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Attorney & Mediator
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1. A wife and husband are beneficiaries on each others 401K. If one does

Resolved Question:

1. A wife and husband are beneficiaries on each other's 401K. If one does not die, but is incapable of making decisions for care, can the spouse use the money from the 401K for the care? Would it make a difference if the beneficiary is also the Power of Attorney?

2. If a son is currently the Power of Attorney for his mentally incapacitated mother and she dies, will he still have access to her funds to pay off her debts?

3. If there is a will, can the Power of Attorney handle the disbursement of assets or does it have to be probated? Can the assets be dispursed by the Power of Attorney before the will is probated?

4. If there is an irrevocable trust along with a will is the will still probated?

5. The mother's will was made in New York. She is now being cared for in Maryland.
Submitted: 6 years ago.
Category: Legal
Expert:  Attorney & Mediator replied 6 years ago.
If one does not die, but is incapable of making decisions for care, can the spouse use the money from the 401K for the care?

Only if the 401K allows the spouse to use the money before death they can. Otherwise being named the beneficiary does not give them current rights. The only have the right to inherit (so there is a future interest) which takes place upon the death of that holder.

Would it make a difference if the beneficiary is also the Power of Attorney?


No. A power of attorney (POA) only gives that person certain limited rights as stated in the POA. If the POA allows that person to access the 401K before death, then they would have that right. So it depends on the terms of the POA.

If a son is currently the Power of Attorney for his mentally incapacitated mother and she dies, will he still have access to her funds to pay off her debts?

Obligations under a POA terminate upon death. The person who would have access to her estate upon death would be the named executor in a will, or named trustee in a trust or the representative appointed by probate court to handle the estate if there is no will or trust.

If there is a will, can the Power of Attorney handle the disbursement of assets or does it have to be probated? Can the assets be dispursed by the Power of Attorney before the will is probated?

See answer above this one.

If there is an irrevocable trust along with a will is the will still probated? 5. The mother's will was made in New York. She is now being cared for in Maryland.

The will is subject to probate only for those issues not addressed in the trust. If the trust covers all issues, then no probate is necessary. So long as the NY will is valid, all states will consider it valid. No need for her to create a new will.





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