There are good reasons to let your attorney keep your original wills. If your wills are in your attorney’s safe, you do not have to worry about losing them. You may even be concerned that certain family members may go so far as to destroy your will to get a larger inheritance.
Look through your parent’s records and file cabinets, talk to their close friends and other relatives, ask their accountant and any lawyer they worked with in the past. Look around the house for business cards of lawyers, accountants or financial advisors.
(Without appropriate POA agreements in place, your parent may eventually lose his or her autonomy and unintentionally create family drama as a result of adult guardianship proceedings, which tend to be lengthy and costly.)
If you can find mention of him, the website or newspaper might have interviewed him. Contact them and ask if they know where you can reach him. If you can’t find the attorney, you’ll have to figure out where he might have placed the will when he stopped practicing.
When a copy can’t be found, one common problem that many run in to is attempting to explain to the Court what a decedent said they wanted prior to death. The decedent’s oral bequests, and statements of intention to draft a Will are insufficient to establish validity of the copy or any estate plan. Just because the Testator may have said they wanted ...
When attempting to admit a copy of a ‘lost will’, a presumption exists that the original was intentionally destroyed or revoked. In order to overcome this presumption, a few things must be shown. You must provide sufficient proof to the Court that: Testator had not revoked or destroyed the original prior to death.
This filing typically occurs in the probate court, in the County in which the decedent resided .
But if copy of the Will does exist, and you can provide adequate proof to overcome the presumptions of revocation, the Court may allow a copy of the Will to be admitted in place of the original.
Just because the Testator may have said they wanted you to have a house, car, diamond ring, or boat, it is typically not enough to establish testamentary intent. If the bequest was not put in writing by the testator, or if it was put in writing, but the writing is lost and cannot be found, the Court will oftentimes default back to ...
If you still cannot find the will, your next step should be to contact an attorney to determine how the estate will be settled without a will.
If you keep your original will in a fireproof safe in your house, make sure you let some family members know where to find the combination (or key) if you are no longer around and the box is locked. You must let others know where your original will is kept.
If a will is missing because it was stored in a bank vault destroyed in a fire, the probate court may accept a photocopy of the will ...
If you keep your original will in a safe deposit box, make sure to transfer ownership of the box to your living trust (so that your successor trustee has access to the box after your death without the need for a court order). If you keep your original will in a fireproof safe in your house, make sure you let some family members know ...
If your wills are in your attorney’s safe, you do not have to worry about losing them. You may even be concerned that certain family members may go so far as to destroy your will to get a larger inheritance. If the will is in your attorney’s safe, that will not happen. In your case, this backfired.
A lot of attorneys offer to keep the original wills they prepare for their clients, at no charge. They do this so they can probate the estates of their clients. When a client dies, their children read the copy of the will and call the attorney whose name is stamped in big bold letters on the first page.
If a power of attorney does not appear authentic to you, and you cannot independently verify its authentic ity, do not transact business with the purported agent. If the power of attorney turns out to be fraudulent, you can be held liable for any losses sustained by the alleged grantor through the transaction.
Verify the authenticity of the power of attorney document presented to you. In many states, a power of attorney must be notarized. The presence of a notary's stamp and signature is usually enough evidence that the power is a legitimate document. If you're concerned, run an internet search for the notary and ask him or her to verify that the stamp on the document is the notary's official seal. Contacting witnesses is another avenue to explore. Often, powers of attorney bear the signature of an independent witness who watched the principal sign the power. See if you can contact the witness – the address should be written beneath the witness's signature – and ask if she remembers attending the signing.
A third party preparing to transact business or take action in reliance on a power of attorney needs to verify who really does have authority under such an instrument to make decisions for another person.
Check the power of attorney records at the register or recorder of deeds in the county where the individual who created the instrument resides. In some states a power of attorney can be filed with the register or recorder of deeds. However, this is not the common practice today.
The grantor is the individual who drafted and executed the power of attorney. Though this might seem to defeat the purpose of designating an agent to act on behalf of a grantor via a power of attorney, the typical grantor appreciates a third party taking the time to confirm the authenticity of a power of attorney.
A duly authorized agent named in a power of attorney should have the original instrument in his or her possession. If you are being asked to take action by an individual contending he or she is an agent authorized to make decisions through a power of attorney, you must review the original instrument.
Often, powers of attorney bear the signature of an independent witness who watched the principal sign the power. See if you can contact the witness – the address should be written beneath the witness's signature – and ask if she remembers attending the signing.
Power of attorney dies with you. Once you pass away, the document is no longer valid and your will then controls what happens to your assets. Fund your revocable trust. If you fund your revocable trust during your lifetime, you may not need to use your power of attorney although you should still have one just in case.
