Can a Power of Attorney nominate a successor/backup? I have my Dad's Power of Attorney, and he is in assisted living and hospice. I was the backup for his wife who died. Since I'm single, can I appoint someone else in case something happens to me? Or if I create a Power of Attorney for myself, can that person step in the shoes of my Dad's Power of Attorney? The concern is that if something happens to me, would the state come in to assign a ward/guardian for my Dad? My Dad can still sign his name, but he wouldn't understand what he is signing. Side note. I'm also the trustee of his trust, and the backup for it is his wife's sister. However, I'm not sure she would want the responsibility of his care. (Located in Texas)
The rules for a Texas power of attorney are summarized in this page from Texas Lawhelp. The actual law is 2005 Texas Probate Code CHAPTER XII. DURABLE POWER OF ATTORNEY ACT Both of these indicate that the agent (aka attorney-in-fact) must be specifically named in the POA document. My experience with a POA in a similar situation in NJ is that multiple agents may be named, or backups in case the primary agent dies or is not available. However the Texas pages do not specifically say that. But in any case the agent or agents must be named in the POA signed by the principal, who must be of sound mind at the time the POA is signed. An agent does not have the power to name a replacement or backup agent. An Agent might be able to give a POA to another person to act in the agent's place, but that POA would lapse if the agent died, and the law does not specifically permit this, so it might not be valid in any case. A Texas court can appoint a Guardian for an incompetent person, and such an appointment takes precedence over an existing POA. That would be a way to deal with the situation if there is reason to think the agent might die or become unavailable while the principal is mentally incapable.
What you quoted does not say "a" director can appoint a director. It says "the directors", plural, can appoint a director. I assume that would be by a vote. Elsewhere in the document it might or might not be made clear if this requires only a majority and/or if this is only in cases to fill a vacancy.
No. This is not a provision that the testator or testatrix (i.e. the person writing a will) may waive in advance. But, the slayer statute does not get invoked unless an interested person invokes it in a probate proceeding after a death, and if no interested party wishes to invoke it, the will would be given effect anyway (just as it would in a case where no one could prove that someone was a slayer). Some states apply the slayer statute to will substitutes, and some do not. Similar laws that revoke dispositions upon divorce are pre-empted for interests in employee benefit plans subject to ERISA, but the U.S. Supreme Court has declined to resolve the issue. See Egelhoff v. Egelhoff, 532 U.S. 141, 152, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (pre-empting divorce revocation statutes, but declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing) (cited as good law in Kennedy v. Plan Administrator, 555 U.S. 285 (2009) at footnote 14); Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828 (2001) (circumventing ERISA pre-emption). But see, Herinckx v. Sanelle, 281 Or.App. 869, (Oregon App. October 26, 2016) (Oregon slayer statute pre-empted by ERISA and reviewing variations in state slayer statutes). A notable comprehensive review of the California and common law rules regarding how the slayer statute applies in murder-suicide cases where the victim and suicidal killer own property in joint tenancy is found in In re Estate of Castiglioni, 47 Cal.Rptr.2d 288, 40 Cal.App.4th (Cal. App. 1995). The murder-suicide scenario is also addressed in depth in the case In re Gleason, 947 N.Y.S.2d 761, 36 Misc.3d 486 (Surrogate's Court 2012). Also, the definition of homicide that qualifies under the slayer statute sometimes covers only certain forms of homicide. For example, it might apply in cases of murder or manslaughter, but not in cases of negligent homicide. Alaska, for example, takes the minority position that unintentional homicides suffice to invoke the slayer statute, subject to a manifest injustice exception. In re Estate of Blodgett, 147 P.3d 702 (Alaska 2006).1 There is unsurprisingly little or no case law on an intentional waiver of these provisions, and assisted suicide would often not qualify as an eligible homicide although this would vary from state to state. But see, Colorado Proposition 106 (adopted by voters November 8, 2016) as it pertains to insurance benefits. A Sample Statute The currently effective section of the Colorado Revised Statutes (modeled on the Uniform Probate Code, which is highly influential to legislative drafters and in courts with common law rules, but is not actually adopted verbatim by a majority of states) which are applicable to this issue reads as follows: § 15-11-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S. (c) "Governing instrument" means a governing instrument executed by the decedent. (d) "Killer" is