ESTATE PLANNING: Catching up on readers' questions

2013-11-23T16:20:00Z ESTATE PLANNING: Catching up on readers' questionsChristopher W. Yugo Times Business Columnist
November 23, 2013 4:20 pm  • 

Q: You said in a previous column most personal property owned by a married couple is jointly owned. How do you know for sure?

A: The Indiana Code provides that personal property obtained during the marriage and in the possession of both the husband and wife is presumed to be jointly owned property and becomes the sole property of the surviving spouse. There are some exceptions to this rule such as bank accounts. However, I think it is a safe bet that tangible personal property acquired during a marriage is jointly owned.

If I were handling an estate for a decease spouse, I would simply assume that the personal property (furniture, appliances, etc.) belongs to the surviving spouse and make the party challenging that presumption prove otherwise. In other words, put the ball into their court.

Q: How often should you update your will? Does it ever expire?

A: Wills don't expire. If it was validly executed, it should be good despite the passage of time. I've seen wills that were 30 years old and did not have a problem probating them. The procedure was a little different for really old wills, but the will itself was valid.

How often it should be reviewed is up to you. I suggest you at least review your plan every five years or so to see if anything needs to be done. If there was a major life change such as a marriage, divorce or a birth, I would review it sooner.

Q: My dad has a power of attorney but the bank doesn't want to accept it because it is almost 10 years old. My dad can't sign a new one. What can be done?

A: Assuming the power of attorney is durable (most of them are), it should be valid regardless of age. However, I understand the bank's concern about accepting a very old power of attorney.

Fortunately, there are code provisions that addresses this type of situation. First, if you present an original signed power of attorney, the presumption is that it is valid, unless the third party has actual knowledge that it is invalid. In addition you can provide a certification that the power of attorney is still valid and in force. I would also point that third parties are shielded from liability by accepting the certification and acting in good faith. It might take a phone call or a letter from your attorney, but the bank should accept the power of attorney.

Opinions are solely the writer's. Christopher W. Yugo is a Crown Point attorney. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN, 46321 or to Yugo's information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant or estate-planning specialist.

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