In this issue

Jonathan Tobin: Defending the Right to a Jewish State

Heather Hale: Compliment your kids without giving them big heads

Megan Shauri: 10 ways you are ruining your own happiness

Carolyn Bigda: 8 Best Dividend Stocks for 2015

Kiplinger's Personal Finance editors: 7 Things You Didn't Know About Paying Off Student Loans

Samantha Olson: The Crucial Mistake 55% Of Parents Are Making At Their Baby's Bedtime

Densie Well, Ph.D., R.D. Open your eyes to yellow vegetables

The Kosher Gourmet by Megan Gordon With its colorful cache of purples and oranges and reds, COLLARD GREEN SLAW is a marvelous mood booster --- not to mention just downright delish
April 18, 2014

Rabbi Yonason Goldson: Clarifying one of the greatest philosophical conundrums in theology

Caroline B. Glick: The disappearance of US will

Megan Wallgren: 10 things I've learned from my teenagers

Lizette Borreli: Green Tea Boosts Brain Power, May Help Treat Dementia

John Ericson: Trying hard to be 'positive' but never succeeding? Blame Your Brain

The Kosher Gourmet by Julie Rothman Almondy, flourless torta del re (Italian king's cake), has royal roots, is simple to make, . . . but devour it because it's simply delicious

April 14, 2014

Rabbi Dr Naftali Brawer: Passover frees us from the tyranny of time

Greg Crosby: Passing Over Religion

Eric Schulzke: First degree: How America really recovered from a murder epidemic

Georgia Lee: When love is not enough: Teaching your kids about the realities of adult relationships

Cameron Huddleston: Freebies for Your Lawn and Garden

Gordon Pape: How you can tell if your financial adviser is setting you up for potential ruin

Dana Dovey: Up to 500,000 people die each year from hepatitis C-related liver disease. New Treatment Has Over 90% Success Rate

Justin Caba: Eating Watermelon Can Help Control High Blood Pressure

The Kosher Gourmet by Joshua E. London and Lou Marmon Don't dare pass over these Pesach picks for Manischewitz!

April 11, 2014

Rabbi Hillel Goldberg: Silence is much more than golden

Caroline B. Glick: Forgetting freedom at Passover

Susan Swann: How to value a child for who he is, not just what he does

Cameron Huddleston: 7 Financial Tasks You Should Tackle Right Now

Sandra Block and Lisa Gerstner: How to Profit From Your Passion

Susan Scutti: A Simple Blood Test Might Soon Diagnose Cancer

Chris Weller: Have A Slow Metabolism? Let Science Speed It Up For You

The Kosher Gourmet by Diane Rossen Worthington Whitefish Terrine: A French take on gefilte fish

April 9, 2014

Jonathan Tobin: Why Did Kerry Lie About Israeli Blame?

Samuel G. Freedman: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Jessica Ivins: A resolution 70 years later for a father's unsettling legacy of ashes from Dachau

Kim Giles: Asking for help is not weakness

Kathy Kristof and Barbara Hoch Marcus: 7 Great Growth Israeli Stocks

Matthew Mientka: How Beans, Peas, And Chickpeas Cleanse Bad Cholesterol and Lowers Risk of Heart Disease

Sabrina Bachai: 5 At-Home Treatments For Headaches

The Kosher Gourmet by Daniel Neman Have yourself a matzo ball: The secrets bubby never told you and recipes she could have never imagined

April 8, 2014

Lori Nawyn: At Your Wit's End and Back: Finding Peace

Susan B. Garland and Rachel L. Sheedy: Strategies Married Couples Can Use to Boost Benefits

David Muhlbaum: Smart Tax Deductions Non-Itemizers Can Claim

Jill Weisenberger, M.S., R.D.N., C.D.E : Before You Lose Your Mental Edge

Dana Dovey: Coffee Drinkers Rejoice! Your Cup Of Joe Can Prevent Death From Liver Disease

Chris Weller: Electric 'Thinking Cap' Puts Your Brain Power Into High Gear

The Kosher Gourmet by Marlene Parrish A gift of hazelnuts keeps giving --- for a variety of nutty recipes: Entree, side, soup, dessert

April 4, 2014

Rabbi David Gutterman: The Word for Nothing Means Everything

Charles Krauthammer: Kerry's folly, Chapter 3

Amy Peterson: A life of love: How to build lasting relationships with your children

John Ericson: Older Women: Save Your Heart, Prevent Stroke Don't Drink Diet

John Ericson: Why 50 million Americans will still have spring allergies after taking meds

Cameron Huddleston: Best and Worst Buys of April 2014

Stacy Rapacon: Great Mutual Funds for Young Investors

Sarah Boesveld: Teacher keeps promise to mail thousands of former students letters written by their past selves

The Kosher Gourmet by Sharon Thompson Anyone can make a salad, you say. But can they make a great salad? (SECRETS, TESTED TECHNIQUES + 4 RECIPES, INCLUDING DRESSINGS)

April 2, 2014

Paul Greenberg: Death and joy in the spring

Dan Barry: Should South Carolina Jews be forced to maintain this chimney built by Germans serving the Nazis?

