Legally Speaking by Cassandra Savoy, Esq. OP/ED
I got a call the other day from a frantic woman who said: “My mom died. She did not have a Will and Joe, her second husband of only two years, won’t let us get our mother’s things out of the house! There are four of us siblings. While my mother was ill, I had her power of attorney. I did everything. Joe did nothing but eat the food we purchased for my mother and enjoy my mother’s house. As my mother’s power of attorney, am I not authorized to gather all of the valuables she promised us and divide them among my siblings?”
First, let’s resolve the power of attorney issue. You can only act as another person’s agent, that is to say use the power of attorney given you, while the person is alive. More likely than not, when Mom died, the power of attorney was voided and no longer gives you authority to act in her stead. For example, if the power of attorney permitted you to withdraw money from Mom’s bank account, once Mom died, you can no longer exercise that privilege.
Mom died intestate. This means that Mom died without saying what she wanted to happen with her assets and liabilities, and without naming who she wanted to put in charge of closing out her life in an orderly manner. Sadly, for these four, the law favors “the second husband of only two years,” Joe.
If the children decide to challenge Joe being named as administrator of Mom’s estate, they should decide who will be their spokesperson in the probate process. The reality is that in order for the court could grant Letters of Administration to one of the children, Joe would have to affirmatively renounce his right to get Letters of Administration in favor of one of the children, or the children would need a compelling reason, like Joe has dementia, or Joe is bedridden.
Just as an explanation, “Letters of Administration” makes the recipient the personal representative of the deceased and grants the representative the right to do whatever is required to close out the deceased person’s life in an orderly manner.
With Letters of Administration, the representative can, for example, sell real estate, divide the proceeds and possessions among the heirs, pay taxes and other debt, and accept rents or other payments due the deceased.
Mom had insurance two insurance policies. Mom named one child the beneficiary of a $25,000 policy and another child the beneficiary of a $10,000 policy. The child receiving the lesser amount thought it was unfair and wanted to know if the insurance company could be compelled to equalize the two policies so that each would get $17,500.
No way! An insurance policy is a contract between the deceased person and the insurance company. The contract goes something like this: Mr. Insurer, I will pay my premiums during my lifetime. When I die, you will give the person I name the value of my policy. No one can change the beneficiary after the policy holder’s death. A contract is a contract!
There is a minor consolation for the children though. Often families don’t have $10,000 sitting around to pay for funeral expenses. Therefore, funeral expenses are often paid with money from and insurance policy. However, Joe was not a beneficiary of an insurance policy.
The children who are beneficiaries have no obligation to use their insurance money to pay for Mom’s funeral. As the decedent’s spouse, Joe is exclusively responsible for the funeral expenses. If Joe does not have the money, there may be room for the children to negotiate.
The children want some of the contents of the house. Mom had many antiques and valuable art works. Among her valuables, Mom had Limoges China and original art works purchased before the artists like Leroy Campbell and Charles Bibb became known and famous. Mom had Mikimoto pearls given to her when her first husband, the children’s father, was stationed in Japan. Mom had always promised that the children inherit them.
Unfortunately, Mom died without a Will and that means that the contents of the home belong to her surviving spouse, “the second husband of only two years, Joe!”
In the event he chooses not to share, not to negotiate…too bad, so sad!
