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Discussion Starter · #1 ·
My father died last year, leaving a sizeable estate. He handled all the finances, so I took over with power of attorney to handle finances for mom. My mother is now already contemplating remarriage. A pre-nup has been discussed. What needs to be included to preserve the estate for my sister and myself as my father intended?

I found this question here

I have a similar problem. but i am not happy with the answer .
I am looking for more detailed answer.


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I think you should see a lawyer with your mother. As the answerer said, it partly depends on the details of your father's will. Did he leave the estate as a trust? Or did everything go to your mother?

A pre-nup should cover the situation in case the marriage fails, but your mother's will covers after she dies.

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There is a lot of overlap between rights/powers on death and right/powers on divorce. E.g. If husband gives away (by will on death) everything owned in his name, and every thing IS in his name, then the wife can still ask the courts to give her the same half of the estate that she would have got if she divorced. I am not a lawyer, but I know this is a problem that needs a lawyer's expertise. Don't skimp on costs at this point.

Any prior will becomes invalid on remarriage, so new ones are commonly signed at the church door. The two people should both do both together.

The link's response said clearly that you are obliged to carry out your mom's wishes. I am not sure that is correct. She made the decision to trust your best efforts when she gave you the POA. You must make decisions in HER best interests (not necessarily her wishes) though, not necessarily in the best interests of you kids.

I believe it is common with second marriages, that there be frank discussion about the parent's wishes to leave most of their estate to the kids, instead of leaving even half in the hands of the second spouse who could chose to leave it, in term, to his/her own children by prior marriage.

The will can have a clause saying "anyone who disputes this allocation will lose all rights to what is specified here". That can put the risk of not-winning on the surviving spouse.

The will may put the assets into a testimentary trust (created within the will) trusteed by an independant trust company. The specifications can (eg) be that the spouse has rights to continue living in the house and receive div/interest from any portfolio, with the capital reverting to the children on spouse's death.

Testimentary trusts are great vehicles. They are taxed just like another individual, with a basic amount untaxed, and incremental income taxed at rising rates. But the beneficiaries have essentially NO RECOURSE if they disagree with the trustee. So best to specify DUAL trustees with a family representative along with the professional.

The will may specify that certain assets go straight to the spouse "with the wishes that the spouse will leave any residual value to the other spouse's kids at the later death". But this cannot be enforced in any way. And believe me, people's attitudes about what they 'deserve' will not be what you think.

Coming back here later I see I have talked about the will, but not really the agreement. There may well be an idea that you can get around the bad feeling of the agreement by putting all the stuff in a will, but I would not rely on that. Much better to have the same terms in both documents.

P.S. watch how you use terms like 'already'. Even the kids don't know what goes inside a marriage. Don't judge.

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I don't think my answer will make you happy either.

From the original post it seems that your dad left all the money to your mom. Currently you are POA but that can change anytime.

The money now belongs to her exclusively and she can now do whatever she pleases with it. By leaving her the money your dad intended for her to use it.

I would be very careful not to alienate your mom or her new beau over this. Doing so may cost you the relationship and inheritance.

For now it's not your money and you have no claim on it.

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I concur with Berubeland's comments. Unless there is something we don't know, he captures the legal situation well.

He handled all the finances, so I took over with power of attorney to handle finances for mom.

A POA can be cancelled at any time.

What needs to be included to preserve the estate for my sister and myself as my father intended?
You and your mother need to agree that it in fact was your father's intent, and not an idle wish on your part. Your mother may need independent legal advice because of the conflict of interest you are in as a potential beneficiary.

A pre-nup has been discussed.
This would be a good idea for any marriage where someone enters a marriage with a "sizeable estate", regardless of whether or not it is intended to preserve it for children of the first marriage. Both parties need to have an agreement over who owns and controls assets they bring into the marriage.

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Your deceased father has no estate. Your mom now has one and is free to do with as she pleases.
How old are you? Are you an adult or dependant child?

Unless your mother decides to honor your father's wishes then you are SOL.

How old is your mother? Are there any new children?

A girl I know is going through the same thing. She married some really old guy and have a new baby. Now his adult children are mad at her for stealing their inheritence.

So sad.
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