| Question: I am listed as the Successor trustee, my | | | | of the trust instrument. That would be your dad, if he is |
| bother is listed as the Durable Power of Attorney for | | | | the trustee, or you, if you are the trustee. |
| property management of my father's estate. Does | | | | If your dad is no longer living, then your brother's power |
| one have more power than the other. Does the POA | | | | of attorney would be null and void, and any property |
| have the power to sell my dad's property or do I the | | | | owned solely by your dad would become probate |
| successor? Thanks ahead of time - really confused. | | | | property. That property would then be managed by |
| N.H. | | | | the executor under your dad's will or by a |
| Answer: Dear N.H. - Generally speaking, you can have | | | | court-appointed administrator. The property in your |
| as much power under a power of attorney as you | | | | dad's living trust would continue to be managed by you |
| can as a successor trustee. As a practical matter, | | | | as the successor trustee. |
| however, the laws of most states are better defined | | | | That being said, I'm concerned that you and your |
| with respect to trustee powers and financial institutions | | | | brother have been placed in a very difficult position |
| are more accustomed to dealing with trustees. So, that | | | | that will result in a major rift between you and your |
| sort of gives the edge to trustees. If you're concerned | | | | families. By your question, it's already apparent that a |
| about a specific type of power, you'd have to check | | | | disagreement is brewing. |
| the laws of your particular state. | | | | Unfortunately, this almost always happens when |
| Your question, though, is whether your brother has the | | | | siblings are placed in different roles, as with you and |
| power to sell your dad's property under his power of | | | | your brother. It creates a natural conflict that cannot |
| attorney or whether you have the power as | | | | readily be avoided as long as you remain in different |
| successor trustee. It's not clear to me whether your | | | | and conflicting roles. |
| dad is still living or not. Assuming that he is, then he's | | | | It is for this reason that I always recommend that all |
| probably the sole trustee of his trust and you're just | | | | siblings be appointed to each of these positions - at |
| waiting in the wings until he steps aside. If that's the | | | | least to the extent possible. Yes, it becomes |
| case, then you don't have any power to manage his | | | | cumbersome if three or more siblings are appointed as |
| property. If there is any property in your dad's trust, | | | | attorneys-in-fact, or as successor trustees, or as |
| your dad would be the only person who could manage | | | | executors under the will. And, yes, you may be able to |
| it since he is the sole trustee. | | | | exclude some siblings without hurting any feelings, if, for |
| If your dad is still living, then your brother would have | | | | example, some are too young, or too old, or live too |
| the power to manage his property right now, even | | | | far away, or have certain physical or mental disabilities |
| though your dad is able to do it on his own. In most | | | | that prevent them from serving. The important point, |
| cases, however, the intent is that the power of | | | | however, is that none of them should be offended and |
| attorney would be used only in the event the principal | | | | no conflicts should be allowed to exist. If that can't be |
| (i.e., your dad) is unable to attend to his own affairs. | | | | accomplished with the appointment of siblings, then an |
| The real issue here is who owns the property? If your | | | | independent professional should be appointed to those |
| dad owns the property, then your brother has the | | | | positions. Its always better to have the siblings united |
| power to manage it under his power of attorney. If | | | | against someone else rather than divided among |
| your dad's living trust owns the property, then the | | | | themselves. |
| trustee has the power to manage it under the terms | | | | |