any individual who has committed a felonious killing. (e) "Revocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power. (2) Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective-share, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share. (3) Revocation of benefits under governing instruments. The felonious killing of the decedent: (a) Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (b) Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (4) Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (5) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. (6) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong. (7) Felonious killing; how determined - time limitations on civil proceedings. (a) Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section. (b) Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section. (c) Time limitations on civil proceedings. (I) A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S. (d) Judgment of conviction. For the purposes of this subsection (7), a "judgment of conviction" includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury. (8) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (8). A payor or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (8) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (9) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. 1 The other four states and District of Columbia arguably adopting the minority position that negligent homicide invokes the slayer statute are as follows, from footnote 5 of the dissent to the Alaska Supreme Court's decision cited above. The District of Columbia slayer statute covers homicide resulting from grossly negligent conduct. See Turner v. Travelers Ins. Co., 487 A.2d 614, 615 (D.C.1985) (explaining that the slayer statute covers "unintentional killing derived from reckless or grossly negligent conduct"). Louisiana's slayer statute covers all criminal homicide. In re Hamilton, 446So.2d 463, 465 (La.App. 1984) (holding that slayer statute "was intended to include situations such as that presented by this case, where a beneficiary does not intentionally and feloniously cause the death of the insured but is nonetheless held criminally responsible for that death"). North Carolina's common law slayer rule prohibits inheritance after any wrongful homicide. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 567 (1975); Matter of Estate of Cox, 97 N.C.App. 312, 388 S.E.2d 199, 201 (1990). The continued application of this common law rule has been criticized in light of a slayer statute barring only intentional killers from inheriting. N.C. GEN. STAT. § 31A-3; see also generally Julie Waller Hampton, The Need for a New Slayer Statute in North Carolina, 24CAMPBELL L. REV. 295 (2002). Kentucky Revised Statute § 381.280 bars inheritance from those convicted of any felonious homicide. "Reckless homicide" is a felony. KRS § 507.050. Kentucky defines "reckless" as "a gross deviation from the standard of conduct that a reasonable person would observe." KRS § 501.020. Reckless homicide in Kentucky is therefore equivalent to criminal negligence in Alaska under AS 11.81.900(a)(4). Kansas Statute § 59-513 states that "[n]o person convicted of feloniously killing, or procuring the killing of, another person shall inherit." Involuntary homicide under Kansas law extends to "killing of a human being" committed recklessly, during a misdemeanor, or "during the commission of a lawful act in an unlawful manner." KS ST§ 59-513. This arguably could extend to grossly negligent conduct, especially as KS ST§ 21-3201 explains that "[t]he terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." A federal district court has held that Kansas's slayer statute does not apply to negligent homicide, and there appear to be no state cases interpreting the scope of the statute or applying it to negligent homicide. Rosenberger v. Nw. Mut. Life Ins. Co., 176 F.Supp. 379, 382–83 (D. Kan. 1959) (explaining that "the intent of the legislature in enacting the statute must have been to give effect to the common-law rule"). The Kansas slayer statute is essentially unchanged since Rosenberger.
Wills typically handle this by specifying a survivorship period. Such a clause may say, in effect, "I leave all my assets to my spouse, provided they survive me by at least 30 days, and otherwise to beneficiaries X,Y,Z." That way, if your spouse dies shortly after you, your assets go to X,Y,Z, rather than going to your spouse and then to their beneficiaries. Another issue this avoids: suppose you are in an accident together, and by the time rescuers arrive, you are both dead. Without a survivorship period requirement, courts might have to try to determine whether one of you survived a few seconds longer than the other, in order to decide whose beneficiaries get the assets. That could be difficult and error-prone, not to mention gruesome and upsetting to loved ones. But with such a requirement, it's not necessary. The linked article notes that in many jurisdictions, if you don't specify a survivorship period, there may be a statutory period that applies automatically.
