Elder Law - Len and Rosie


Dad mum on estate plan

Dear Len & Rosie,

My father is 90 years old, divorced, and lives in a retirement center. My sister and I are his only children. He has been reluctant to tell us of his plans for his final days here on earth. I know that he has a paid up insurance policy, and I have the policy number. When I called the insurance company in San Ramon, they refused to give me any information. My sister and I do not have the means to bury him without some financial assistance, and he will have some expenses that will need to be paid. What can we do in the event he passes away?

- Lynetta

Dear Lynetta,

The insurance company won’t talk to you for the simple reason it owes your father a duty of confidentiality. It just can’t spill the beans about his life insurance when anyone calls. Just because you’re his daughter doesn’t mean you have the legal authority to access your father’s private financial information and legal documents. You could do this if your father gives you a power of attorney, or if he becomes incapacitated and the court appoints you as his conservator.

Unless and until that happens, it’s up to your father to decide whether or not he should clue you in about his finances and his estate planning documents. What you should do is to talk to your father about this and try to convince him that he should trust you and allow you to help him. You should be careful about this. It’s apparent that your father is a very private man. He could disinherit you if he decides that you’re too “pushy.” Make sure that he understands that you will respect his wishes no matter what they are. You and your sister should act together on this, so your father won’t think that you’re trying to get everything for yourself.

If your father refuses to let you know what his plans are, there’s nothing you can do about it unless he loses mental capacity and is put into a conservatorship.

You and your sister may have to pick up the pieces after your father’s death. Finding his financial information and estate planning documents could turn into a morbid scavenger hunt where you have to lift up his mattress to look for his safe deposit box key. Tell your father that if he won’t clue you in he should at least be organized enough to make it easier for those who will have to manage his estate after his death.

The only consultation we can give you is that you don’t have to do it. You and your sister will not be liable for your father’s debts after his death, and you do not have to manage things if you do not want the responsibility, even if you are named as executor or trustee in his will or trust. You can, however, be compelled to pay your father’s cremation or burial expenses because you are his next of kin.

- Len & Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, at 996.4505, or lentillem.com. Len also answers legal questions weekdays on The Len Tillem Show, a podcast available via iTunes, Facebook, spreaker.com and lentillem.com.

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