If my father left a will leaving all 4 children equal shares in his estate, can the POA change the distribution?

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If my father left a will leaving all 4 children equal shares in his estate, can the POA change the distribution?

My brother has power of attorney andhe’s on the checking account/IRA. My brother now says he is the only one entitled to the money. Is this true and what about the Will.

Asked on December 20, 2011 under Estate Planning, Missouri

Answers:

Louis Putney / Louis D. Putney Attorney

Answered 9 years ago | Contributor

One acting under a power of attorney has no authority to alter, amend or revoke a Will.  However, during the person's lifetime the power of attorney will be honored to transfer assets in a way that they end up not passing under the Will.  In Florida a power of attorney can not be used to make gifts to the person holding the power.  The estate or the heirs under the Will may have the right to sue for recovery of the assets misdirected using the power of attorney.  You should consult a probate attorney experienced in estate litigation to determine your rights in this situation.

FreeAdvice Contributing Attorney / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

A Will speaks at the death of the person making it. A power of attorney ends upon the death of the person making it. In your situation, the Will controls of your father over the power of attorney that named your brother your father's attorney in fact.

I suggest that you consult with a Wills and trust attorney further about the situation that you are writing about. From what you have written, your father's Will controls over the power of attorney naming the one brother as the attorney in fact. Depending if the checking account or IRA accounts are joint tenancy accounts or not, your one brother might be entitled to those accounts.


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