BACK TO BASICS
By Tim Barkley. December 2019.
Billy and Joan had lived across town. He was her only child, and as she grew older, helped with her care. Joan, a widow, had just been admitted to a nursing home with dementia. Immediately after her admission to the home, Billy suddenly and catastrophically died.
There was no one to handle Billy’s estate. He had never married and had no children. There was no one to take care of Joan, either. No family or friends came forward. A caring neighbor came to our office with the tale, and we agreed to try to help.
Billy and Joan were very private, and we had no way to know whether he had a will, or whether she had named someone in a financial or medical power of attorney to take care of her. We didn’t know who the family was, or who he wanted to receive his estate, or who he had named to make sure his wishes were carried out – or who she wanted to care for her if he couldn’t.
As far as anyone knew at the time, Billy died without a will and Joan had no medical directive or powers of attorney.
The law assumes that Joan would handle Billy’s estate, but that couldn’t happen. The law also assumes that Billy’s estate would pass to his mother, Joan, since he had no children or spouse. That could happen, but only if someone stepped up and agreed to serve as Billy’s personal representative.
The law assumes that Billy would care for Joan, but she was a widow and her only child was deceased, so someone needed to step up and agree to serve as Joan’s guardian.
We petitioned the Orphan’s Court to open Billy’s “intestate” estate (without a will) and also petitioned the Circuit Court for guardianship of Joan. Both petitions were granted. We were appointed personal representative of Billy’s estate and guardian of Joan’s property.
We went through the house, looking for bank statements, 1099s from investments, IRA and 401(k) statements, anything that would show where Billy and Joan had their money.
We began to marshal Billy’s assets and work to preserve Joan’s assets.
Only much later did we find their original wills and Joan’s will, financial and medical powers of attorney, securely locked in a safe that was hidden in a closet under a pile of laundry. They weren’t much help.
Billy’s will directed that his father, Michael, serve as personal representative, and that Joan serve if Michael did not survive; and that his estate pass to Joan and Michael. Joan’s will directed that Michael serve as her personal representative and receive the assets of her estate, and that if he didn’t survive, all would go to Billy and he would serve as personal representative.
Joan’s powers of attorney named Michael to take care of her, and named Billy as successor “agent” to take care of Joan. No backup was named.
So, while they had taken steps to plan, they had not taken sufficient steps. They did not plan for the unexpected.
We found ourselves in the uncomfortable position of delving into the most personal affairs of a man and woman we had never met until we were called upon to solve their legal needs. Slowly, we formed a picture of their lives. They appear to have been complex and interesting individuals, and we wish we could have made their “acquaintance” in a different fashion. We did what we could to be sure his estate was handled and she cared for, but wish we knew better what they would want.
Joan will receive Billy’s estate assets after administration. But what of Joan’s estate? Her will provides that all her assets pass to her late husband, and then to Billy. If he did not survive her, her will directed that everything was to pass to his children – of which there are none. There is no provision for an alternate distribution.
Thus, Joan’s assets will be distributed as if she had no will – “intestate.” This means that her estate will be given to her estranged siblings, and the children of any deceased sibling, of which there are several. Evidently, she had not spoken to any of them for decades. And they – all 23 of them – will receive arbitrary shares ranging from 1/8 to 1/36 of everything she, her husband and son had worked a lifetime to accumulate.
Don’t let this happen to you and your loved ones.
Do you have a will? Power of attorney? Medical directive? Are they up-to-date? Can you find them? Could someone else find them?
Review your documents. Make sure your will, power of attorney and medical directive provide for the unexpected; that you have named successor “fiduciaries” (executor, agent); that you have named contingent beneficiaries of accounts and alternate beneficiaries of your estate; and that someone knows where to find your documents if you aren’t there to direct the search.
The laundry hamper is less than ideal.
Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
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