I'm a little confused, my understanding of an executor is that he/she is appointed to handle the estate of a DECEASED person. Neither is deceased so is your SIL truly an executor of the estate?

Executor is probably the wrong word, tells you how much I know, SIL handles all their "bank dealings" paying the bills and such.....What's the word i'm looking for?

Power of attorney. And no, the money is no ones except both of them, which should be used for their care since both are in a nursing home. It needs to go into an account so that the funds can be used.

Maybe you mean to say she is the Administrator or Guardian of their estate. (An estate is simply a description of someone's property - so you can have an estate and still be alive) Obviously, the wife is incompetent to handle her financial and personal affairs, and the husband is too elderly to deal with them also. Generally speaking in a situation like that, a person, usually a trusted relative will step in and take over the management of paying bills, selling property, etc. Court's also appoint attorneys and accountants to do the same thing.

Since they are not dead, and assuming their property is in their names and no one elses, everything they own is theirs and belongs to no one but them. Her job would be to protect their assets not distribute them to any relatives. Generally, if she sells the property and one or both are still alive, it would best to put the money from the sale into a trust for them.

I strongly suggest she hire an attorney that is familiar with trusts and the administration of estates for the elderly. For her sake, she should put a buffer between herself and relatives that could later cause her a problem legally and financially.

She needs the POWER OF ATTORNEY for her father to handle all of this stuff if he is unable. I would definitely think this is worth talking to a lawyer! Sounds like they are still married (I would hope the wife has someone with power of attorney if she has severe dementia) so it would help to know if the sale of the condo will go into a joint estate to be divided upon death or how the proceeds may be split to provide for care. Tough questions. Definitely seek an attorney!

That's it, She does have "Power of Attorney" that's the word I was looking for.
A trust sounds like a good idea.
She's so frazzeled, she just wants to get this mess over with....

Do your research (well, have her do it, you can help)

Be sure to get a good attorney to do the trust or whatever he suggests. The attorney that did my dad's will / trust did it in such a way that he took the hard way when it could have been easier. It was not the right attorney for us, wish my dad would have listened to me and found someone else.

She needs to tell these relatives to back away. While I understand they wanted stuff that belonged to her, if the condo was in his name only, they may not be able to get any of it. This is where the attorney comes in. He may have to split proceeds from the sale evenly or some other way, but the relatives may never see a dime from this. If there are any items left worth selling, this should also be done with the proceeds going into the trust. If she donates it to charity, be sure to get a receipt.

If your friend wants to vent to someone they don't know, give her my email addy. I've been through this and may be able to help her if she'd like. I've learned a lot in the last few months; from mistakes that were made on my dad's stuff. I also know how stressful it is to be dealing with people out for one thing.

btw, having someone from her (the wife) family look after her well being may be a good idea but speak to the attorney 1st.

I'll bet she's frazzeled! It's very tough even in the best of situations! If she doesn't have her own will, power of attorneys, living wills, she should get them. They are worth the trip to the lawyer's office. Having them will save the family time and headaches!

We had a family member pass away unexpectedly (car accident) and she left no will. Even though her children are grown, you'd be surprised at the amount of craziness that ensues from the lack of a will. Fortunately, my dad was able to step in and help out and make sure the remaining family were doing the right things to sort through the situation.

Aren't people something?

I think your SIL needs legal guidance.

Assisted living or nursing home care often goes on for many years, & the estate gets used up.

When all the assets are depleted, somebody (your SIL) will have to apply, on the elderly person's behalf, for Medicaid/Medicare/whatever (I'm vague on programs), & getting the benefits will hinge on the last several years' worth of financial dealings having been done in accordance with the rules.

Since my aunt, my mother's beloved younger sister, handled my mother's affairs, I'm not up on all of it, but I do know that, for instance:

1.
You can't deed your home to your child or sell it to the child for a token amount of money & immediately apply for benefits.
I *think* it has to have been at least 5 years before you can get benefits.

