Full question:
My Grandmother has a power of attorney over my Grandfather and she was wanting to know if this will still be in effect even after the death of him? If not he has children that would try to get everything that they could. If him and her wanted everything to go to her after his deaath what would they need to do or is this possible. Also he has alzheimers and I dont think that a will has been done. Is there a legal way for all of this to be less of a burden on my grandmother and for her to get all of their assets?
- Category: Power of Attorney
- Date:
- State: South Carolina
Answer:
A power of attorney is no longer effective when the maker (principal) dies. Any assets that are not already held jointly with a right of survivorship or where the wife is named as a beneficiary will pass according to the laws of intestacy.
Certain assets are not included as part of a person's estate and may pass outside of probate, such as trust assets and transfer on death accounts or property owned by joint tenants which passes under a right of survivorship when one tenant dies.
Assets held in trust, or in an account or policy with an insurer or financial institution with a named beneficiary, typically pass outside the probate process. Such assets go to the named beneficiary outside the probate process. If it is a survivorship account, or transfer on death account, it passes outside the probate process. Property held in trust is distributed according to the terms of the trust. A named beneficiary on a transfer on death account, such as life insurance, CD, etc. doesn’t need to be administered through a trust. Therefore, real estate held by spouses as joint tenants with right of survivorship passes automatically to the surviving tenant outside the probate process. That means it will not be included as part of the estate that either passes under a will or according to state intestacy laws (applicable when there is no will). If the account is held as tenants in common, it's possible that the deceased owner's share could pass to heirs.
Whether the wife can transfer assets into her name will depend on the terms of the power of attorney, such as whether it is durable and remains effective despite incapacity and the scope of the poweres granted. We suggest you consult a local attorney who can review all the facts and documents involved.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