In a power of attorney, you name someone as your attorney-in-fact (or agent) to make financial decisions for you. The power gives your agent control over any assets held in your name alone. If a bank account is owned in your name alone, your attorney-in-fact will have access to it.
Name an alternate. If your named agent dies before you or is incapacitated, you want to have a back-up who can act. Also, consider nominating a guardian and conservator in your power of attorney in case one is needed down the road. Read the document. This seems obvious, but clients often do not read their documents.
A durable power of attorney is effective when you sign it and survives your incapacity. A springing power of attorney springs into effect when you are incapacitated. A springing power of attorney seems more attractive to most people, but it is actually harder to use.
Depending on the language of the power of attorney, your agent may be able to change the ownership of your bank accounts or change your beneficiary designations. This is a common scenario in second marriages.
The power of two. Consider naming two agents to act together if your state allows for it . While having two people serve can be cumbersome, it often is worth the extra effort to have an extra set of eyes on the use of the power of attorney. This can substantially reduce your risk and ensure your assets go to the people you’ve designated in your will.
People tend to focus their energies on their wills and trusts, naming someone to serve as their power of attorney at the last minute. This is an important decision and not one that should be taken lightly.
So your parent may use it to grant you a comprehensive set of powers to help out while he or she is away from home for extended periods of time or needs your assistance due to other reasons, such as physical illness or disability.
A POA document is generally a written agreement between two people: (1) the principal (sometimes called the grantor) and (2) the agent (sometimes called the attorney-in-fact). The agent is the person appointed to act on behalf of the principal. So your parent (the principal) can grant you (the agent) certain powers of attorney.
Essentially, the difference between a "general power of attorney" and a "durable power of attorney" is that a general POA terminates when the principal is deemed to lack capacity, whereas a durable POA stays valid beyond that point.
Depending on the particular agreement, a power of attorney covers a broad or narrow set of responsibilities, usually related to financial and/or medical and caregiving matters.
The duty of a power of attorney agent is to always act in the best interests of the principal.
Also known as special power of attorney, this type of POA grants an agent the authority to handle a very specific situation on the principal's behalf. For example, your parent may grant you limited POA to represent him or her in the sale of a particular property or to manage his or her transition to a nursing home or assisted living facility. Your authority as the agent ends as soon as you've successfully completed the defined activity or reached the agreement's specified expiration date. And your powers do not extend to anything other than what is specified in the document.
Having financial power of attorney means having the authority to access and manage another person's monetary and/or property assets. As an agent with financial POA, you have the right to make certain kinds of financial decisions on behalf of the principal (as long as they are in his or her best interests). For example, your parent might give you the authority to pay bills, file taxes, make and manage investments, transfer money between different bank accounts, handle insurance claims, collect outstanding debts, sell or rent out property, or deal with retirement pensions and government benefit programs.
This is called an intestate estate, which means mom or dad died without a will. The beneficiaries will then be determined by state law, which dictates who inherits the money. Of course, most of this can be avoided if your parent creates an estate plan, including a will, before they die.
If you have found an “old will” – and it was not revoked by your parent – it is the will that will be probated. Check to see if mom or dad had a safe deposit box. The will may be in the safe deposit box. This poses a particular challenge because the authority to get into the safe deposit box may be in the box.
Since there is no will, you will need to bring a petition under the laws of the state where mom died (or where she owned assets) asking the court to appoint you as Personal Representative (or Administrator) of the estate. This is called an intestate estate, which means mom or dad died without a will.
If mom died on March 19, you should gather up all of the financial statements that cover the entire month of March. Date of death values of assets will be needed for probate and estate tax returns. Financial statements will often indicate ownership of the account.
If there was a joint owner of the account, the ownership will most likely pass to the surviving joint owner and probate of that asset may not be needed. The same is true if the account had a “POD” – Payable on Death – listed. The asset gets paid on death to that named person listed and avoids probate.
If you’re unable to find your original documents, your best option is to find a new attorney and revise your estate plan. You can do a trust restatement in which it will be stated that the new terms of the trust supersede or replace any prior terms.
In some cases, the original trust documents are kept in the drafting attorney’s safe , and the client is provided with copies of the signed documents. When the drafting attorney moves or retires, the original documents can be returned to the client or transferred to the attorney who is taking over the practice.
Avoiding probate and keeping the terms of the living trust private are two big reasons why people choose to create them. So, you can’t go to a probate court to obtain a copy of the document. And $995 for couples.
So, your investment adviser may be able to provide you with a copy. In addition, your tax preparers and accountants should have copies of the trust agreement along with a copy of your will in their permanent files. Avoiding probate and keeping the terms of the living trust private are two big reasons why people choose to create them.