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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55716
Experience:  29 years of experience practicing law, including tax and estate planning.
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This is a second marriage. My husband has made me power of attorney. His daughter is the e

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This is a second marriage. My husband has made me power of attorney. His daughter is the executor of the will. Does the executor of the will trump the power of attorney if my husband becomes unable to make decisions?
Welcome! My goal is to do my very best to understand your situation and to provide a full and complete answer for you.

Good evening. Actually, there is no overlap. The power of attorney is effective during life. It should be a durable power of attorney so that it survives your husband's disability. While your husband is alive, his daughter has no authority under the will. Only when your husband dies does this change. Upon your husband's death, your POA automatically terminates and at that point, only then does his daughter have the authority over his estate pursuant to her being named executor of his will.

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Customer: replied 4 years ago.

There is a trust. It is old. Will the current power of attorney, me, trump what is written in the old trust? The old trust states his daughter as the power of attorney. I've heard a trust trumps any documents made after the trust. Thank you

Thanks for your reply. The trust only governs assets in the trust. Otherwise, any appointment in the trust has no validity over assets outside the trust or the grantor of the trust.
Customer: replied 4 years ago.

Last question: In 2006, he put our condo in the trust. As the years have gone by he changed it. He made me a joint tenant. It is filed in the courts. The mortgage is in his name but it bank has copies of my husband and I as joint tenants. Will I have problems because it was first put in the trust?

I'm presuming this was a revocable living trust. As long as he's alive he has the power to take assets out of the trust and/or to revoke the trust in its entirely. Thus, if he changed the title by transferring it from the trust to the two of you as joint tenants, then the later deed will be the applicable deed and you will be held to own the title with your husband as a joint tenant. If there is a survivorship provision, title vests automatically in you upon his death outside the will.
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