[pacific nw]

My father-in-law, now 85, never expected his second wife to pass before he did. She passed away last month. She was hospitalized after a serious fall. He put their house on the market. It sold and closed. She died one week before it closed. It sold for much. Much more than he believed it would when they made out their wills 10 years ago.

His will states that she gets to stay in the house and then at her death, the proceeds from the sale of the house go to her estate. He thought this to be "fair" since his retirement account was so much larger than hers. They had separate wills. The wills split out what each brought into the marriage to go to their respective children upon the wife's death.

They have separate retirement accounts, each of which goes to their separate estates after she dies. (Presumably, he has already passed and she is living off the proceeds of the two retirement accounts. The principle amounts go to the respective heirs. His retirement account is substantially larger than hers.

He has 3 kids form a previous marriage. She has two kids from a previous marriage. They have no children together. All children are now in their 40's and 50's.

He now is in shock at her death and is finding it difficult to function, We need to use some of the money from the sale of the house to hire assistance for him.

1) Do all of the proceeds from the sale of the house go to him since she pre-deceased him?
I presume they had right of survivorship.

2) After her retirement account is liquidated and disbursed to her heirs (her two natural children) do all remaining monies (ie the proceeds from the sale of the house) go to the surviving spouse's account with full access and ability to spend?

[CaptainForest]

1)
Assuming they had right of survivorship….

The house became 100% his after her death so therefore he may use the proceeds from the sale however he wishes to.

However, one question I have is that if there was right of survivorship, why bother saying that all proceeds go to her after her death when they would automatically do so? It could be just a precaution, but you should look into it to make sure there was right of survivorship.

2)
If the house was just owned by the two of them with right of survivorship, then upon her death, the house became 100% his and her children have no claim to it.

[pacific nw]

1)
Assuming they had right of survivorship….

The house became 100% his after her death so therefore he may use the proceeds from the sale however he wishes to.

However, one question I have is that if there was right of survivorship, why bother saying that all proceeds go to her after her death when they would automatically do so? It could be just a precaution, but you should look into it to make sure there was right of survivorship.

2)
If the house was just owned by the two of them with right of survivorship, then upon her death, the house became 100% his and her children have no claim to it.

That is quite helpful. Thank you.

I see your Maple Leafs emblem, (You are probably familiar with Canadian probate) so I want to give you a little more detail.

My father-in-law lives in Vancouver, (his daughter, (my wife) and I live in the States).

My father-in-law, some time ago, signed a Power of Attorney stating that his now deceased wife's son-in-law, who is a practising attorney in B.C. (corporate not probate) would have POA if needed. It has not been filed. If said person files the POA, does he then determine the distribution of assets? My father-in-law has told the family he does NOT want the POA filed yet. Our concern is that if my father-in-law becomes or is determined at some point to be "incompetent", then said son-in-law may take things into his own hands, file the POA and follow the deceased wife's will regardless of the needs (and possible rights) of my father-in-law. Yes, there is that reasonable concern in this situation.

I have recommended to my wife's brother that he explore getting the POA into his name. My brother-in-law has the confidence of my father-in-law's bank which is allowing my brother-in-law to set up automatic payments for housing, hydro, etc but nothing is in
Writing.

My father-in-law has become somewhat untrusting. He thinks he has more money going out each month than coming in. His RIF and other retirement income give him over $2500 a month extra beyond his expenses. He never planned for things to turn out this way, (his wife passing before himself) so he can't believe he has so much money.

He has over $35,000 in his checking account and, well, you know how much houses sell for in Vancouver. He has that sitting in another account. We have tried to convince him that he has plenty of money and not to worry. He is still going through the grieving process and is sometimes depressed. Yes, the doctor has him on anti-depressants. He is still sharp as a tack on most things. He is physically quite healthy.


Do you know if a NEW Power of Attorney would be valid or would the old un-filed POA have to be revoked first?

Is a new Power of Attorney valid under these conditions?

I appreciate your insight and your taking the time

[CaptainForest]

If you don't trust the deceased wife's son-in law (and I wouldn't either), POA has to be changed immediately.

Have you father in law change the POA to someone you can all trust, perhaps one of his children.

When you file a POA, there will be something in it that automatically revokes all former POA's made in the past. However, since this copy was signed, but not filed, I would talk specifically with an attorney over that. The attorney might advise for some more wording in the new POA addressing specifically the POA that is signed but not yet filed.