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Lawyer Lori
Lawyer Lori, Attorney
Category: Estate Law
Satisfied Customers: 2139
Experience:  Attorney - estate planning and probate.
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How does a legal guardianship differ from a power of attorney

Resolved Question:

How does a legal guardianship differ from a power of attorney and when is it needed?
Submitted: 2 years ago.
Category: Estate Law
Expert:  Richard replied 2 years ago.

Good morning. A POA gives the POA the authority to act on behalf of the principal, but it does not prevent the principal from acting on their own behalf. A guardianship prevents the principal from acting on their own behalf. It is typically sought when in spite of the POA, the principal is making decisions on their own behalf that need to be stopped.



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Customer: replied 2 years ago.

Very good answer. Now how do I make a will simple for my mom who has cancer. She wants me and my daughter both as primaries and I don't feel she needs two primaries.

 

I have another sister but she is just a contingent in case something happens to me or my daughter. My daughter will be responsible for things if something happens to me that's why she is also a primary.

 

She wants her life insurance to be 90% to myself and 10% to my daughter. What happens if her sickness forces her to use most of her money in the bank and she draws off her life insurance policy just to survive as she is not working and only getting a social security check, and the money that she would have given to my daughter is needed to bury her.

 

Also, she wants my sister to have $2,000 from her bank money or insurance policy. What happens after I give out this money and there is not enough money to bury her. How can I get around this pitfall in her will before she goes to a lawyer to have it executed.

 

She lives in her deceased husband home but when she passes on the home goes back to his kids. By law couldn't they keep us from coming into the house once my mom has passed on. What are our rights and how do we hold on to the property they abandoned 12 years ago when they did not claim it back then nor showed up for the reading of the will.

Expert:  Richard replied 2 years ago.

First, the will is only going to deal with assets that go through probate. Assets that have survivorship provisions and assets that have designated beneficiaries...such as life insurance...go directly to the survivor or the designated beneficiaries, whichever is applicable, and the will has no relevance. The best way to start with a simple will is to go to www.legalzoom.com or www.rocketlawyer.com and modify that to suit your purposes.

Customer: replied 2 years ago.

You didn't quite answer my question. What do you mean assets that go through probate.

 

Say my mom left $2,000 to my daughter but mom has exhausted most of her life insurance money to the point there's not enough to bury her. My daughter would be paid the $2,000 by the insurance company and I would have what's left. How do I protect myself from having to come out of my pocket to bury my mom when the $2,000 that my daughteris given is needed for her burial expense.

 

What about her dead husband children, how do I protect myself from them coming into the house and claiming stuff they abandoned 12 years ago.

 

 

Expert:  Richard replied 2 years ago.
The life insurance goes directly to the beneficiary and is not subject to the estate's debts. The $2,000 would only get paid if the estate had sufficient assets, not including the life insurance that went directly to the designated beneficiary, after the debts of the estate were paid, including the funeral expenses. Once she dies, the executor controls the estate, and you can lock the home and protect all assets so you can administer the estate pursuant to the will.
Customer: replied 2 years ago.

Who is the executor of her estate? I have power of attorney but so does my daughter.

 

The life insurance will be paid to the funeral home and what's left over will be paid to the beneficiaries.

 

What after burial expenses $1,000 was paid to me, yet $2,000 was paid to my daughter. How do I stop her from getting the bulk of the remaining money.

 

I can't control the estate of the home she is living in now because her husband left it to her as a life-time home. Once her life is over that contract is null and void so how can I protect all inside the home assets, including things they never took out the house 12 years ago.

 

 

 

Expert:  Richard replied 2 years ago.
Good morning. I'm going to opt out at this point since I'm totally confused. Earlier you asked about POA and guardianship and had wanted to do a simple will for your mom which would indicate to me she is still alive. Then, the later questions imply that she's already died. Hopefully another expert can be more helpful to you. Take care.
Customer: replied 2 years ago.
Relist: Incomplete answer.
Expert:  Lawyer Lori replied 2 years ago.

Good morning different expert here. Please let me know if I do not answer your question thoroughly.

