New York Estate Planning Legal Questions

It is up to your parents to decide to whom they grant a Durable Power of Attorney and to name successor agents if the person they name is unable or unwilling to act.  While some lawyers require that an agent under a Durable Power of Attorney provide an accounting to the siblings or others to prevent suspicion, others think it will lead to discord as those who are not the agent may go over it with a fine tooth comb and question the agent's decisions.  Some lawyers advise have co-agents (two, not three) for major decisions such as liquidating investments or selling the house, with the co-agents to act together.  Appointing three co-agents increases the chance of disagreement and failure to act timely if they must act together and of "the right hand not knowing what the left hand is doing" if they do not.  It is generally not recommended for the day to day responsibilities which you describe.... Read More

Your authority under the POA expired with your grandmother.  If there is no Will, the estate, after debts are paid, will be distributed according to the NY state laws of heirship.  Someone must be appointed by a court to settle the estate and open a bank account for it.  Contact a probate lawyer who practices in the surrogate's court in the county in which your grandmother died.... Read More

To show that your father does not have legal capacity to make a Will, have him examined by a neurologist or other physician who completes a Physician's Certificate of Medical Examination or equivalent NYS document.  Note that some people in the early stages do have capacity to create a Will:  a statement that someone suffers from dementia or Alzheimer's is insufficient.  Note also that your father is under no obligation to tell any or all of his children what he is doing.... Read More

You do not write that the trust declaration names you and your brother as current beneficiaries (or even as beneficiaries after your mother dies).  Unless it names you as the former, you are not entitled to any information.  If it does, in many states you are entitled to an annual accounting. Whether a sister/co-trustee has violated her fiduciary duties by living in the house rent free for a few months and taking money not due her from the trust is a separate question.  If you have evidence tending to prove this, you might want to contact an elder lawyer or a lawyer who handles fiduciary litigation (which is expensive).  You can find an elder lawyer in your area using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)    ... Read More

This varies by location and lawyer.  Please also keep in mind that while your wishes may be straightforward, the law often is not.  This is especially true when it comes to securing care during your old age.  At any age you are more likely to become disabled than to die.  If you have made it to 65, you may well live another 25 years (on average) but 6-8 of them will include physical and 3-4 of them mental disabilities.  To provide for your care as well as gift others after you die, consider seeing an attorney who practices elder law as well as estate planning.  You can locate one using the Find a Lawyer function on the website of the National Academy of Elder Law Attorneys (www.naela.org)... Read More

The property can easily be transferred by deed from your mother to the two children, but she needs to be appointed executor (if there was a will) or administrator (if no will) of your brother's estate, because an executor or administrator's deed is required to make the transfer. Until a legal representative is appointed nobody has any legal right to do anything with your brother's assets. Although your father doesn't need to be part of the transfer, he should be, to ensure there is only one deed, and that deed sets out all the ownership rights of everyone. Once your mother is appointed, she and your father should execute a new deed that gives 25% to each of the two children, and 50% to your father. They will also need to decide how they want to hold the property: as joint tenants with rights of survivorship (meaning when one dies, the other two automatically take half of the share of the deceased) or as tenants-in-common (meaning when one dies, that person's next of kin inherits their share of property).   ... Read More

"They said the court may appoint a lawyer"... who is "they"?  Your father's widow? Has she hired her own lawyer?  A better question to ask rather than "what is the job of this extra lawyer" is, do you understand what your job is as executor?  It doesn't seem that you do because if you did, you wouldn't be asking whether the court will ask you to look at bank statements. It's your job to open an estate bank account, be in charge of that account (which includes looking at bank statements), marshall the assets of the estate (which include the car accident settlement), and file an accounting with the court, which should hopefully be consented to by all distributees, and which shows that the assets will be distributed as per your father's will. You need to immediately hire a lawyer who will see that the estate is settled properly. If you don't, and you're not following the proper procedures to settle the estate, and the widow is too disabled to take on the role of executor, if she's hired an attorney, her attorney might petition the court to have you removed as executor and appoint an outside lawyer to oversee settlement of the estate. Don't let that happen, because that attorney's legal fees will be paid from the assets of the estate, and that will diminish the assets of the estate, and you will have no control over those fees.... Read More