Is it legal for someone with POA and also the executor of a will to make changes to that will or TOD accounts within two weeks of the death?

Answer 1

First, we need to clarify the question. One cannot become an executor or personal representative until being appointed by a judicial officer like a Register of Wills or Clerk of ProbateCourt. Second, only the writer of a will may change a will, not the POA. Third, I assume you meant 2 weeks before death. A case similar to this issue is now before the PA Supreme Court. In Piatt, the PA Superior Court said the 1978 will controlled, therefore the creation of the joint accounts subsequent to signing the will could not change the disposition of the parent's estate. Most attorneys do not believe the case will hold up.

To answer your question, it is no. An agent under a power of attorney may not engage in self dealing, unless there is a clause in the POA authorizing a gift to the agent. Even with the gifting clause, most compliance officers would require a specific power in the POA to allow the change. In many states, the agent under a POA is a fiduciary who is prohibited from self dealing by the fiduciary codes of the states. That is why adult children desiring to steal money from their siblings upon the death of their Mom, become POD on all the accounts, and tell Mom this will avoid probate (true!). They also tell their parent to make them JTWROS to cut the PA inheritance tax in half (true). The PA Superior court has blocked this tactic in Piatt. If it is the intent of the writer of the will to leave assets outside the will, I always reference it in the will to avoid a challenge. I have been an estates and trust attorney for 36 years. Since TOD is a new designation, there has been little case law on the subject. David Morrison, Atty at Law, Lancaster, PA (admitted to practice law in DC & PA, and sell securities in PA).