Originally Posted by kkwheat
My father passed away recently. My mother has survived him but she is incapacitated. I am the executor of their estate/trust. It is a sizable estate and I would like to gift funds to my brothers and their families. My father appointed my mother as his power of attorney and never updated it. Can I gift being the executor while my mom is alive but incapacitated? I hope this has been explained clearly. As the executor can I gift to myself and my family?
Understand I am no expert but have issued surety bonds for executors, guardians, conservators of estates and have a limited working knowledge of how things work legally but I am not an attorney. First let me start by asking a few questions raised in the intial question and in the one reponse to the one first answer. You said you were the "executor of their estate/trust". Normally the man and the woman each have a will and there is an excutor appointed in each of their wills. Also normally each spouse will desigate, in addition to an executor (person responsible for dispersing estate assets per the deceased's will), the other spouse as the sole heir of their estates. A trust, and I am not too clear on this, is written for a livng person and it's trustee is charged with carrying out the terms of the trust, ie. Taking care of trust assets and when the individual passes, I would think the trust assets have to be turned over to the heir, which is this case would be your mother. It appears from you statements that she is totally incapable mentally and physically of taking care of herself and her financial matters. Remember her will names and executor but keep in mind she not yet passed and her assets now include, I presume, those assets that belonged to your father if I assumed correctly that he willed all of his assets to her. I think you and your brothers should jointly petition the Probate Court in the County of her residence for one or maybe two of you to be the guardian or conservator of her estate citing her inability to handle these matters herself. Then, once the Court approves that, you can then only do what the Probate law allows, and that is preserve and manage her assets. Once she passes, then the wishes in her will take effect. Hope this helps and I recommend you seek the services of an attorney in this matter.