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The Plain English Attorney

No Will – No Beneficiary

Unfortunately, many people leave planning their estate to the last minute, or they never make a plan at all. In this edition, Jeff examines options and advice from other attorneys to a son on Reddit trying to frantically get his mother’s wishes in place as she lies on her deathbed.

This unfortunately is an all too common occurrence where people have absolutely no planning in place, or they kind of ad-hoc yeh well I threw these people on the beneficiary designation 15 years ago when I opened the account but didn’t stay on top of it and now it is like, “Oh I may only have a few weeks to live. Oh gosh, I guess I better do something.”

The Post on Reddit

My mom, who is my only parent, is on her deathbed. I’m her only child (26 years old). She’s in a domestic partnership, but not married. Her partner and my grandmother both agree her assets should go to me so I’m not concerned about them trying to take anything.

However, I’m confused about the process of probate and whether it’s too late to construct a last-minute will or try to do power of attorney. She’s made me her beneficiary for her life insurance, but not for her bank accounts and I’m not sure about her 401k/stocks or social security. Her partner said that she doesn’t have any debts. But she spent a week at the hospital last week. She has good health insurance but I’m unsure of how much coverage that provides for hospital bills.

This unfortunately may be a very hard lesson if it does happen. There’s nothing like death and money on the table to make people go crazy. So people may have the best of intentions now, or they may just be saying while the person is alive but once they pass on forget it. All bets are off.

So there is a potential for debt here, so that has to be taken into consideration when putting together whatever the plan is going to be.

I’m panicking a bit because she’s about to pass of course and she didn’t have everything set up ahead of time. She has terminal cancer but began deteriorating very quickly in the last few weeks. Right now she spends most of her time sleeping, but when she wakes she’s aware of what’s going on. She doesn’t have any confusion or anything, but she’s very weak and fatigued. I live in Florida if that helps. I was also wondering if it is legal to withdraw the money from her bank account with her permission by sending it to my account virtually. I found out I’m not the beneficiary of that account, but she intended for me to be. She made me a beneficiary of it before it was purchased by another bank. TIA!

This is also a cautionary tale that I bring up with my clients. Usually it is when we are doing an annual review meeting or when we set everything up. We’ve got the “big blue binder” if they are doing a trust. Make sure you always keep copies of those beneficiary forms when they are filled out. I’ve had several clients over the years who started out with one bank, had everything set up, the bank gets bought out, and then that bank got bought out. And by the time they pass on it is already two bank purchases removed. Oh well, we don’t have any of that other paperwork from before so we are just going to throw everything into probate as we don’t have a beneficiary, which could be a disaster if it’s not the correct beneficiary aside from the fact that it has to go into probate now and has to go through that meat grinder.

First Piece of Advice on Reddit

I understand you’re in a confused panic. But just sticking to the legal issues: if your mother is mentally competent it’s not too late to make a will or power of attorney. You *could* withdraw money from her account (*with her express authorization), but you can’t use that to short-change any creditors. That includes hospitals, doctors, Medicaid, or other government aid programs along with tax authorities, credit card companies, or anybody else she owes money.

Even when she passes without a will, you could apply to the probate court for authorization to handle her estate (including paying off the creditors). But this is much easier and less expensive if there is a valid will, nominating you as the estate’s personal representative. In fact, it’s so much better that I would recommend paying for a lawyer to draw up a will not. Most experienced estate lawyers have done deathbed wills before; it’s not new to them.

A lot of companies (hospitals, etc.) will not / should not talk to you about how much is owed to who unless you can show them court authorization.  (*The bank might stop your attempt to transfer the money but that doesn’t make your attempt illegal.)

Creditors – That is a big thing. You can’t just say well I’m going to withdraw all the money and bury it in the backyard. Then we’re not going to have to give it to creditors or Medicaid or anyone else. Ha ha ha we withdrew the money before she died. That does not work and in fact, you can probably get into some legal trouble if you try it.

The above advice is actually solid. Again it’s not the best planning ahead thing to do, but it could get the job done. One thing that I would add – get the grandmother and the partner to sign off on it in addition to mom signing this is what she wants to do. Even if it’s just a kind of handwritten note so if there ever is a question, no see right here. Maybe even go as far as to do it in front of a notary.

Click here to go to the video to hear the entire question and advice given!


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