QUESTION
What can be done if my dad didn't sign his living will?
Asked on Feb 11th, 2014 on Estate Planning - California
More details to this question:
Who can get money out of his account if he didn't sign the will?
17 ANSWERS
Contracts Attorney serving Auburn, WA
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Singletary Law Offices, PLLC
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A "living will" is different than a Last Will and Testament. If your dad didn't sign his Last Will identifying his wishes about the disposition of his assets remaining at his death, that can be an uphill battle to get such a Will admitted and recognized by the court. Courts don't admit unsigned Wills because the inference is if the Decedent wanted that document to be his Will and it is a true reflection of his desires, he would have then signed the Will to make it so. As far as who is entitled to funds in an account at a person's death, there are a number of other factors that come into play such as whether there was anyone jointly named to the account; whether there was a beneficiary designated on account documents; whether your dad has an estate that is subject to probate or whether his estate may have been open to administration under WA's Small Estate Affidavit procedure; etc. There are too many unknowns to answer who is authorized to access a decedent's bank accounts.
Answered on Feb 17th, 2014 at 4:58 PM
Then there is no trust set up and the money would go as though he had no Will.
Answered on Feb 14th, 2014 at 3:26 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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A Living Will deals only with medical treatment. If you are speaking of a Last Will and Testament, if it is not signed, then your father's estate would be handled as "intestate." That means that if his account is in your father's name alone, then his "heirs" would be entitled to the account. A probate estate would need to be opened and a Personal Representative appointed, unless all of the assets are worth less than $22K.
Answered on Feb 13th, 2014 at 4:53 PM
Edwin K. Niles
Unclear. Living will is a term used to describe a health-care power of attorney. It is not a will. If no will, his heirs (closest relatives) inherit. Perhaps you (or whoever) can use a small-estate affidavit.
Answered on Feb 13th, 2014 at 4:52 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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First, the living will should only relate to making medical decisions for him, not financial decisions. He can give a power of attorney for financial decisions to somebody, if he is competent. If he is not competent, then somebody will have to go to court and be appointed his guardian and conservator.
Answered on Feb 13th, 2014 at 4:51 PM
A living will is a document that indicates a person's preferences for health care during major illnesses and end of life situations when that person is no longer able to make such decisions on his or her own and/or communicate them to the medical staff. It often designates a person to be responsible for making such decisions. It does not give anyone the authority to deal with financial matters. Assuming that your father has passed away, any interested party (family member, creditor, etc.) can petition the probate court to name an executor or personal representative who would be granted the authority to gather all of the estate's assets, including money in bank accounts.
Answered on Feb 13th, 2014 at 4:51 PM
Admiralty / Maritime Attorney serving Monrovia, CA
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The Law Office of Nathan Wagner
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I think you mean that he didn't sign the will (a "living will" is a different document, and it deals with health care decisions, not bank accounts). Check with the bank to see if he designated a beneficiary or filled out pay on death instructions. If not, you will have to go to probate court and have an administrator appointed for his estate. That administrator will be authorized to deal with the bank.
Answered on Feb 13th, 2014 at 4:51 PM
Thomas Edward Gates
A living will only defines the type of medical treatment he wishes if he is terminally ill or in a permanent coma. If he is still alive, he will need to make a Power of Attorney. If he is deceased, then his estate will need to be probated. An Executor would be appointed by the court and, this person can have access to his accounts.
Answered on Feb 13th, 2014 at 4:50 PM
Probate Attorney serving New Orleans, LA
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James G. Maguire
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If there are no other names on the account, an estate representative would have to deal with the account.
Answered on Feb 13th, 2014 at 4:49 PM
3 Awards
An estate may need to be opened. I urge you to consult with a probate attorney where your father resided. Best of luck to you.
Answered on Feb 13th, 2014 at 4:49 PM
Commercial Attorney serving Chicago, IL
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Ashcraft & Ashcraft, Ltd.
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A Living Will is typically a declaration of the persons intentions and preferences relating to life sustaining treatments near the end of life. A Power of Attorney for Property grants authority to an agent that allows the agent to deal with the property of the principal. If your father does not have a joint owner on his financial accounts and did not appoint an agent granted authority to deal with his financial accounts then there is no one with legal authority to assist him when he does not have the legal competency or capacity to act on his own. In this case the only option is to open a court proceeding and have a guardian appointed. The court will appoint a guardian to manage the estate and assets for someone who is unable to manage their own business affairs. This is a costly process but the only available procedure where the individual is unable to act on their own and no prior arrangements were made. After death, the representative of the estate would be able to deal with the assets in the estate and the guardianship will be closed.
Answered on Feb 13th, 2014 at 4:48 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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If your Dad didn't sign his will, then he has no will. He died "intestate," so that the heirs at law inherit according to the laws set forth by the Oregon legislature. You, or one of your siblings, should petition for administration of his estate (or, if the assets at stake have small value, then a small estate affidavit may be appropriate). Do yourself a favor, hire a probate attorney to assist you.
Answered on Feb 13th, 2014 at 4:48 PM
Trusts Attorney serving Sacramento, CA
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Law Office of Victor Waid
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If no will, then the beneficiaries stated on the account are entitled to the money.
Answered on Feb 13th, 2014 at 4:48 PM
You will have to probate unless there are designated beneficiaries on the account. Maybe small estate proceedings if the estate is small enough.
Answered on Feb 13th, 2014 at 4:47 PM
A will or trust must be signed to have effect. If he has neither probate law controls.
Answered on Feb 13th, 2014 at 4:47 PM
2 Awards
You may be able to do a small estate affidavit if the TOTAL value of his estate was under $150,000 (rare if he owned a home). Otherwise you will need to hire an attorney and open probate. The assets will be distributed to his legal heirs.
Answered on Feb 13th, 2014 at 4:46 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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A living will and a will are two very different things. And a living trust is a third. A living will says, in effect, don't keep me alive if I'm going to die anyway. If he died and had more than $150,000 in assets, you must file a petition for probate. If less, wait 40 days and the complete the appropriate affidavit, and the bank will give the money to the heirs, in this case, his widow, if any, and issue.
Answered on Feb 13th, 2014 at 4:46 PM