For most civil matters the answer is "no". Small claims court is special since there are restrictions on using attorneys, and in that context, it depends on the rules. In Indiana, the answer in their manual is no Small Claims Rule 8 allows a person to appear at trial and, if he or she chooses, represent himself or herself and avoid the cost of hiring an attorney. However, a person is allowed to hire an attorney and have the attorney appear with him or her at the trial. A person who has power of attorney for another person may not represent that person in court. "Have the attorney appear with him or her at the trial" is pretty unclear, since it doesn't say whether the attorney can represent them. Rule 8(C)(1) states that "A natural person may appear pro se or by counsel in any small claims proceeding", which clarifies that they don't just mean "have at your side". In Minnesota, the answer is more emphatic "no": A power of attorney does not authorize a nonlawyer to file a claim, appear, or in any other way “represent” a natural person in conciliation court. As for allowing attorneys in small claims court, Attorneys are only allowed to represent parties in conciliation court with permission of the court (emphasis added). The situation in California is somewhat of a hybrid, but as I read it, it means that the incapacitated person is out of luck, which strikes me as surprising. They say Self-representation is usually required. There are, however, several exceptions to this general rule: If the court determines that a party is unable to properly present his or her claim or defense for any reason, the court may allow another individual to assist that party. The individual who helps you can only provide assistance—the individual’s participation in court cannot amount to legal representation, and the person can’t be an attorney. So this is most unlike Indiana is that you can't have an attorney, and all the person can do is "assist". So unless they just waive the rules, this means that if the individual is incapacitated, they cannot have recourse to small claims court.
The Probate Estate v. Non-Probate Transfers First off, keep in mind that only the &quot;probate estate&quot; is probated at all. Assets held in joint tenancy with right of survivorship, assets held in trust, and assets with a death beneficiary, for example, pass by non-probate transfer. Some states also have a rebuttable presumption that all tangible personal property which is not part of a business owned by someone in a married couple that is not subject to a certificate of title is owned in joint tenancy by right of survivorship in favor of a surviving spouse. The probate estate consists only of property held in the name of the decedent with no beneficiary designation and no joint tenants (although there could be tenant-in-common co-owners or co-owners as part of a general partnership). The Primary Domicile Probate The primary probate is generally conducted in the state and county in which the decedent was domiciled at death. Intangible property, including interests in entities, and the legal rights of the decedent are generally deemed to be located at that domicile for probate purposes. The common law choice of law rule is to have moveable property also governed by the law of the state of domicile. While it doesn't have constitutional standing, it is widely adopted. The unsecured claims (i.e. claims not secured by collateral) of third-parties against the decedent are deemed located at the decedent's domicile at death. A will contest is almost always conducted solely in the primary domicile state, and that resolution has collateral estoppel and arguably full faith and credit clause binding effect in other ancillary probate cases. Almost every state, however, recognizes the validity of a will that was valid where executed at the time it was executed. Estate plans of individuals with property in many states that would be subject to many ancillary probate proceedings are routinely devised so that the property subject to ancillary probate is either not subject to probate at all, because it is in a revocable trust or joint tenancy with right of survivorship or has transfer on death beneficiary, or it at least in an entity whose shares are handled in the primary probate rather than in an ancillary probate, when the decedent was represented by counsel (and it verges on malpractice not to recommend that this be done if estate planning counsel is aware of the facts). Of course, not everyone hires a lawyer to do their estate plan before they die (even if they meant to do so), so ancillary probates still happen. Ancillary Probate Proceedings When there is real property in the estate owned outright by the decedent, and not subject to a joint tenancy or other non-probate transfer (such as a transfer on death deed) and not owned via a trust or entity, then an ancillary probate must be opened up in that state to probate that