Attorney ends with the death of the person giving the authority. A Power of Attorney may be revoked at any time by the principal. Such a revocation must be in writing, and if the original Power of Attorney was recorded at the Courthouse, the revocation must also be recorded."

from this site:

http://www.secured-title.com/new_page_9.htm

[Arizona]

I think the last signed document might take precedence.

This is just a guess, I'm not a lawyer. Bumping for a real lawyer in Michigan.

az

[HighWheeler]

from another site:


Types of Power of Attorney

The are four types of Power of Attorney. The type you choose will depend on how much authority you want your agent to have; when you want your agent to start acting on your behalf; and when you want your agent's authority to come to an end.

Limited Power of Attorney. Through a limited Power of Attorney you authorize another person to do specific things for you for a limited period of time, or in certain circumstances. The limited Power of Attorney ends if you become incapacitated or die. It also could end at a time that you specify in the document.

General Power of Attorney. A general Power of Attorney gives another person the authority to do whatever you can do. Think very carefully before signing this type of document. It should be used sparingly. This document ends when you become incapacitated or die.

Durable Power of Attorney. A durable Power of Attorney authorizes your agent to continue to act for you after you become incapacitated. This document ends at your death. It can take effect as soon as you sign it.

Springing Power of Attorney. A springing Power of Attorney can be written so it goes into effect if you become incapacitated. Be very careful to define clearly exactly how others will determine that the "springing event" has occurred.

Financial and Medical Powers of Attorney

You will probably want separate Powers of Attorney for finances and health care. Within each legal document, you specify the terms your chosen agent must follow in carrying out your wishes.

A durable Financial Power of Attorney allows your agent to carry out financial tasks for you when you cannot do so. This might include paying your bills, managing your property, and handling other money matters.

A durable Medical Power of Attorney lets your agent make medical decisions for you when you can't make these decisions.

[Yankereb]

You are correct. The power of attorney ended at her death. The aunt had no right to distribute anything. Your husband as the Executor of the will has that right. Did the Aunt probate the will? It has to be submitted for probate before anything can be distributed. You need an attorney in your state. I would get one.

[Trust but Verify]

Well that seems pretty clear-cut. All the Google-ing I did and I didn't turn up anything that definitive.

Thanks for taking the time!

[Trust but Verify]

The reason the grandma gave him the house is because she knew the daughters would fight over it. Now there is going to be a fight after all.

[meenie]

The power of attorney ends at death. The executor takes over then.

[HighWheeler]

"It has always been my understanding that power-of-attorney ends with the death of the person, and that the will, if any, is then invoked. Am I correct?"

Looks like you are correct, and your husband's aunts are in a big-ol'-heep-o'-trouble. In effect, they may be guilty of "conversion" which is the legal term for taking possession of something that is not theirs to take.

[Delta 21]

I am dealing with he death of my mother-in-law right now. My wife has been appointed administrator of the estate. All Power-of-Attorneys end at the persons death.

If the aunt followed the will, the resolution should be fairly painless. If she didnt It could very well get messy.

[HighWheeler]

Here is a decent legal defintion of "Conversion":

CONVERSION - Torts. The unlawful turning or applying the personal goods of another to the use of the taker, or of some other person than the owner; or the unlawful destroying or altering their nature.

When a party takes away or wrongfully assumes the right to goods which belong to another, it will in general be sufficient evidence of a conversion but when the original taking was lawful, as when the party found the goods, and the detention only is illegal, it is absolutely necessary to make a demand of the goods, and there must be a refusal to deliver them before the conversion will be complete. The refusal by a servant to deliver the goods entrusted to him by his master is not evidence of a conversion by his master.

The tortious taking of property is, of itself, a conversion and any intermeddling with it, or any exercise of dominion over it, subversive of the dominion of the owner or the nature of the bailment if it be bailed, is evidence of a conversion.

