Little questions, important answers

Dear Jonathan: What does it mean to have died intestate?

Jonathan says: This simply means that a person died without making a last will and testament. If a person makes a last will and testament, then they will be deemed as having died testate.

Dear Jonathan: What happens if the person appointed as agent under a power of attorney refuses to act and the person who made out the power of attorney now has dementia?

Jonathan says: If there is no alternate agent named, the power of attorney will be ineffective and cannot be used. Consequently, someone will have to petition the probate court in the county where the individual with dementia lives for the purpose of having a guardian and conservator appointed on his or her behalf. This is why it is always a good idea to have one or two alternates named to act in the event the original named agent is unable to act for some reason.

Dear Jonathan: Can I name both of my children as my patient advocates under my health care power of attorney?

Jonathan says: Generally speaking, yes, unless the state in which you live prohibits the naming of co-patient advocates. Even if co-patient advocates are allowed, there is a disadvantage to naming co-patient advocates in that they both must agree on everything they do. If they cannot agree on a course of action, then until they do, they cannot make a decision on your behalf. Obviously, this can present a problem if a decision needs to be made right away. I think the better course of action is to name one of your children as the sole patient advocate and the other one as the alternate patient advocate.

Good luck.

Dear Jonathan: My mother died approximately one month ago and despite my diligent efforts, I have yet to locate her last will and testament. Isn’t the estate now subject to probate? What do I do?

Jonathan says: Whether your mother left a last will and testament or not has nothing to do whether a probate is required of her estate. Probate will be required if, at the time of your mother’s death, she owned any assets in her name alone. If that is the case, then a probate estate must be opened up on her behalf even if she had a last will and testament. If, on the other hand, she did not have any assets titled in her name alone at death, then no probate will be required.

If, based on the facts present in your mother’s case, it is clear that her estate needs to be probated, I recommend that you meet with an estate planning/probate attorney in the state where your mother lived who can review all of this with you in further detail and help guide you through the process.

Good luck.

Jonathan J. David is a shareholder in the law firm of Foster, Swift, Collins & Smith, P.C., in Grand Rapids, Michigan.

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