parcel of real property. One if left in an ancillary probate dealing with real property and debts for which that property is collateral in the ancillary probate. But the ancillary probate is largely a formality and mostly defers to the rulings of the court in the primary probate case. Sometimes closely held business which is a sole proprietorship or general partnership (as opposed to an entity), with a state or local specific license, must be the subject of an ancillary probate. But more often, the closely held business is an entity with a license and tangible personal property held in the entity. In those cases, the stock or membership interest is intangible property that can be probated at the domicile of the decedent, rather than in an ancillary probate where the business is located. In other words, let's say a person lives in Maine, but has property in 20 different states. Various houses, boats, bank accounts, brokerage accounts, you name it. Does the will have to then be probated in every one of the states in which the various property resides? The bank accounts, brokerage accounts, and most of the etc. that are part of the probate estate would be probated in Maine. The houses outside of Maine and possible the cars and boats and sole proprietorship inventory, equipment and license transfers outside of Maine would be resolved in ancillary probate proceedings. Conflicts Of Law Between Primary And Ancillary Probate Laws What happens if the probate laws of the states conflict? The procedural rules of the forum state govern the ancillary probate, rather than those of the primary probate case. Every state adopted the general rule that the directions of a will are valid and enforceable subject to only a handful of exceptions, and in most cases, intestacy rules when there is no surviving spouse are likewise identical. Almost all states would honor a will admitted to probate in the primary probate state (and are arguably required to do so under the full faith and credit clause), even if it would not have been admitted to probate in the ancillary probate state. While it is theoretically possible to have a conflict of law regarding general partnership property, inheritance of general partnership property is largely governed by the Uniform Partnership Act and this model state law is, in fact, a law that has been adopted in every U.S. state and is uniform on this point in every U.S. state. The main circumstances in which there could be conflicts between the state probate laws are: quirky intestate situations (differences between per stirpes and per capita at each generation, or differences between treatment of half-blood or multiple line of descent heirs), exemptions from creditors (e.g. homestead rights, tenancy-by-entirety rights, special legacy property rules in some Southern states), details of slayer statutes (e.g. does negligent homicide count?), divorce revocation laws (not every state revokes will provisions in favor a divorced spouse), community property rights in property, mandatory inheritance rights of disinherited spouses (dower, curtsy and force share laws, some states treat this as a creditor's claim, others don't), and provisions for what happens when a specific devise fails because an asset no longer exists if the will doesn't specifically state what happens. It is fairly rare for this to come up in practice, however, since normally the ancillary probate forum state court defers to the primary state appointed executor's requests, and it is quite rare for that to be disputed by other parties to the estate in the ancillary proceeding. It happens, I've been there, but it is very uncommon. In those cases, there is little formal guidance. The forum state's law is presumed to apply, but that presumption can be overcome by showing that some other state has the most significant connection to the legal issue over which there is a conflict. The analysis is handled by the forum state court on a case by case basis in the rare cases where it comes up. The primary probate court can also sometimes make an end run around ancillary probate court rulings applying substantive ancillary probate forum probate laws to property in the ancillary probate state by ordering a compensatory adjustment in how property in its jurisdiction is distributed to conform to the laws of its state. A recent case from New Hampshire discussed how choice of law works in probate cases: We first address whether the New Hampshire probate division erred in applying Massachusetts’ pretermitted heir statute, rather than New Hampshire's RSA 551:10, to the testator's will. On appeal, the petitioner argues that, despite the language of Article Ninth in his mother's will, RSA 551:10 applies because his mother was domiciled in New Hampshire at the time of her death and her estate consists of only personal property. The respondent argues that “[t]he intent of Marie G. Dow is clear,” (bolding and capitalization