Lead me not into temptation
Q : You recently wrote a column titled “License to steal,” that warned of the problems with giving someone authority under a power of attorney. My nephew is helping me sell a house and wants me to sign a power of attorney so he can get things done and not bother me with all the details. I would like to do this and I trust him implicitly. However, your caution makes me wary. Should I give him power of attorney or not? A : In the column you are referring to, I stated that attorneys will warn clients that signing a power of attorney gives the named agent a license to steal due to the broad powers the agent has once appointed. The point of the attorneys' warnings is that you need to be absolutely sure the person you give a power of attorney to is 100% trustworthy. You say you trust your nephew “implicitly” so it sounds like you would not be at risk to sign a POA that appoints him but if you have even a single doubt that he could be led astray, you should reconsider. Unfortunately, the humorous takeoff on the well-known Bible verse can be true, “Lead me not into temptation; I can find it myself.”
Also, if you do decide to go ahead with a power of attorney, you can give him “limited” power of attorney that only gives him authority to deal with your real estate. This way, he does not have full access to all your accounts and other assets, just real property. Finally, you can identify the specific real estate and make the power of attorney valid only for a limited period of time. In other words, you can restrict an agent under a POA to just certain tasks during a defined period. Consult your attorney but it sounds like your nephew is considerate of your time and energy and, if he is a
savvy real estate person, you may be very well served to appoint him to act on your behalf in this matter.
Q
: My sister died and did not leave a will. She left no written instructions even though she has real estate, bank accounts and, I think, investments. Do we need to have a probate and if so, who will be the executor? Can I? And if so, how do I know if she owes people money? A : If your sister's assets are titled in her name then yes, you could be looking at a court procedure called estate administration which is like a probate but without having a will involved. In these cases, there is not an executor appointed, but the personal representative is called the administrator. There is an order of preference the court will go by to determine who can be appointed administrator. Usually it is a spouse, first, then an adult child or grandchild. If none of these people exist or if they decline to be appointed, the parents of the decedent can ask to be appointed and if they are no longer living, then siblings can seek appointment.
As part of the administration, a Notice to Creditors is published in the newspaper and the administrator has a duty to notify known creditors of the proceeding. In probates and administrations such as this, there are prescribed, step-bystep procedures from beginning to end that are overseen by the court. Find an estate attorney who can assist you in filing the petition with the court and I am sorry for the loss of your sister.
Liza Horvath has over 30 years of experience in the estate planning and trust fields and is a licensed professional fiduciary. Liza currently serves as president of Monterey Trust Management. This is not intended to be legal or tax advice. If you have a question, call (831) 6465262 or email liza@ montereytrust.com