Will the estate go to my mother or to the power of attorney? 7 Answers as of February 24, 2011

My father’s will says to sell everything he owns. He said his power of attorney is to hold a public auction. Can he sell the house out from under my mother? The farm equipment my brother takes care of the maintenance and up keep on them. Doesn’t the power of attorney lose all rights when dad dies since mom is still living?

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Law Offices of Brian Chew
Law Offices of Brian Chew | Brian Chew
Your father's power of attorney is not relevant once he passes. The terms of his trust and/or will dictates who is in charge of the assets and who will receive them.
Answer Applies to: California
Replied: 2/24/2011
Theodore W. Robinson, P.C.
Theodore W. Robinson, P.C. | Theodore W. Robinson
You're correct. When your father died, his Power of Attorney ceased immediately and the only thing left is his Will. However, your mother has what's known as a "Right of Election" which she can assert in the event that she was not mentioned in your father's Will. In such a case, it will depend upon how many children exist at to how much she gets under her Right of Election. If the Will otherwise says the house must be sold, there are a number of other issues that could arise. I strongly suggest your mother consult with a local estate attorney and you and your brother go along to find out what the law dictates in these situations. Unless your father was at odds with your mother at the time he made out the Will, I would be surprised if he was the only owner of the property and that he would direct the sale of the house while she was still alive. Instead, I suspect she may either get the house by operation of law if the two of them owned it together or she will get a life estate in the house to allow her to live out her life in that house. Those would be fairly normal ways attorneys would suggest when making a Will for someone. Good luck.
Answer Applies to: New York
Replied: 2/24/2011
Law Office of Larry Webb
Law Office of Larry Webb | Larry Webb
The power of attorney does not survive your father.
Answer Applies to: California
Replied: 2/24/2011
Law Office of Richard B. Kell
Law Office of Richard B. Kell | Richard B. Kell
As long as your mother was still married to your father at the time of his death, then she will receive what is called a "spousal share." Depending on the size of the estate, it could be everything or only part of it. The "power of attorney" you are referring to is called the Executor, and they must distribute the property according to the Will (subject to the statutory spousal share mentioned above). They do not lose their rights just because the spouse is still living.
Answer Applies to: Massachusetts
Replied: 2/24/2011
Arnold & Wadsworth
Arnold & Wadsworth | Brian Arnold
Depending on which state he is in all the assets should go to your mother. They probably did a joint will and trust and you should review all those docs because it probably has a clause that transfers everything to your mother at his death if she is still alive.
Answer Applies to: Utah
Replied: 2/24/2011
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