Is this legal?

A farmer sets up a Revocable living trust in 2003. His checking account was listed in
trust. Before he died of cancer and was unable to go to bank, he gave finical power of
attorney to daughter. Daughter takes POA to bank. Lists her brother, who was only going
to get $100 from trust and so was she, as co-owner of dad's account. Well dad dies and
brother transfer $4600 from dad's checking into his savings. Is this a legal way to get
around a trust and to steal from it? Friend is going to ask her lawyer. Who will ever
know that is that was really what dad wanted? Smells like fish to me.

I would guess it might be found to be legal, tho not ethical.

Its all in the details tho, and lawyers and a judge would spend many dollars looking over those details.

A revocable trust is kind of a pointless thing, since it can be revoked about any time, it really doesn't mean much 10 minutes after it is signed as its no longer binding?

Dad wasn't too sharp if he set up a will/trust cutting his kids out of it, and then appoints one of his kids as poa; how'd he think that was going to turn out????

Paul

Maybe.

A POA is extinguished upon death of the principal.

Was brother added to account records while father was extant?

Dean

All the work was done when dad was alive but unable to go to bank.

poa can pretty much do what they want too with dads money as long as he was alive poa goes away upon his death also if she was a full owner of the account not just a "signer" any money that is left in the account now belongs to her

Was daughter trustee of trust?

Dean

I'm a little curious why it's anyone's business other than the old man, the son and daughter if that's the extent of his immediate family?
I would think the transaction itself is legal... and quite honestly, unless you're rooting for the tax man joint accounts are about the best way you can get ahead in these situations...
It would seem to me that if the sister added her brother as a joint holder of the account in absence of other siblings... I really don't see the issue.

Rod

George, as part of my semi retired law practice here in Indiana I work in areas of Probate and POA's etc, so I can give you a Professional Legal Opinion of what the answers might be (subject to trust terms) here in Indiana at least.

1) A farmer sets up a Revocable living trust in 2003. His checking account was listed in trust. Before he died of cancer and was unable to go to bank, he gave finical power of attorney to daughter.

a) I would need to read the Trust Instrument and see who was/were the Trustee(s),,,,,,,,Who was a successor Trustee, and if so what event would trigger their becoming such. If the checking account was placed into the Trust and subject to how it was set up and who had what kind of authority, THE TRUSTEE IS THE PERSON WHO MANAGES TRUST PROPERTY AND THE CHECKING ACCOUNT IS TRUST PROPERTY...

b) Did the Trust permit/allow the granting of POA authority for another person to assume duties as Trustee??? Or do the terms of the Trust PROHIBIT any successor or other trustees to be granted power UNLESS IN STRUCT COMPLIANCE WITH TRUST TERMS. IE Did the Trust allow appointment of a successor trustee via a POA or not???????????? Maybe yes maybe no I CANT ANSWER UNTIL I READ THE TRUST. In general a POA can grant most any authority UNLESS SUCH A GRANT IS CONTRARY TO THE TERMS OF ANOTHER INSTRUMENT. If I draft an instrument and in it make it clear no other person can be granted successor or POA authority unless and until I do such and such, that's one thing. But if its NOT prevented then YES most authority can be granted via a POA


2) Daughter takes POA to bank. Lists her brother, who was only going to get $100 from trust and so was she, as co-owner of dad's account. Well dad dies STOP THE PRESSES

a) POA expires upon death of Principal so the POA has no authority under the POA terms then.
b) What transpires upon the death of Dad????????? I HAVE TO READ THE TRUST TO ANSWER THAT. Typically upon the death of the
Trustee the successor trustee is required to distribute assets etc sort of like if there was a Wills. The Trust would
say upon death of dad daughter is successor trustee and she is to do so and so AND THATS WHAT SHE HAS TOP DO IN
GENERAL. The POA is expired, now when dad dies the trust rules.

3) And brother transfer $4600 from dad's checking into his savings. Is this a legal way to get around a trust and to steal
from it?

LEGAL ANSWER it depends on what the Trust said I HAVE TO READ IT TO ANSWER but it sounds FISHYYYYYYY LOL


4) Friend is going to ask her lawyer.

