Legal Question?

[Gregg]

If a person is named executor of a will and living will then after a period of years they are removed, would the person being removed have to be notiified by the lawyer?

My Mother-In-Law was named the executor of her brother-in-law's estate. He is experiencing an agressive form of dementia that has caused his drivers license to be revoked. He is blaming my Mother-In-Law for this and has threatened to remove her as executor as well removing her from his will. If he infact told his lawyer to remove her would the lawyer have to notify her? I am assuming yes on the executor part and no on the will?

Thank you in advance.

[B-Fly]

I'm not positive, but my instinct is no on both, unless the executorship/power-of-attorney was already triggered under the living will, which I'm assuming it was not, unless the brother-in-law has already been deemed legally incompetent. Being the executor of a will is not a right, but rather a responsibility, and even then it only attaches once the document goes into effect. So long as the brother-in-law is still legally competent to make his own decisions, I would assume he could amend these documents as he wishes, without any requirement to provide notice to the executor or any of the beneficiaries named in the prior will.

[Pogues]

I believe the former executor does not need to be officially notified of their removal from office. My wife was a backup executor to me on my mom's will and was removed later on. She was never officially notified, though my mom did take a measure of pleasure in telling her that she was removed. This took place in Illinois.

But don't take that for law.

[B-Fly]

Now if you believe that the brother-in-law's dementia was such that he was not legally competent to amend his will or living will, your mother-in-law could presumably challenge the new documents in court while seeking a clear designation of power of attorney. Ugly stuff, that, but I've seen it before.

[Gregg]

Thank you both for the input.

I do not know if this means anything or not; she is on his checking account (she pays his bills not court ordered just an agreement between them). All of the doctors are contacting her for discussions on his medical condition. I do not know if that constitutes "triggered" or not?

If my Mother-In-Law contacts his lawyer is he allowed to give up the information?

[Gregg]

Now if you believe that the brother-in-law's dementia was such that he was not legally competent to amend his will or living will, your mother-in-law could presumably challenge the new documents in court while seeking a clear designation of power of attorney. Ugly stuff, that, but I've seen it before.

One doctor told her that he is not competent. He was supposed to send something to the lawyer. The lawyer has not offered up if he has received it or not.

One of the problems is that we do not know if there really is a new document. Would the lawyer be allowed to tell her of any changes if she asked him?

[B-Fly]

Would the lawyer be allowed to tell her of any changes if she asked him?

Only if the brother-in-law agrees to waive privilege, which sounds unlikely. Sadly, it seems like the only recourse here would be to have him officially declared incompetent by a court of law, retroactively to before any amendments to the documents, thereby nullifying any amendments.

[Gregg]

Thank you.

This is really stressful on the whole family.

[Gregg]

I have been informed by my wife that it is actually a trust not a will.

My Mother-In-Law is the power of attorney for his health. If he took her off would or should the lawyer notify her. Because right now she is signing for his health care (medical as well as mental issues). In this case if she asks would he have to answer.

[B-Fly]

I have been informed by my wife that it is actually a trust not a will.

My Mother-In-Law is the power of attorney for his health. If he took her off would or should the lawyer notify her. Because right now she is signing for his health care (medical as well as mental issues). In this case if she asks would he have to answer.

If she has power of attorney over his health, that presumably could not be changed without notification and a court order. And that might also preclude him from amending his living will, i.e., advanced health care directive. I do not believe it would preclude him from amending his last will and testament. With respect to a trust, a trust can be a component of a last will and testament, such as creating a trust for minor children. It can also be a living trust. But if she is the executor of a living trust, no, I don't think he can remove her as executor without some notification and hearing, because he is not the trust. In any event, all of this is complicated, so y'all shouldn't rely on my freelanced legal instincts. Your mother-in-law should probably consult with her own trusts and estates attorney (i.e., someone other than the brother-in-law's attorney).

[Gregg]

If she has power of attorney over his health, that presumably could not be changed without notification and a court order. And that might also preclude him from amending his living will, i.e., advanced health care directive. I do not believe it would preclude him from amending his last will and testament. With respect to a trust, a trust can be a component of a last will and testament, such as creating a trust for minor children. It can also be a living trust. But if she is the executor of a living trust, no, I don't think he can remove her as executor without some notification and hearing, because he is not the trust. In any event, all of this is complicated, so y'all shouldn't rely on my freelanced legal instincts. Your mother-in-law should probably consult with her own trusts and estates attorney (i.e., someone other than the brother-in-law's attorney).

Thank you my friend. This has really been helpful.

This legal threat by Uncle Tony just came up a few days ago. We have definitely told her to contact a lawyer.

[Lucky]

B-Fly has a firm grasp on things. But, I'll throw in my two cents just to flesh a couple of things out.

A Will has no force or effect until it is probated, which is, in almost every case, after the person has died. Most wills nominate a personal representative, usually known as an Executor or an Executrix, but this person has no power to do anything until the person is dead. And the will can be amended at any time, without notice to the nominated personal representative. Now, if a person has become incompetent, any codicils or new wills could be invalidated if a) the person had been declared incompetent prior to the documents being signed, or b) a court later finds that the individual was incompetent at the time the document was signed.

A living will, by itself, is merely a directive to physicians. It isn't a power of attorney, and it doesn't name anybody to do anything. It just tells the doctors that the person's wishes are regarding the use of life-sustaining measures.

Post #9 changes the game, by throwing in the existence of a trust. There are two kinds of trusts that are relevant to us here. One is an inter vivos trust, which means a trust created during the life of the settlor, meaning the person making the trust. An inter vivos trust is usually effective immediately upon being funded. It names a Trustee or Trustees, whose job it is to administer the trust according to its terms. The Trustees can only be removed if the trust document specifically provides for their removal, or if they have acted improperly so as to justify having a court remove them as Trustees.

The second type of trust is a testamentary trust, which is a trust created by the terms of a will. As a will has no effect until it it probated, a testamentary trust likewise has no effect. So, the Trustee of a testamentary trust has no powers unless and until the person is dead. The rules for changing a testamentary trust mirror the rules of changing a will, since they are created by will.

Two other things have been mentioned. One is a power of attorney. This document empowers one person to do a certain thing for another which they could not do absent the power of attorney. For example, I could grant you power of attorney to purchase a car for me in my name. Or sell a house. There is also a general power of attorney, which can mean that the attorney-in-fact has the power to do anything the person could do. Some states permit "durable" powers of attorney, which survive any period of disability of the person giving the power of attorney. Powers of attorney can be changed similar to the way wills can be changed. The attorney-in-fact has no right to continue in that position, but if he/she is entitled to compensation or reimbursement, that claim would survive.

The final thing which has been mentioned is a power of attorney for health purposes, commonly known as a health care proxy. This can be made as a part of a limited power of attorney, a general power of attorney, or can be a stand-alone document. A health care proxy gives the holder the right to make health care decisions for the person in question. As a general rule, physicians will defer to a health care proxy even if there is a directive to physicians (living will). Changing a health care proxy, like some of these other documents, works like changing a will. If the person has been declared incompetent, they cannot change their health care proxy. An attempted change can be set aside if it is determined the person was incompetent at the time the amendment or revocation was attempted.

Hope this clears some things up.

[Gregg]

Thank you very much.