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Power-Of-Attorney And Guardianship Are Not The Same, And This Matters During Probate


One of the most important decisions you make in estate planning is choosing someone to make legal and financial decisions on your behalf if you become too ill to make your own decisions.  A power-of-attorney is a document that authorizes someone else to sign documents to indicate your consent to financial transactions and legal agreements; the authorized person is called your attorney-in-fact, and it can be anyone you trust, including a family member, a friend, or your lawyer.  Guardianship is where the court appoints someone to be your legal guardian, such that the guardian’s consent is required for all formal decisions you make.  If the court appoints someone as your guardian, that person has as much control over and responsibility for your finances and other aspects of your life as parents have over their minor children.  Likewise, some guardians of adults with disabilities are family members, but others are professional guardians.  If a party in a probate case in which you are involved is being represented by a guardian or an attorney-in-fact, you need a Maryland probate lawyer.

Can Your Attorney-in-Fact Claim an Elective Share of Your Late Spouse’s Estate on Your Behalf?

According to Maryland law, a surviving spouse has the right to claim an elective share of the decedent spouse’s estate, even if the decedent left a will giving the spouse a meager inheritance or outright disinheriting him.  If the decedent has surviving children, the spouse’s elective share is one third, but if the decedent does not have children, it is one half.

Philip and Delores did not have children together, but they both had children from previous marriages.  In 2012, Philip signed a power-of-attorney appointing his nephew Dennis as his attorney-in fact.  Delores died in 2016, and her will stated that her son and daughter were to inherit her estate, but Philip could live in her condominium for the rest of his life; when he died, her children were to sell the condo and share the proceeds.  Dennis, acting on behalf of Philip as his attorney-in-fact, tried to claim an elective share of the estate for Philip.  The court did not grant him the elective share, because the only people who can claim a spousal elective share are the surviving spouse and a court-appointed guardian for the surviving spouse; an attorney-in-fact representing the surviving spouse does not meet the requirements.  Further complicating matters is the fact that Philip died while Delores’ estate was still in probate, leaving Dennis in the position of an attorney-in-fact claiming to represent the estate of a deceased person.  The appeals court affirmed the trial court’s decision to allow Dennis to claim the elective share on Philip’s behalf.

Let Us Help You Today

A Washington DC probate lawyer can help unfairly disinherited spouses claim their fair share of the marital wealth during the probate of the deceased spouse’s estate.  Simply being married to the decedent at the time of their death is the only reason you need.  Contact Tobin O’Connor Concino P.C. for help today.



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