NOW THATS THE ABSOLUTE BEST THING TO DO, ask a Professional who practices in Probate and Trust and don't rely on what lay persons or even attorneys may say on a Tractor Forum UNTIL THEY READ THE TRUST AND RESEARCH THE LAW...

5) Who will ever know that is that was really what dad wanted?

IF I (or others) READ THE TRUST I COULD TELL YOU but its a bit hard to do not having read it

SUMMARY its freaking IMPOSSIBLE to say whats legal or not legal unless and until the trust is read and reviewed and lay persons or even attorneys opinions arent worth a cent until then ASK A PROFESSIONAL ATTORNEY AND LET HIM READ THE TRUST AND ONLY THEN CAN YOU GET WORTHWHILE OPINIONS.. If anyone here has the smarts or ability to answer the questions perfectly not having read the trust WE BETTER CALL GUINESS BOOK OF RECORDS AND MAYBE HAVE THEM PICK LOTTERY TICKET NUMBERS LOL

Or have the person do as they like, its not up to me or anyone here...

Best wishes

John T BSEE, JD Attorney at Law
Untitled URL Link

The way I read this is, the daughter put the brother on the account and then wants to know where all the money went?
DUH!!!

Dad was trustee of his trust.
Daughter and son were not listed as co-trustees and no place in trust does it mention POA. There were 3 other mentioned as co-trustee. It took over a year after death to determine that. A phoney will was drawn up too, lawyer just laughte when he saw it.

All the fishy business was done while dad was alive and unable to go to bank. Bank where checking account said there was no trust, yet a paper they gave stated it was a trust. Sounds like bank doesn't want to be blamed.

I'm glad my mom died at 88 pennyless, she outlived all her savings and at the end was living on a very small SS. It's hard to convince people to delay drawing SS, because inflation will eat them alive. I'm glad I waited until full retirement age to tap into my SS.

Nice talking.
George

No trustee, No co-trustee. She was just a $100 beneficiary who conspired so her brother, another $100 winner, to get it all.

Like JohnT says above, terms of both trust and POA must be known for definitive opinion.

That said, bank could POTENTIALLY be held liable for breach of fiduciary duty, again depending upon terms of trust, POA and account.

In any event, daughter and brother appear to be scum bags.

$4,600 will not buy much legal advice, so they will likely get away with it.

Dean

John, I just want to ask you, do you know anything about divorce and custody cases?

I used to work some of that but not much anymore ITS TOO NASTY AND HATEFUL AND HARD BITTER FEELINGS and children suffer. I just want nothing to do with it as there are no winners especially the children. The ONLY cases I do now are if they are uncontested and the people are civil but just need to get things settled up and made legal.

Take care and best wishes

John T

Now it sounds even more fishy. Id need to read the trust and POA but just have that person talk to a good local lawyer

Take care George

John T

George, you gave more info since my first post so based on that I can provide at least some other opinions:


1) "Dad was trustee of his trust. Daughter and son were not listed as co-trustees and no place in trust does it mention POA."

If the Trust didn't place a limitation on a subsequent POA assignment and iffffffffffffff the POA said the right things, the POA could indeed have some authority as to trust property. ID HAVE TO READ BOTH THE TRUST AND POA TO SAY MORE. No one, lay or even a professional can answer it further not having read the trust and POA.

2) All the fishy business was done while dad was alive and unable to go to bank. Bank where checking account said there was no trust, yet a paper they gave stated it was a trust. Sounds like bank doesn't want to be blamed.

The checking either was or was not placed in the Trust (cant have it both ways) I cant say without seeing the bank documents and the trust. However even if it was the POA could have gave the daughter authority (have to see POA) and even if it wasn't in the trust the POA could still have given the POA authority to deal with non trust checking (have to see POA)

HOWEVER despite all this the law imposes strict duties on a fiduciary meaning the daughter could still be guilty even if the POA gave her authority, she has to act in the best interest of the principal and if not or she was involved in self dealing she can still be guilty.

Talk to a Lawyer and he has to see the trust and POA to provide help. No one here can not having seen the POA and trust.