If the home was sold "at arm's length" (for a reasonable market value, probably to a buyer not related to the owner), then the proceeds of sale have to have been used for the seller's care.

2.
same thing with more liquid assets:
You can't sign over your CDs, stock, & bank accounts to your child & then say you're broke.

3.
You can keep only certain personal property.

I think it's something like one cemetary plot & one wedding ring & maybe $1000 or $2000 in the bank.

& the rules are different for married people & for unmarried ones.

I realize that SIL is frazzled, but this is important work that requires painstaking attention to detail.

Please encourage her to get some guidance.

& she can ask the lawyer, but I think she needs to make an inventory of everything the wife's family took (now, while it's fresh in her mind)& send the takers a copy of it, registered mail, return receipt requested.

If they've absconded with property that could be converted into cash that could be used for the wife's care, they may need to pay for it or bring it back...

or they may say your SIL *gave* it to them & *she* needs to pay for it.

I wish her the best.

...forgot to say that your SIL needs to be very careful about what is community property & what is his separate property & how she handles it all.

Even though the marriage may be "over" in terms of husband & wife living under the same roof, they are indeed husband & wife, & spouses do have property rights.

While I sympathize with SIL wanting her dad to be comfortable, she absolutely cannot afford to try anything improper or marginal.

Her dad's wife's family will jump on her like a duck on a junebug...& the law will deem that they're in the right.

&, really, I don't know that having more money makes any difference once you have to have care:

When my mother's assets were used up, my aunt applied for benefits, & my mother stayed in the exact same room & got the exact same care she'd gotten when she was paying for it out of her own pocket.

momcat2000 your SIL needs a good elder-care attorney. Not all laws are federal, state laws come into play too. Do not let her delay, have her find a good attorney well versed in elder-care.

I don't know that having more money makes any difference once you have to have care

It absolutely can make a difference in the quality of care you would receive. If you have the money to pay for a private, non-Medicare assisted living center, you will have a much more pleasant place to live than if you are in a Medicare facility.

My mom was in an assisted living center for several years with Alzheimers, and it cost *a lot* but fortunately she had enough money once we sold her house and emptied her bank accounts. We used what would have been our inheritance, but it was worth it, to have her in a comfortable, well-maintained place with 24-hour care. This facility did not accept money from Medicare at all - had to be paid out of pocket, but was worth it, IMO.

I suppose it's possible that some Medicare facilities are nice, but the ones we looked at where my mom lived were several steps below the private ones.

Here, here. Have her call her State Bar Association and get the names of a couple of Elder Law Attorneys. It also may be helpful to see if the Husband had an attorney he was working with, like on a Will or Trust. Many times in situations as you describe there is already an attorney who knows what's going on and can help.

Make sure she runs, not walks to a lawyer.

A power of attorney will not protect her if the Wife's family is unhappy.

Sylvia, excellent advice about medicare / medicade; she should look into it for both if they are of age.

Listing what was taken is very important, not something I'd thought about.

There is a 3 year look back into assets once someone goes on assistance. My g-mom lived 10 years (1 day before turning 90) after my Mom was no longer able to care for her in her (Moms) home. It ate up the entire estate worth over 500k. Which was mostly cash since my g-parents saved their entire lives hoping to leave their kids something when they passed. Go figure.
I agree, your SIL needs to see an attorney but it might be to late so save anything at all from the estate.
KAT

The original poster wrote something about the "SIL charging a large amount for being executor."

Does the executor of a will get to charge for his/her efforts or dip into the inheritance? No wonder everyone fights over inheritances.

Well, I hadn't thought of it, but my mother lived in a small town where there were only 2 nursing homes, both owned by the same people.

Families in bigger towns should compare the facilities & programs before choosing.

>>Does the executor of a will get to charge for his/her efforts or dip into the inheritance? One thing about handling estates of anyone, living or dead, is that you learn very quickly NOT to mix up legal terms!

