QUESTION

Are there any laws that disallow a person to be his mother's POA and beneficiary?

Asked on Nov 27th, 2013 on Estate Planning - Pennsylvania
More details to this question:
My mother recently passed. She had an IRA with PNC that I helped her transfer from Wachovia. The IRA was a payable on death beneficiary account. PNC required that I use their POA forms to make the transfer. Now that my mother is dead, PNC has refused to distribute the funds. PNC now claims that since I am one of the beneficiaries and also held the power of attorney that we must probate the account. Are they not in breach of contract?
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2 ANSWERS

In answer to your question there is no contract that PNC is in breach of. You did not handle this correctly. Financial powers of attorney are for the living, not the dead. Your mother obviously did not have a properly drafted power of attorney drafted by a lawyer. Even where a lawyer drafts a power of attorney, the financial power of attorney is to be used to benefit the principal, in this case your mother. It is not to be used to benefit you. There are limits in power of attorneys as to whether an agent can make gifts to him or herself and even where permitted there may be a dollar limitation. Since you chose to rely on the PNC bank forms, you should have reviewed the form to see whether any sort of gift was authorized. My guess is that it was not. In such case you could not use the power of attorney to change the beneficiary on any IRAs or other beneficiary designated asset. Your mother had to do that. Making her estate the beneficiary, even by default, of an IRA was really poor estate planning. You have taken a non-probate asset which would be exempt from creditor's claims, and changed it to a probate one, exposing it to potential claims. Since the estate is beneficiary, there is going to be tax liability too. You or the personal representative of your mother's estate will need a probate attorney who practices in the county where your mother lived prior to her death. Pay the attorney to review the bank forms, insurance forms, any will and anything else of relevance. Without looking at this, I don't know if there is any way to salvage this absent probating an estate.
Answered on Dec 03rd, 2013 at 4:58 PM

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Criminal Law Attorney serving Munhall, PA
Partner at Pelger Law
3 Awards
I think any lawyer would need to know more information before giving a definite answer. An IRA listing a living beneficiary should be payable on death to the ben. If what you are saying is that they won't do this because you made yourself the beneficiary with mom's POA, I have never heard of that. Possibly there is something going on here? Like maybe your siblings are challenging the transfer because mom was incompetent? Like I said, you need to consult with a lawyer.
Answered on Dec 03rd, 2013 at 4:57 PM

William R. Pelger, Attorney Munhall, Pennsylvania 412-461-1900

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