Powers Of Attorney Vs. Successor Trustees - Does One Have More Power Than The Other

By: Michael Pancheri
Submitted: 2007-01-17 16:17:23
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Question: I am listed as the Successor trustee, my bother is listed as the Durable Power of Attorney for property management of my father's estate. Does one have more power than the other. Does the POA have the power to sell my dad's property or do I the successor? Thanks ahead of time - really confused. N.H.

Answer: Dear N.H. - Generally speaking, you can have as much power under a power of attorney as you can as a successor trustee. As a practical matter, however, the laws of most states are better defined with respect to trustee powers and financial institutions are more accustomed to dealing with trustees. So, that sort of gives the edge to trustees. If you're concerned about a specific type of power, you'd have to check the laws of your particular state.

Your question, though, is whether your brother has the power to sell your dad's property under his power of attorney or whether you have the power as successor trustee. It's not clear to me whether your dad is still living or not. Assuming that he is, then he's probably the sole trustee of his trust and you're just waiting in the wings until he steps aside. If that's the case, then you don't have any power to manage his property. If there is any property in your dad's trust, your dad would be the only person who could manage it since he is the sole trustee.

If your dad is still living, then your brother would have the power to manage his property right now, even though your dad is able to do it on his own. In most cases, however, the intent is that the power of attorney would be used only in the event the principal (i.e., your dad) is unable to attend to his own affairs.

The real issue here is who owns the property? If your dad owns the property, then your brother has the power to manage it under his power of attorney. If your dad's living trust owns the property, then the trustee has the power to manage it under the terms of the trust instrument. That would be your dad, if he is the trustee, or you, if you are the trustee.

If your dad is no longer living, then your brother's power of attorney would be null and void, and any property owned solely by your dad would become probate property. That property would then be managed by the executor under your dad's will or by a court-appointed administrator. The property in your dad's living trust would continue to be managed by you as the successor trustee.

That being said, I'm concerned that you and your brother have been placed in a very difficult position that will result in a major rift between you and your families. By your question, it's already apparent that a disagreement is brewing.

Unfortunately, this almost always happens when siblings are placed in different roles, as with you and your brother. It creates a natural conflict that cannot readily be avoided as long as you remain in different and conflicting roles.

It is for this reason that I always recommend that all siblings be appointed to each of these positions - at least to the extent possible. Yes, it becomes cumbersome if three or more siblings are appointed as attorneys-in-fact, or as successor trustees, or as executors under the will. And, yes, you may be able to exclude some siblings without hurting any feelings, if, for example, some are too young, or too old, or live too far away, or have certain physical or mental disabilities that prevent them from serving. The important point, however, is that none of them should be offended and no conflicts should be allowed to exist. If that can't be accomplished with the appointment of siblings, then an independent professional should be appointed to those positions. Its always better to have the siblings united against someone else rather than divided among themselves.

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