1. Say my mom left $2,000 to my daughter but mom has exhausted most of her life insurance money to the point there's not enough to bury her. My daughter would be paid the $2,000 by the insurance company and I would have what's left. How do I protect myself from having to come out of my pocket to bury my mom when the $2,000 that my daughter is given is needed for her burial expense.

Life insurance will be paid directly to the beneficiary if named on the policy and you will have no control over that. If there is no named beneficiary, it is paid into the estate. But you did say that the insurance is to be paid to the funeral home, so the funeral home will pass the rest on to the estate if there is no named beneficiary and if there is a beneficiary listed the funeral home will cut a check to them. If it is made to the funeral home, the funeral home will pay all expenses before giving you or your daughter their share and if there is not $2,000 left, your daughter will not be paid from that insurance policy.


2. I can't control the estate of the home she is living in now because her husband left it to her as a life-time home. Once her life is over that contract is null and void so how can I protect all inside the home assets, including things they never took out the house 12 years ago.

Once probate is opened, you would be able to get an order to clean out the house, if you need one. Even though she had a life estate in the home, the personal property remains her’s or her estate’s and his children do not have the right to it.


3. She wants her life insurance to be 90% to myself and 10% to my daughter. What happens if her sickness forces her to use most of her money in the bank and she draws off her life insurance policy just to survive as she is not working and only getting a social security check, and the money that she would have given to my daughter is needed to bury her.

As I stated earlier, unless there are named beneficiaries on the policy, it will be paid into the estate and then disbursed after all expenses are paid.

4. Also, she wants my sister to have $2,000 from her bank money or insurance policy. What happens after I give out this money and there is not enough money to bury her. How can I get around this pitfall in her will before she goes to a lawyer to have it executed.

Simple matter, all final expenses and funeral expenses are to be paid prior to anyone getting cash from the estate.


Who is the executor of her estate? I have power of attorney but so does my daughter.

Executor of the estate is whomever she names in her will. Power of attorney becomes void upon her death. She may name the two of you as co-executors or you as executor and your daughter as a successor executor.


The life insurance will be paid to the funeral home and what's left over will be paid to the beneficiaries. What after burial expenses $1,000 was paid to me, yet $2,000 was paid to my daughter. How do I stop her from getting the bulk of the remaining money.

The funeral home will only pay to your daughter or you, if you are named as beneficiaries on the policy; otherwise they will pay it to the estate. If your daughter is named to get a set amount she should be paid that from the estate before the remainder is divided up. Legally, a named dollar amount is a “specific gift” and those are paid out in full before the “remainder” or “residual estate” is paid or divided, so there are instances where someone will get their full amount and the takers of the remainder get nothing. If your mother may state that your daughter gets “10% of the residual estate but no more than $2,000”.

Should you have any followup questions, do not hesitate to let me know.

Customer: replied 2 years ago.

Thanks for being patient with me. I think I am understanding your answer but not being a lawyer some of these legal terms are throwing me for a loop. Let's recap:

 

Life insurance is paid to me 90% - my daughter 10% - we are named beneficiaries.

 

The funeral home gets nothing until I pay them from my part of the life insurance money.

 

My mom is still living yet with cancer there is a possibility that she will exhaust her life savings and may be able to cash in on some of her life insurance nearing death.

 

With the remaining insurance left that she has not cashed in on, let's say for example $6,000 is left and she has already said $600 (or 10%) goes to my daughter. That leaves $5,400 which is hardly enough to bury her. I would need the $600 from my daughter to complete her burial. How do I get this money back? How should she leave it in a will or how does she change beneficiaries so that no one gets money until everything is settled concerning her burial. How do I tell her not to leave anyone a specific gift amount until all her expenses are paid and even then we divide up what's left if anything is left.

 

So you are saying in her will which she is drafting up now she has to name me as executor and then she can name my daughter as successor executor in case I die before my mother.

 

What do you mean once probate is opened. Are you saying once the will is read? And are you saying the step children cannot come in and seize the home until we move all the property of my mother out even though the old will their father left said they could get what was in his name only at the time, but it has been over 12 years and they never made any attempt to get it back then, but they may want it now.