In most states the executor of a will - which means the person is deceased - is entitled to a fee.

A person with power of attorney does not receive any fee.

If someone has a trust, only if they have inserted language entitling the trustee to be paid a fee (assuming it's an individual and not a court-appointed professional trustee), will the trustee be able to be paid a fee. Otherwise, it's merely reimbursement for expenses, the same as someone with power of attorney.

This is one reason why I don't happen to believe that revocable trusts (what most know as 'living trusts') are necessarily a great idea for people, unless your attorney carefully explains the disadvantages to them, rather than just snowing people with the specific advantages they can offer.

In this case, if I understand the OP correctly, as the person with power of attorney, your sister may have already placed herself into liability for allowing anyone to remove personal property they were not entitled to receive. She needs to document what was taken and who took it, then send registered letters demanding either their return or reimbursement for the estimated value. There is no "splitting of the estate" because nobody's died yet. She is legally responsible (liable) for keeping the estate(s) intact to pay for the expenses of the husband and wife.

Please get a good elder lawyer. Do this through personal referrals and not the phone book.

From my limited point of view I know you can't just sell and divvy up the estates of living and married people. Why would the wife's relatives be lining up for money when the wills of each, the ownership of assets in the estate, who dies first, and the laws of the state determine all of this?

Yes, it's time to get an attorney. They do this everyday and having an attorney will make it much easier on your SIL. Your SIL has power of attorney to pay the attorney fees (she does not personally have to pay the attorney fees).

Have her make a list with the relatives names and addresses. Let the lawyer send them a letter telling them:
1) anything removed from the home must be returned by this date or they need to pay $XXX for the value of the item (include a specific list of items if you know what items are missing).
2) there is no money to distribute. Any money from the sale of the home and liquidation of personal property and financial accounts will go into a trust for their care. If any money should remain after they both pass, all the medical bills, funeral bills, attorney bills, etc are paid, and once the estate it probated (usually 9mths to 2 yrs) then the remainder would be distributed to heirs as per the instructions of the will.
3) they should contact the attorney if they have questions. Also include that the attorney is paid for by the estate (let them know their wasting their own inheritance).
4) If she has copies of the wills take them along for the attorney to review.

Change the locks on the condo.

I would also talk with the father and the attorney now to see about making and paying for all the funeral arrangements. Should be planned as 2 separate funerals but with the same amenities. If her family decides they want something different than what is planned they can pay to change it when the time comes (no doubt they'll shut-up if they have to pay for it).

It may not be legal but I think many people remove items when cleaning out a house of a parent or relative who has moved into a nursing home. My cousin, brother and I had to clean out our aunt's home, filled with over 30 years of accumulated things, last year. She had a coin collection, lots of silver, some antique furniture plus a great deal of junk. In this case we agreed on the property division. In the OP's case it sounds like the SIL may not know exactly what was taken.

After my aunt died, my cousin who was the executor had to give an accounting to the attorney. We (relatives) agreed that the things didn't have any value when in reality they must have been worth at least $10,000. We were happy with the division of property so why add more money to the estate so that the attorney could get more since he was receiving 5% of the total value.

>>She had a coin collection, lots of silver, some antique furniture plus a great deal of junk. In this case we agreed on the property division. Fortunately for everyone, you all agreed. Believe me, it would not have been a pleasant scenario if one of the claimants decided afterwards that others got more than s/he did, and sued. In such a case the trustee or executor is legally liable and risks being removed by the court. Especially in the OP's case where no one has died yet - such actions are legally considered THEFT, plain and simple.

"We were happy with the division of property"

but it wasn't your property to divide;
the woman wasn't dead, the property/assets were hers!

what if your aunt had needed that $10,000 for nursing or hospice care?

Whether such looting is "common" or not I don't know, probably is, but taking something the *owner* hasn't given to you is theft.

but I doubt that any of the "heirs" would sue any of the others because he/she didn't get enough, since that would entail admitting that he/she had gotten *something*.
which, as jkom says, is theft.