omitted), pursuant to Article Ninth of her will, that Massachusetts law should apply and asserts that New Hampshire “give[s] effect” to choice-of-law provisions in wills. We agree with the petitioner. The probate division's findings that the testator's estate consists of only personal property and that she was domiciled in New Hampshire at the time of her death are not challenged on appeal and need not be disturbed. We review the probate division's application of law to undisputed facts de novo. Under New Hampshire law, personal property of a testator generally passes according to the law of the state of domicile. Compare Eyre, 37 N.H. at 120 (“The general principle of the common law is, that the right and disposition of movables is to be governed by the law of the domicil of the owner.”), with Mass. Gen. Laws Ann. ch. 199, § 1 (West 2012) (stating that Massachusetts, when administering the will of a non-inhabitant of the Commonwealth, will dispose of the estate “according to his last will, if any; otherwise ... his personal property shall be distributed and disposed of according to the laws of the state or country of which he was an inhabitant”). Our law comports with Section 263(1) of the Restatement (Second) Conflicts of Laws, which provides: Whether a will transfers an interest in movables and the nature of the interest transferred are determined by the law that would be applied by the courts of the state where the testator was domiciled at the time of his death. Restatement (Second) Conflicts of Laws § 263(1), at 121 (1971). Compare id. (pertaining to transfers of personal property by will), with id. § 239(1), at 48 (“Whether a will transfers an interest in land and the nature of the interest transferred are determined by the law that would be applied by the courts of the situs.”). Because the testator's will disposes of only personal property, i.e., “movables,” the nature of the interests in this property will be determined by the laws of New Hampshire — where she was domiciled at death. Restatement (Second) Conflicts of Laws, supra § 263(1), at 121. The law in New Hampshire is clear, and we are not persuaded that there is a reason to deviate from it in the instant case. The respondent relies upon our decisions in In re Farnsworth's Estate, 109 N.H. 15, 241 A.2d 204 (1968), and Royce v. Estate of Denby's, 117 N.H. 893, 379 A.2d 1256 (1977), in support of her position that Massachusetts’ pretermitted heir statute applies to the will because New Hampshire law honors the testator's intent, as expressed in Article Ninth of Marie G. Dow's will, to have her estate “administered and enforced according to the laws of the Commonwealth of Massachusetts.” This reliance is misplaced. The respondent emphasizes that the court, in In re Farnsworth Estate, “gave effect to the choice of law provision in [the testator's] will.” However, our review in that case was limited to the testator's designation of New York law as the law to apply to her testamentary trusts. In In re Farnsworth's Estate, the testator was a domiciliary of New Hampshire at the time of her death though her will was “drawn and executed in New York City.” The testator's will stated that it shall be administered in the State of New York and shall be construed and regulated by the laws of the State of New York.” We noted that the administration and validity of a “ ‘trust of movables ... created by will’ ” is generally governed by the law of the state of the testator's domicile at death, but explained that there are “ ‘two situations in which the law of another state may be applied to the administration of the trust. The first is where the testator has designated the law of another state as the governing law. The second is where the testator has fixed the administration of the trust in a state other than that of his domicile at death. We determined that the will “created both of these situations” and, thus, held that “these trusts were intended to be and should be administered in the State of New York.” Here, the testator did not establish a testamentary trust. The fact that the will at issue in In re Farnsworth's Estate disposed of the testator's property via testamentary trusts was essential to our reasoning and our decision in that case. see also In re Lykes' Estate, 113 N.H. 282, 284, 305 A.2d 684 (1973) (holding provision of will that testamentary trust be construed according to laws of Texas was “a valid provision which must be respected by this court” (citing Scott, supra §§ 574-75; Restatement (Second) Conflicts of Laws, supra § 268(1), at 143). The pertinent rules to apply to dispositions of property via will are dependent upon the form of the disposition and the form of the property. See, e.g., Haynes v. Carr, 70 N.H. 463, 463, 480, 49 A. 638 (1900) (“There is a wide distinction between a gift to charity and a gift to a trustee to be by him applied to charity.” (quotation and emphasis omitted)); Eyre, 37 N.H. at 