John T Country Lawyer

And to all of the folks on the sidelines, I would like to point out that there are a few facts missing - like was there a will? Who was executor/executrix? What other potential heirs are waiting to collect? More children? Siblings?
As John T said, without reading and understanding the related documentation like the trust, the will, and who was responsible for what, there is no accurate way to even advise on this matter. On the surface, it would appear that there may have been some improper activity on the part of daughter and her brother, but depending on how the whole thing was set up, they may have both been within their rights.

Short answer: the right thing to do is to seek legal advice from a professional.

Thank you.

EXACTLY

Amen

Not having the Trust or Will or POA and having reviewed allllllllll those and the laws of the state including duties of a Fiduciary, ITS IMPOSSIBLE FOR EVEN A LAWYER LET ALONE A LAY PERSON TO PROVIDE AN ANSWER. Its still fun to see Legal or Electrical questions on here as they draw more responses then any other topics lol

John T Attorney at Law

Here is another strange one- My mother passed away last year. Around 2005 she remarried, then divorced around 2006.

After she passed, we were going through her accounts (bills/savings). Everything was working pretty good with paying the debts.

Then we came across a Credit Union savings account that had some savings in it. Went to credit union to close account and withdraw money to pay bills. Presented Death Certificate, divorce settlement (which specified that this account would be retained by my mother), to the credit union. Credit Union pulled their paperwork and said a POD(payable on death) was on file and her ex-husband was listed as the payee.

I showed them the court approved documents showing that she retained the rights to this account. Their response was "Our records 'nnalert' any court document! I was astonished and asked "So you say your documents 'nnalert' any court records? They responded "YES".

The account is still there, ex has passed away also and the balance of the account was substantial but not enough to warrant paying attorney fees.

I wanted to fight it just on principle but I would just be throwing more money away.

Bless you John.
I always enjoy getting your take on matters such as this.
I'm not one of those who would eternally damn all attorneys.
I would damn many of them.
But I would only eternally damn those who left their craft for politics.
Thanks for the pro bono stuff you do here.

The will is a section in the trust. Not sure about the POA, exactly when and where it came from.

Sorry, I'm not a good author. There are actually 4 daughters. One daughter was cheated
out of her money by the other daughter with POA.

There are 6 siblings, 4 girls and 2 boys. One boy got all the money from checking. One will never know if the girl with POA acted on her dad's behalf or her brother's. Will be hard to prove because dad is dead and never mentioned his intentions to other children.

When an older gentleman I knew was dying of cancer he asked a son to take care of things everybody was OK with that he had the legal documents drawn up and took them to his dad the hospital had a legal person there who was supposed to look after the patient interest that was a good idea. Unfortunately Charlie took a look at all the papers and didn't like them I finally asked him if it's okay for Gary to look after things he said that's what I want a quick look at the hospital representative and then she let him sign it.
But on the other end one older farmer was unconscious for a couple days when he came to he found out a guy who wanted his farm had managed to get a judge in there declared him incompetent and gave a guardianship to a person who turned around and sold the farm.
That's why in my will it's clearly spelled out not only what I want done but why I had an aunt who was very special to me when she passed I was not in the best shape later I found my mom her own sister had been able to talk people into having what she wanted done things that marie definitely wouldn't wanted my mom got money out of it . But in time payback came just have patience what happened was a surprise to me my mom found out I got everything thing that was left she tried to get me to split it up the way she wanted to I said I'm respecting Maries wishes .then she tried to find out what I got and she never did drove her nuts. The best part it's going to a charity in Maries name

George, if the Will is a section of the trust, it may well be a "Pour Over Will" which places assets over into the trust upon death if they were there already. If that's the case the trust rules and the successor trustee is bound by the terms of the trust NOT any POA which expired upon dads death. To answer all the questions an attorney needs to review the trust and will and POA and cant answer anything otherwise.

John T Attorney at Law

JohnT, The only problem is FINDING AN EXPERIENCED ATTORNEY who wants to work instead of collect his hourly fee. Really how does a person who doesn't use lawyers and never finds a need for one, find a good one?

You are right, "Pour Over Will". Brother produced a will that the attorneys just laugh over, no whitness.