Your SIL needs a good Elder Law attorney ASAP. The funds to pay for such advice can come from the couple's assets. This situation is much more complicated than you might think. The first question that needs to be answered is who's on title to the condo. Secondly, who has POA for the wife? Does your SIL have knowledge of any other documents pursuant to the situation such as living trusts, medical powers of attorney etc? Getting the proper legal help will go a long way towards alleviating your SIL's aggravation. Frankly, she's taken on a big task and deserves the protection a good attorney can provide.

I hope this story reminds all of us to set up a solid legal structure, not just for our demise, but also for our incapacitation. Cost me a few bucks but I sure sleep better.

Lawyer up.
The assets of the folks are still there assets and should be used to support them.
Not given away to ANYONE.
There are a lot of loopholes in the laws, adn dipersing personal effects by sopmeone wioth a POA when soneone enters care is relatively common.
A will has no bearing here, but if available may provide guidance.
Some things are very valuable, others are not.
If grandma left her bedroom set in the will to someone and it will not generate a large cash value for her support it may be possible to deliver it to the heir in the will.

These things can quickly turn into a mess if there are factions looking for $$.
Anything of significant value will need to be used to pay for care.

I didn't read all the replies, but happened to catch "lookback period" as I was scanning.

The lookback period is now 5 years - not the 3 years it was previously. As both parties are still alive, disbursing assets now is not wise. Any assets would be pooled for the care of the elderly couple - not an early inheritance for others.

SIL is power of attorney for her father, the son is POT for his mother. Both father and his wife are on the deed to the condo.

Momcat, if you go to Google, advanced search, you would choose the search terms estate planning with your state after estate planning, like I did for estate planning NJ. It gives you a lot of information to start the search. Also on that page is a link to other states, look in the middle column under Regional Resources.

What she may need is a special needs trust, so have her look into that and the different types to get familiar with them before her 1st meeting so she won't feel so lost. She should also start making lists of what she knows about each of them, any history of what each came into the marriage with is a good place to start.

She will also need to find out banking information, especially if the wife had an account with her son as a joint owner or power of attorney. It's possible that she did and the son is managing it. Since she's been sick for a lot of the marriage, it's my guess the son took care of this years ago to make sure that if something happened to his mom, he would already have access to it.

I just reread your 1st few lines, and wonder if what you said would be taken into consideration:

My SIL father remarried after being widowed. They were both in their 70's and he wouldn't let her drop a dime of her own money after they were married.
They have been married 10 years now but for the last 7 years she has been ill, so he has paid for 24 hour home nursing for his wife so they can continue to live in the new condo she just had to have.
My SIL says that he has spent most of his savings on this home care and worries if there will be funds to take care of him if need be.

Both were in their 70's when they married, so they both most likely had their own stuff... Did they both have a house that they sold? Does she know who contributed what to the condo when they bought it? From what was written, it sounds like the husband used his money from the sale of his house to buy the condo, and used just about all of his income & savings to care for the wife. I'm not sure if I am reading this right, but is the SIL looking to have the wife's family take over all of the wife's care and not lay claim to any money from the condo as she wants to use the funds for her father's care and not the wifes? I can see how she would be nervous about not having enough money to care for her father, but the wife would be well cared for since the father paid for everything, which could have allowed the wife to stash a lot of money.

It may not be legal but I think many people remove items when cleaning out a house of a parent or relative who has moved into a nursing home. My cousin, brother and I had to clean out our aunt's home, filled with over 30 years of accumulated things, last year. She had a coin collection, lots of silver, some antique furniture plus a great deal of junk. In this case we agreed on the property division. In the OP's case it sounds like the SIL may not know exactly what was taken.

After my aunt died, my cousin who was the executor had to give an accounting to the attorney. We (relatives) agreed that the things didn't have any value when in reality they must have been worth at least $10,000. We were happy with the division of property so why add more money to the estate so that the attorney could get more since he was receiving 5% of the total value.