120 (a decedent's personal property passes according to the law of the state of domicile, while real property passes according to the law of the state where it lies). Therefore, in the instant case, In re Farnsworth Estate does not support deviating from New Hampshire law as the law governing the disposition of personal property in Marie G. Dow's will. cf. Robbins v. Johnson, 147 N.H. 44, 45, 780 A.2d 1282 (2001) (“The pretermitted heir statute, on its face, applies to ‘wills,’ not to trusts.”). Similarly, the fact that the testator in Royce became a domiciliary of New Hampshire after she had become incapacitated and never regained capacity before her death was essential to our reasoning and our decision in that case. “The Royce holding was limited to the facts of that case, which are distinguishable from those before us.” In Royce, we recognized that, because the testator had no opportunity due to her incapacity to change her will after her move to New Hampshire, it was inequitable to apply the New Hampshire rule that the law of the domicile controls the succession to personal property when the testator had no opportunity to respond to New Hampshire law. Here, the testator had an opportunity to change her will after relocating to New Hampshire approximately a year before her death.3 Therefore, Royce does not support deviating from New Hampshire law as the law governing the disposition of personal property in Marie G. Dow's will. We note that our prior case law, contemplating the applicability of New Hampshire's pretermitted heir statute where the facts implicated more than one jurisdiction, has not expressly dealt with a provision like that of Article Ninth in Marie G. Dow's will, expressing her intent to have her estate “administered and enforced according to the laws” of another state — the Commonwealth of Massachusetts. See, e.g., In re Estate of Rubert, 139 N.H. at 276, 651 A.2d 937 (applying Virginia law to determine whether the plaintiff was a pretermitted heir entitled to an intestate share of the testator's personal property where the testator was domiciled in Virginia). While it is true that we attempt to give maximum effect to a testator's intent, our law does not support the application here of another state's pretermitted heir statute independent of the governing law of the testator's domicile at death with respect to dispositions of personal property. Section 264 of the Restatement (Second) Conflicts of Laws supports a testator's ability, in bequeathing interests in personal property, to select the rules of construction of another state for use in construing the language of her will. See Restatement (Second) Conflicts of Laws, supra § 264(1), at 125 (“A will insofar as it bequeaths an interest in movables is construed in accordance with the local law of the state designated for this purpose in the will.”); id. § 264 cmt. e at 126-27 (“The forum will give effect to a provision in the will that it should be construed in accordance with the rules of construction of a particular state.”). We have not expressly adopted this section of the Restatement, and we need not consider doing so here because even assuming without deciding that Article Ninth designated Massachusetts’ rules of construction for application to the will, neither Massachusetts’ nor New Hampshire's pretermitted heir statute constitutes a rule of construction. As will be discussed in section III, not only is RSA 551:10 not a rule of construction, it is a conclusive rule of law. We, therefore, hold that New Hampshire's pretermitted heir statute applies to Marie G. Dow's will because she was a domiciliary of New Hampshire at the time of her death and her will disposes of only personal property. Accordingly, the probate division erred in applying Massachusetts law to determine that the petitioner is not a pretermitted heir. In re Est. of Dow, 2019-0752, 2021 WL 199619, at *2–5 (N.H. Jan. 20, 2021) (caselaw citations omitted). The Role Of Federal Courts Notwithstanding the fact that parties to probate cases are frequently diverse in citizenship, there is an obscure court created doctrine that provides that probate cases are a matter of state rather than federal court jurisdiction. (The &quot;well pleaded complaint rule&quot; largely prevents federal question jurisdiction from applying.) Part of the legal justification for this is that probate cases are in rem proceedings that primarily adjudicate rights in a particular collection of property (everything owned by the decedent) rather than primarily providing in personam relief between citizens of different states or countries, the way that a lawsuit for breach of contract or a tort or an injunction might. So, unless title to the real property arises under the conflicting claims of two different states (which almost never happens for obvious reasons in the modern era of accurate surveying of state boundaries), diversity jurisdiction is not implicated.