Mayra Bitsko: Save me! An alien took over my child's personality

Frank Clayton: Get happy: 20 scientifically proven happiness activities

Susan Scutti: It's Genetic! Obesity and the 'Carb Breakdown' Gene

Lecia Bushak: Why Hand Sanitizer May Actually Harm Your Health

Stacy Rapacon: Great Funds You Can Own for $500 or Less

Cameron Huddleston: 7 Ways to Save on Home Decor

The Kosher Gourmet by Steve Petusevsky Exploring ingredients as edible-stuffed containers (TWO RECIPES + TIPS & TECHINQUES)

Jewish World Review Sept. 21, 2005 / 17 Elul, 5765

No clear path to an estate trustee

By Jan L. Warner & Jan Collins

Printer Friendly Version
Email this article

http://www.JewishWorldReview.com | Q: My third husband and I have been together for 22 years. He has three grown children and five grandchildren from his first marriage.

I have one living child and two grandchildren. He and I both want our respective bloodlines to receive the bulk of the property we brought into the marriage, and that's where we have been having difficulties. When we married, we both owned homes; he sold his and moved into mine. We did not do a premarital agreement.

We use a joint checking account to pay the bills that we split equally. He owns all of his property in his name, and I own mine. If I die first, he wants to be able to live in my house without cost until he dies. I am not worried about our wills because we can just leave everything to our children and leave each other nothing.

However, we have had a lot of disagreements about what will happen if one of us becomes incompetent and can't handle business affairs anymore. He says he will sign a power of attorney to let me handle his money if I will do the same. I have refused, and he has been moping around saying I don't trust him.

We are both in our 70s, and I have not kept my finances separate for 22 years to see him let his children talk him into taking advantage of me if I am "out of it," and leaving my son and grandchildren out. We talked to a lawyer about how to keep control, but he could not come up with anything that suited me.

A: The law protects one spouse from simply being "left out" by the other without knowledgeable waivers signed by both after full financial disclosure. Without valid waivers, either of you can make a claim against the other's estate for a share.

While you and your husband can voluntarily relinquish your rights to each other's estate, there is still the question about his use of your house if you die before him. If you are going to authorize this, and if your will leaves him a life estate, he has the right to live there until he dies and, under the laws of some states, he could force the sale of the house by partition and get money for his incremental share.

A better approach may be to place your home in a trust at the time of your death that provides for your husband's occupancy so long as he pays the taxes, insurance and upkeep and does not remarry, co-habit with another woman or leave for more than 60 days. In this way, your trustee will have the opportunity to regain possession of the residence should your husband not comply with the contingencies. You and your husband could consider reciprocal wills, which can be a good method of ensuring your desires are followed.

Because no one can predict the future when it comes to either death or incapacity, durable powers of attorney (that is, powers of attorney that continue past the incapacity of the person who signs the same) generally provide that the appointed agent — called a proxy or attorney in fact — will have rather broad authority to be able to deal with unexpected financial events. However, giving broad authority can often carry with it the ability of the agent to abuse the authority. Therefore, there is a conflict between a person's desire to give sufficiently broad authority to the agent, on the one hand, and to control the acts of the proxy on the other.

Since you obviously feel uncomfortable (and we can't say that we blame you), you should consider either (a) appointing each other and creating lots of safeguards that, in the long run, may interfere with the activities that need to be accomplished, or (b) appointing a non-relative or corporate fiduciary as agent.

Either way, if you inject too many safeguards, your proxy may find it too difficult to act and quit. And, just as importantly, banks and other third parties may refuse to deal with your proxy because you have made the situation too difficult.

Custom-drafted durable powers of attorney come in all shapes and sizes, and there is one out there that will satisfy you. For example, you might consider using "springing durable powers of attorney," which do not become effective until you become incapacitated; however, after incapacity, many of the same problems can still exist. On the other hand, some people appoint two or more agents who can act only if all agree; however, if your agents can't agree, then no one can act — still another problem.

Or, you could give a third person, such as an accountant, the right to audit the actions of the agent and, if warranted, to revoke the power of attorney. You could also consider placing a transaction limit — say $10,000 — on activities without the proxy first getting permission from a third person to act. Or, you can split responsibilities among a number of proxies so no one proxy has all of the authority, another administrative nightmare.

All of potential solutions have drawbacks: What if the third person you choose as a monitor or auditor is unavailable, dies or becomes incompetent? What if the bank or the person who wants to buy the property is not satisfied with who has the authority? Since a proxy under a power of attorney is a fiduciary, most courts have the power to require accountings; however, if you leave these matters to the courts, then there is no real sense in having a power of attorney, since what you are doing is, in effect, using a guardianship or conservatorship that is handled through the court.

No matter how you cut it, unless you trust your agent, planning will be an expensive waste of time.

Every weekday JewishWorldReview.com publishes what many in in the media and Washington consider "must-reading". Sign up for the daily JWR update. It's free. Just click here.

JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.


© 2005, Jan Warner