 

 

 

 

Expert:  Lawyer Lori replied 2 years ago.
No problem. I want to make sure that you do understand this.

Life insurance is paid to me 90% - my daughter 10% - we are named beneficiaries. As named beneficiaries, the life insurance company will simply cut 2 checks – one to you and one to your daughter.


The funeral home gets nothing until I pay them from my part of the life insurance money. Okay, that means that if you don’t pay them, they can go after you personally (because when you arrange the funeral, they will require that you either: 1) prepay; 2) sign an assignment of the life insurance; or 3) sign a personal guarantee.


My mom is still living yet with cancer there is a possibility that she will exhaust her life savings and may be able to cash in on some of her life insurance nearing death.

With the remaining insurance left that she has not cashed in on, let's say for example $6,000 is left and she has already said $600 (or 10%) goes to my daughter. That leaves $5,400 which is hardly enough to bury her. I would need the $600 from my daughter to complete her burial. How do I get this money back? How should she leave it in a will or how does she change beneficiaries so that no one gets money until everything is settled concerning her burial. How do I tell her not to leave anyone a specific gift amount until all her expenses are paid and even then we divide up what's left if anything is left. Couple of points here. 1) She can preplan her funeral – which will save money – and pay for it on a monthly basis now (and you can help if you want to). 2) She typically can’t change beneficiaries so that the funeral home is first, unless it was set up as a burial policy and I doubt that it was. 3) She can change the beneficiary to her estate “the Estate of Jane Doe” instead of to you and your daughter; however, then you will have to open probate (and pay those fees as well). 4) She can simply change her beneficiary to you and then after expenses are paid you give 10% to your daughter. She even does not have to tell your daughter that is what she is doing. 5) Once your mother passes and your daughter gets her 10%, there is no legal way to get it back from her to pay burial expenses. It is her’s to keep.


So you are saying in her will which she is drafting up now she has to name me as executor and then she can name my daughter as successor executor in case I die before my mother. Successor executor would take over if you are deceased, unable or unwilling to act or if you simply fail to act she could ask the probate court to appoint her in your place.


What do you mean once probate is opened. Are you saying once the will is read? And are you saying the step children cannot come in and seize the home until we move all the property of my mother out even though the old will their father left said they could get what was in his name only at the time, but it has been over 12 years and they never made any attempt to get it back then, but they may want it now. Honestly, this is the toughest, trickiest part. In your mother’s case, probate may not even be necessary. Probate is only necessary if there are probate assets, which means assets in her name only. If your name is XXXXX XXXXX her bank account, you can just close them. Life insurance does not need to go through probate as long as there are beneficiaries. If she has a car, have her add your name to the title. See what I mean, probate is not a requirement unless it is necessary. Probate may be necessary if beneficiaries are fighting over the assets, but generally it is a good idea for everyone to compromise and settle without going to court.


As for the house, as your mother gets sicker and if you expect the stepchildren to be waiting, be prepared to move fast and get out what you need to. If it belonged to your mother, take it out and let them file a court action to get it back by proving that it belonged to their father. Hate to say this because it sounds like we’re vultures. But after your mother passes or moves into the hospital or hospice for her final days – take everything of her’s of value (sentimental as well) out of the house.


Reading of the will - that really doesn’t happen anymore, except for the very wealthy and/or on television. Hopefully, you will have a copy of the will prior to her death and you can simple do what she wanted you to do. And then if the necessity of probate comes up, then you can start the process.

Lawyer Lori, Attorney
Category: Estate Law
Satisfied Customers: 2139
Experience: Attorney - estate planning and probate.
Lawyer Lori and 8 other Estate Law Specialists are ready to help you
Customer: replied 2 years ago.
Thank you so much because you have really broken it down to me and I love that you were patient with me.
Expert:  Lawyer Lori replied 2 years ago.
You're welcome and if you would like my assistance in the future, you may request me by simply starting your question with "For Lawyer Lori".

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