Is this realistic? Yes. The dramatic performance plays out in the same way that it would in the U.S. Court system. The actual killing of the wife would be 'legal', so can he be charged for murder for something that has been done legally, only because they can prove is intent to kill her before that? Especially since he has already been acquitted of that fact. Mostly, this is an issue of causation and not double jeopardy. From a double jeopardy perspective, the crime of murder is not complete until the person dies, and they have not be tried for murder, so this is a different crime that had not occurred until after the attempted murder trial was over. Causation Issues Even if the immediate cause of the wife's death is withdrawal of life support, the shooting could still be a legally sufficient cause of the wife's death. For example, suppose that you shoot someone and the hospital can't give the victim a blood transfusion because the victim has blood type O- (universal donor) which can only receive blood from other people with blood type O-, and the hospital, due to negligence on the part of a hospital administrator, has run out out of type O- blood. The fact that the victim would not have died if the hospital has not negligently failed to have type O- blood on hand does not provide a defense to murder on the part of the person who shot her. While terminating life support is "legal" it also constitutes a non-judicial finding with legal effect on the part of the person authorizing it and the physicians signing off on the decision, the further medical care would have been futile and that the person whose life support was terminated was already dead in key material respects, even though they would not be dead for purposes of a murder charge until life support is terminated. When death is a natural and foreseeable result of action that causes physical harm, the death is caused by the act that causes the physical harm. Something else that causes death would have to be a "superseding cause" and not just an additional cause of death. Thus, the fact that life support was terminated legally does not mean that she cannot be a murder victim. Indeed, many murder victims are people who are on life support for some period of time and then have that life support terminated because it is futile to continue medical care and the person is already "brain dead" or something equivalent to that. Collateral Estoppel Issues Double jeopardy does carry with it a related concept of "collateral estoppel" which provides that facts necessarily decided in one criminal case cannot be decided differently in a subsequent, related criminal case in some circumstances. But, collateral estoppel applies only when the facts in the prior criminal case were necessarily decided on the merits in the prior criminal case. Acquittal of criminal charged does not necessarily include a determination that someone was innocent of the charges. The fact that he was acquitted of attempted murder does not mean that the jury found that he didn't attempt or intend to murder her. In particular, a dismissal of criminal charges as a result of a technicality that excluded evidence related to an element of the crime for which there was an acquittal, is not a determination on the merits that a particular element of a crime was actually absent, so it would not be binding in the subsequent criminal case for murder. An acquittal does not mean that every element of the prior criminal charges was found not to be present. Collateral estoppel arising from the double jeopardy right, in contrast, might be a ground for dismissal of the murder case, if the man's primary (and perhaps only) defense to the attempted murder case had been that he had established the affirmative defense that someone else committed the murder, or that he had an alibi that made it impossible for him to have committed the murder. Then, the jury would have found on the merits that this defense, equally applicable to the murder case, had already been established.
First, agree w/Dale M re: it would be an egregious and likely career-ending move for an attorney to fake his representation. That said, there is likely no reason why you would be unable to request such proof of representation. Your job consists of protecting the assets of the trust, carrying out any other duties outlined in the trust document, being honest and in communication with the trust's beneficiary, managing the assets, and ending the trust as determined by the trust document. Several of those points (particularly the "protecting the assets" part) argue heavily in favor of your confirming the veracity of any claims involving the trust and/or the identity or true intent of those seeking any information, etc., with respect to the trust. Also, demand letters are letters stating a legal claim and usually asks for restitution or performance of an obligation. It's not entirely clear what constitutes a "demand letter requesting information" unless you have a legal duty to provide that information (and this would - or should - be stated in the demand letter itself). Finally, should you be unable to obtain the confirmation you're seeking, you should consider consulting a trust administration attorney. In most cases, you may use trust assets to pay for expert help (including tax preparers and accountants).