Can a will be changed if the person has become incompetent?
August 30, 2021 3:17 PM Subscribe
Can the will of a person who has become incompetent still be modified, or is all opportunity lost as soon as that person loses their faculties?
The person with the will is my mother, the executor of the will and my mother's Attorney-in-Fact (the person who holds Power of Attorney for my mother) is my sister.
Before my mother became incompetent, we asked her to specify in her will that any inheritance left to our invalid sibling be placed in a specific type of trust.
After she became incompetent, my sister read the will and realized that my mother didn't understand and specified a generic trust, which will not accomplish the goals it was intended for. If my mother dies, that generic trust will prevent our invalid sibling from being able to take full advantage of it.
My mother now has Alzheimer's. She has not yet been declared incompetent, but I don't think an attorney would consider her competent enough to change her will.
Before she is declared incompetent, and even after she is, is there any way my sister (executor and POA) can work with my mother's attorney and get the will corrected?
The person with the will is my mother, the executor of the will and my mother's Attorney-in-Fact (the person who holds Power of Attorney for my mother) is my sister.
Before my mother became incompetent, we asked her to specify in her will that any inheritance left to our invalid sibling be placed in a specific type of trust.
After she became incompetent, my sister read the will and realized that my mother didn't understand and specified a generic trust, which will not accomplish the goals it was intended for. If my mother dies, that generic trust will prevent our invalid sibling from being able to take full advantage of it.
My mother now has Alzheimer's. She has not yet been declared incompetent, but I don't think an attorney would consider her competent enough to change her will.
Before she is declared incompetent, and even after she is, is there any way my sister (executor and POA) can work with my mother's attorney and get the will corrected?
You should discuss this with an attorney who is licensed in Missouri and who specializes in trusts and estates.
You might be able to fix this now, but you might also be able to fix it after your mother passes away, while the will is in probate and the trust is being created. The executor might have the flexibility to create the correct kind of trust, if there are clear disadvantages of the wrong kind. Again, this is something to discuss with a lawyer who understands this area of law backwards and forwards. You don't want to make a mistake here because, as it appears you know, there's a risk that your disabled sibling will lose government benefits if she becomes the beneficiary of the wrong kind of trust.
posted by Winnie the Proust at 3:28 PM on August 30, 2021 [7 favorites]
You might be able to fix this now, but you might also be able to fix it after your mother passes away, while the will is in probate and the trust is being created. The executor might have the flexibility to create the correct kind of trust, if there are clear disadvantages of the wrong kind. Again, this is something to discuss with a lawyer who understands this area of law backwards and forwards. You don't want to make a mistake here because, as it appears you know, there's a risk that your disabled sibling will lose government benefits if she becomes the beneficiary of the wrong kind of trust.
posted by Winnie the Proust at 3:28 PM on August 30, 2021 [7 favorites]
Response by poster: Sigh. Worth noting. Aside from the loss of government aid, my invalid sibling has massive debt to the IRS and has been subject to seizure from her bank account. Do you happen to know, is a testamentary trust subject to seizure as well? Or is that protected?
posted by Cardinal Fang! at 3:52 PM on August 30, 2021
posted by Cardinal Fang! at 3:52 PM on August 30, 2021
I am not a lawyer. I might have had a similar experience. In this story, everyone who would have had standing to challenge a will agreed that the change should be made. The will was changed, and on a good day the relative with Alzheimer's signed the new will in the presence of two witnesses. After she passed, no one challenged the new will, it went through probate with no problems, and the trust was implemented as desired. This is not legal advice.
posted by hworth at 7:07 PM on August 30, 2021 [11 favorites]
posted by hworth at 7:07 PM on August 30, 2021 [11 favorites]
Sounds like your invalid sibling needs to find a tax attorney to discuss the content of the trust now, while some changes may still be possible.
posted by kschang at 7:34 PM on August 30, 2021
posted by kschang at 7:34 PM on August 30, 2021
Clearly you require advice specific to your jurisdiction to ensure your goals wrt to the invalid sibling can be achieved.
It is worth noting though that in most jurisdictions you don’t need to involve a lawyer to draw up, sign or change a will. If a person has multiple wills typically the most recent one prevails. And in any case, somebody would have to challenge the validity of the will in the first place.
So,I’d seek guidance on your goals, the need to change the will in the first place and what form a change would require and consider your family dynamics. But changing her will may not be as difficult as you imagine.
posted by koahiatamadl at 5:44 AM on August 31, 2021
It is worth noting though that in most jurisdictions you don’t need to involve a lawyer to draw up, sign or change a will. If a person has multiple wills typically the most recent one prevails. And in any case, somebody would have to challenge the validity of the will in the first place.
So,I’d seek guidance on your goals, the need to change the will in the first place and what form a change would require and consider your family dynamics. But changing her will may not be as difficult as you imagine.
posted by koahiatamadl at 5:44 AM on August 31, 2021
I may be aware of a situation identical to hworth’s.
posted by HotToddy at 11:29 AM on August 31, 2021
posted by HotToddy at 11:29 AM on August 31, 2021
It is worth noting though that in most jurisdictions you don’t need to involve a lawyer to draw up, sign or change a will. If a person has multiple wills typically the most recent one prevails.
It is very important that a will be signed by the person whose will it is, dated, and signed by at lease two witnesses, neither of whom are beneficiaries.
From an article on the MSN site: "The laws regarding the validity of a will vary from state to state, but handwritten notes are unlikely to be upheld as valid in court. In most states, wills must be signed and dated by the decedent ... and signed by at least two witnesses."
posted by Dolley at 3:37 PM on August 31, 2021
It is very important that a will be signed by the person whose will it is, dated, and signed by at lease two witnesses, neither of whom are beneficiaries.
From an article on the MSN site: "The laws regarding the validity of a will vary from state to state, but handwritten notes are unlikely to be upheld as valid in court. In most states, wills must be signed and dated by the decedent ... and signed by at least two witnesses."
posted by Dolley at 3:37 PM on August 31, 2021
>> Sounds like your invalid sibling needs to find a tax attorney
Not a tax attorney. An attorney who specializing in trusts and estates. And you should really find an attorney with experience in special needs trusts.
An attorney with the correct expertise will be able to tell you whether you should (a) try to adjust the will now, with the agreement of all interested parties, as described by hworth above, or (b) correct the error when the trust is created, also with the agreement of all interested parties. The key part, in either scenario, is "with the agreement of all interested parties". If you don't have the agreement of everyone, then it could be very hard to fix the problem. But again, an attorney with the right expertise will have the real answer.
posted by Winnie the Proust at 7:43 PM on August 31, 2021
Not a tax attorney. An attorney who specializing in trusts and estates. And you should really find an attorney with experience in special needs trusts.
An attorney with the correct expertise will be able to tell you whether you should (a) try to adjust the will now, with the agreement of all interested parties, as described by hworth above, or (b) correct the error when the trust is created, also with the agreement of all interested parties. The key part, in either scenario, is "with the agreement of all interested parties". If you don't have the agreement of everyone, then it could be very hard to fix the problem. But again, an attorney with the right expertise will have the real answer.
posted by Winnie the Proust at 7:43 PM on August 31, 2021
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posted by Cardinal Fang! at 3:20 PM on August 30, 2021