In Equity. The considering of one thing as changed into another; for example, land will be considered as converted into money and treated as such by a court of equity, when the owner has contracted to sell his estate, in which case, if he die before the conveyance, his executors and not his heirs will be entitled to the money. On the other hand, money is converted into land in a variety of ways as for example, when a man agrees to buy land and dies before he has received the conveyance, the money he was to pay for it will be considered as converted into lands, and descend to the heir.

[BlackElk]

I have nothing specific as to Michigan but many states have what is called durable power of attorney for use when the person granting the power might become incompetent. You need to see the actual document (the power of attorney) and see what it actually says. If the aunts are not forthcoming, a copy probably had to be filed on land records for any land transaction(s) and with bank(s) to do banking business for the person granting the power of attorney. As executor, your husband has a right to see the documents in possession of the bank and, as a citizen, he has the right to see whatever is on the land records.

Secondly, the failure to produce the will in a short time is very likely a violation of a petty criminal law and might result in prosecution and imposition of a small fine. If that can be achieved, you have a big leg up in a civil suit for fraudulent concealment and other forms of fraud. The statute of limitations may well be suspended during the coverup.

Third, what happened to the proceeds of any property transfers? Either these relatives volunteer with satisfactory documentary proof or sue the one(s) responsible and depose all concerned to force early testimony under oath. If you sue, attach their real estate and obtain an injunction freezing their assets by a pre-judgment remedy to be served with the complaint in the lawsuit. Seek multiple damages and/or punitive damages as the law may allow for leverage and, perhaps, for punishment.

Finally, since I am not at all familiar with Michigan law and am not licensed to practice there or anywhere since I am now (hank God) a recovering attorney, the foregoing is just a bit of a partial roadmap. You must obtain the services of a thoroughly competent and experienced estate attorney. The cost can likely be paid by the estate.

Nothing in this post should be construed by you, your husband or anyone else as legal advice. Be guided by a wise and aggressive attorney and expect him/her to keep you informed regularly at every step of the proceedings. Carefully review any written retainer agreement by which you hire the lawyer to make sure that there will be no controversies. You make the policy decisions. The lawyer advises you and chooses appropriate procedures or lays them out for you to choose with full explanation and advice and time to decide.

[Trust but Verify]

The aunt used the POA to gain access to the bank accounts of grandma and distributed everything. She and her sister took anything of value from the house and left us with the rest. She knew and never told my husband he was the executor. Both of them had copies of the will but we did not. For the past year we have been paying the expenses of the house out of our own pockets. Property taxes, insurance, utilities, lawn care, snow removal.

[Trust but Verify]

That's what I'm learning. Our sympathy to you and your wife on the loss of her mother. I hope you can resolve the estate without acrimony. Good luck.

[RLK]

From a text. An "attorney in fact" is an agent who is authorized by means of a document called a "power od attorney" to represent the principle to do a specific act. He does not need to be a lawyer. He may be any person who has the physical and legal capacity to act in plac3e of the principle.

Illustration: Bradley expects a payment due him in cash while he is in Europe. He executesa power of attorney authorizinf Shore to receive the money for him. Payment to Shore is equivalent to payment to Bradley.

I believe the Aunt was in error in assuming power over the estate. In fact, she may have committed fraud in evading the intent of the deceased. An executor is a person named in a will to take charge of the administration of the estate subject to supervision of the court.

A person who dies and leaves a will has all of his personal assets transferred to his named executor. It is the duty of the executor in administering the estate to gater all the assets and distrubute the peoceeds in accordance with the provisions of the will.

[BlackElk]

See Post #7 by High Wheeler who seems to have a much better handle on durable powers of attorney than I. I defer to High Wheeler. Still, you must also consult a Michigan attorney as previously posted and rely ultimately on his/her specific knowledge of Michigan law.

[BenLurkin]

You MUST give serious consideration to hiring a Michigan atorney who specializes in probate.