In this case, it sounds like the OP's SIL may be looking for ways to recoup some of the money that her father has spent during these years. I'm reading that she is trying to find more money for her dad and when the relatives took the stuff, things happened so fast, she never thought to not let them just take stuff. She may need to use the taken items as leverage, I don't know. Surely if they were the wifes before the marriage, if they were getting a divorce, most couples walk away with what they brought in. In this case, since both parents need care, it may be a different story and the items may have a value.

If someone has a trust, only if they have inserted language entitling the trustee to be paid a fee (assuming it's an individual and not a court-appointed professional trustee), will the trustee be able to be paid a fee. Otherwise, it's merely reimbursement for expenses, the same as someone with power of attorney.

This is one reason why I don't happen to believe that revocable trusts (what most know as 'living trusts') are necessarily a great idea for people, unless your attorney carefully explains the disadvantages to them, rather than just snowing people with the specific advantages they can offer.

My dad had a revocable trust. I've had about 6 attorneys read it, each one said there was no need to even use this. There were other ways to protect the assets without getting so involved.

I do not recommend anyone to go with the 1st attorney they interview, but to speak to a few to find out the different ways that this could be done to make sure the right way is picked. If I knew then what I know now, this is what I would have insisted my dad do, instead of going with the 1st person. What she does now will have an effect on everything until their estates are settled. If there is anything left over, you want to make sure it goes to the person the deceased wanted it to go to.

Regarding my previous post about my aunt. I should have clarified things. We three people were her only heirs and her final estate was divided three ways as provided for in her will. She was lucid and told us to take what we wanted from her house because she knew she wasn't going to be able to live at home again. She had fallen and was hospitalized when we cleaned out the house. She had been gifting personal family heirloom type items for many years at Christmas, birthdays, etc. We were also cleaning the house out because it needed to be renovated and the contractor said he wouldn't work on it unless it was empty so we had to remove everything.

I made my post because I'm sure that many children remove items from their parents homes without paying for them when they have to go into a nursing home. I fully understand that disagreements can arise over things like this and in the OP's case there seems to be two family sides that don't necessarily get along. A lawyer is definitely needed in this situation.

So, there's a major asset (the condo) held jointly by a married couple each with different powers of attorney. Your SIL, sadly, is not entitled to separate compensation. Any "under the table" dealings with the REA would likely constitute fraud and place your well-intentioned SIL in a terrible position. Won't the son have to sign any/all sales-related contracts on behalf of his mother? So, he'll be aware of the sales details. In my state, settlement papers must be signed by all property holders on title/deed. Are you concerned that half of the proceedings won't be used for his mother's care? Do you believe it's realistic for the wife to legally receive less than 50%?

As for structuring any kind of trust, is the father still of sound enough mind to understand what needs to be done and provide guidance? Is he still mentally capable of understanding and signing contracts such as trusts?

I ask because, although I had my mother's POA for years and exercised it on her behalf when she was no longer physically able, she was mentally able to comprehend and make other decisions about her life...she devised a new living trust during this period, told the attorney what she wanted, and signed the documents herself. Is that a possibility for the father?

How about his wife's relatives return the contents or else...........what?

Regarding the question of compensation or fees for an executor -- yes, an executor can charge or receive a fee, but if the executor is also an heir, it usually makes more sense to waive it. Fees paid would be considered taxable income, while most money inherited from an estate passes tax free. By forgoing compensation for the work, the estate is larger and the executor/beneficiary pays no taxes on virtually the same amount of money he/she would have earned as executor.

Was the wife's money kept in a separate acocunt all these years? If so, dad may be out of luck in using any of that money for his own care. Why he would have bankrupted himself for his wife's healthcare is beyond me; obviously, he's getting older and may (turns out, does) need care himself. If not, then SIL needs to start tapping the 'wife's share' of the joint account for her father's bills.

Elder law atty. Right away.