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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 36233
Experience:  16 yrs estate law, real estate. Wills/Trusts/Probate
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My father died, Feb 9th, 2015 in Troy, Ohio. He has 6

Customer Question

My father died, Feb 9th, 2015 in Troy, Ohio. He has 6 children and his Last Will & Testament written in 2008 leaves everything equally to all 6 of his children. Recently, I discovered that there was an Account with a substantial amount of money in it that
was left to only 2 of his children, Payable upon Death. What usually happens in a situation like this? We all know this was not my Father’s intention to leave the majority of his estate to only 2 children, as we were all part of his life and visited. He had
dementia and one of the beneficiaries is my Sister, who was his primary care-taker. The other beneficiary is my Brother. Both of them lived 5 minutes away from him, the rest of us live out of State.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Barrister replied 1 year ago.
Hello and welcome! My name is ***** ***** I will try my level best to help with your situation or get you to someone who can.
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""Recently, I discovered that there was an Account with a substantial amount of money in it that was left to only 2 of his children, Payable upon Death. What usually happens in a situation like this?""
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Assets like this that are designated with specific beneficiaries are paid directly to those beneficiaries and are not considered part of the deceased's estate. So the will wouldn't control the disposition of this account.
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With that said, from a purely legal perspective, the two children are the only ones who are legally entitled to those proceeds to split evenly. If they choose to share those assets with the rest of the siblings, then they can, but they can't be forced to do so.
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thanks
Barrister
Customer: replied 1 year ago.
(Posted by JustAnswer at customer's request) Hello. I would like to request the following Expert Service(s) from you: Live Phone Call. Let me know if you need more information, or send me the service offer(s) so we can proceed.
Expert:  Barrister replied 1 year ago.
I am sorry but I can't engage in a private one on one phone call as that can imply an attorney/client relationship, which I am prohibited from entering into under my independent contractor agreement with JustAnswer.
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I am not sure why they offer this as an option...
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However, I am more than happy to address any concerns or questions you have here on their public site..
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thanks
Barrister
Customer: replied 1 year ago.
Are there any situations that you know of where POD Accounts would be included in the Will, especially if the POD form was signed after the original Will was made. There may have been undue influence.
Expert:  Barrister replied 1 year ago.
""Are there any situations that you know of where POD Accounts would be included in the Will, especially if the POD form was signed after the original Will was made.""
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I am sure that there are probably situations where an executor has successfully challenged this type of designation on an account. However, unless the testator was legally incompetent when they set up the account as POD or convincing evidence of undue influence exerted that forced them to set up the account that way, then the POD designation will be honored by the bank because the presumption would be that they were competent and did so of their own free will.
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In order to prevent any POD beneficicary from receiving the proceeds of the account once they presented a death certificate, the executor of the estate would have to request an injunction from the court preventing any disbursement until the challenge was decided in court.
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thanks
Barrister
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Customer: replied 1 year ago.
Could the POD be included in the Will depending on how the Will was worded? Right now the Will states under, Identification of Family, "In making this Will I have in mind my children, Larry, Carol, Holly, Anthony, Janine, and Regina. Then Provision for Descendants: "I give all of the rest and residue of my estate, wherever located (hereafter referred to in this Article as "residue") to my descendants if they survive me per stripes. The POD account was signed a few years later, we believe under undue influence, while my Father had dementia and was not of sound mind and body.
Expert:  Barrister replied 1 year ago.
""Could the POD be included in the Will depending on how the Will was worded?""
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No, the entire purpose of a POD designation is to make sure that asset is outside the probate estate that is controlled by a will.
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If you can get proof in the form of medical records or testimony from his doctors that he was likely medically incompetent due to his illness when he completed the POD account designation, then it would void it and that account would be included in his estate and controlled by the will. However, these kinds of contests are expensive and require expert testimony from his doctors and his medical records to be used as evidence.
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But the executor has the legal authority already to request copies of his medical records so as to review them to see if there is any indication of a diagnosis that would label father as medically incompetent.
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thanks
Barrister
Customer: replied 1 year ago.
The Executor is one of the POD Beneficiaries, and he refuses to give us any additional information. We have asked for Medical Records.Thanks for your help
Expert:  Barrister replied 1 year ago.
Ok, then that complicates things because then that puts the burden on the beneficiaries challenging the designation to bear their own legal costs of challenging the POD designation.
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They can still do so, but they would have to foot the bill out of pocket in hiring an attorney and suing the executor alleging undue influence combined with possible medical incompetence. They could subpoena the medical records as part of the case to try to prove that father did not change the account of his own free will.
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But to be honest, it will not be an easy or inexpensive battle.
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thanks
Barrister