Skip to main content

Wills and power of attorney.

Beverly Hills, CA |

My 72 year old friend just moved in with me and my fiancee. He has taken out a life insurance policy for 100,000 and made me the beneficiary. Can his five grown child whom would not take him in after his being evicted, dispute my receiving the pay out of the policy at his time of death? We are also his care takers. Do we need to get a power of attorney to be safe? Or a executed will? How much for that?

+ Read More

Attorney answers 4

Best Answer
Posted

The children cannot contest a valid life insurance policy naming you as beneficiary. Usually the agent or broker writing the policy witnesses the signature. A power of attorney would do you no good and will in any event terminate upon death of your friend. He can writer a will but proceeds from a life policy pass outside the will unless the beneficiary is the decedent's estate.

Asker

Posted

He has no assets, just retirement check of 856.00 a month!

Posted

The life insurance policy with a beneficiary and is not controlled by the will or trust.
The power of attorney is void upon death but would be a good document to help your
friend at time of need.
A will or trust is a must for everyone.
The children might try to contest the insurance policy if the suspect incompetence or undue influence.

The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.

Asker

Posted

He is in his right and has no assets, his social worker recommended we get power of attorney, Why?

Craig Martin Scalise

Craig Martin Scalise

Posted

Power of attorney comes in two flavors: one for financial affairs (i.e. handle his banking accounts) and the other to make health care decisions (including end-of-life decisions; it is called an Advance Health Care Directive). The powers of attorney should be durable (stay in effect if he is ever incapacitated) and springing (only coming info effect upon incapacity). .IF you are helping him with his medical decisions, then he should consider completing a HIPAA Authorization and Waiver. This gives one person legal authority to obtain physical and mental information for another. He should consult ALONE with an attorney so he is properly advised. Take care.

Craig Martin Scalise

Craig Martin Scalise

Posted

Oh - to answer your question about the social worker suggesting getting a power of attorney - A social worker is not an attorney and does not know the law.

Posted

The Power of attorney would be useful during your friends incompetence but would not help with regard to the life insurance policy. Neither would a will or a trust. Those documents may help with your friends other assets, but not the life insurance policy. Life insurance is a contract so it does not fall under probate or trust administration. However, if your friends family make an allegation that the only reason your friend named you as beneficiary under the life insurance policy is because you unduly influenced him then they could challenge you. There is a presumption in the law that a gift to a caregiver is because of undue influence. I would recommend you have your friend see an attorney, without you. Have your friend take a cab, or arrange for the attorney to come to your home when you are not there. If the attorney is a good estate planning or better, and elder law attorney then he will understand the issues and will prepare something often referred to as a certificate of independent review. This will be valuable if your ever questioned latter.

Every situation is different, it is important to discuss your legal issue with a knowledgeable attorney in your jurisdiction. To schedule an appointment with me please contact me at 800 220-4205 or www.MartyBurbankLaw.com

Asker

Posted

huh?

Herb Fox

Herb Fox

Posted

The question is not "whether" the children could dispute the life insurance policy (of course they can). The better question is whether they might succeed. To protect yourselves, your friend should consult with a lawyer of his own choice who can attest to his competence if the insurance policy (or anything else - including a Power of Attorney) is challenged later.

James P. Frederick

James P. Frederick

Posted

Well said.

Christine James

Christine James

Posted

Mr Burbank has provided a complete and useful answer

Posted

Insurance is a contract; as long as your friend was decisional when he took out the policy generally it can't be contested, and normally passes outside of the decedent's estate except possible for estate tax purposes if he retained ownership of it during his lifetime and there is cash value. So a POA and/or will really isn't the answer. If anything, your friend may want to consult with an attorney about the possibility of an insurance "trust" so that if he becomes unable to fund the premiums there is a "reserve" or trust fund set up to do so, so that the policy doesn't lapse. But without knowing much more about the kind of insurance it is, it is impossible to really be of help.

Asker

Posted

life insurance of 100,000.

Stephen Samuel Messutta

Stephen Samuel Messutta

Posted

That is the death benefit not the type: term, universal, annuity...

Asker

Posted

Whats the diffrence in thd three?

Stephen Samuel Messutta

Stephen Samuel Messutta

Posted

A lot. Too much to explain in this forum. You can research them yourself or talk to an insurance agent.