Other Estate Planning Concerns

Durable Power of Attorney

Plummer v. Estate of Plummer, 51 S.W.3d 840 (Tex. App.—Texarkana 2001, pet. denied).


Mother executed a durable power of attorney naming Son and Daughter One as agents. Son and Daughter One transferred money from a certificate of deposit which was held as joint tenants with rights of survivorship with Daughter Two into a preexisting checking account on which Son and Daughter One had survivorship rights. Mother died several days after the transfer. Daughter Two brought suit against Son and Daughter One alleging that they had breached their fiduciary duties. Both the lower and appellate courts held that no breach occurred.

The appellate court began its analysis by looking at the account Mother held jointly with Daughter Two. Mother had contributed all the funds in this account and thus Daughter Two had no ownership rights in the account. Prob. Code § 438. The court next examined whether Son and Daughter One’s act of closing the account, defeating Daughter Two’s expectancy, and placing the funds into an account on which they had survivorship rights was an act “antagonistic” to Mother which thwarted her intent to have Daughter Two receive those funds upon Mother’s death. The jury carefully examined the facts and determined that Son and Daughter One had a legitimate reason to combine the funds, that is, to consolidate the funds to make it easier to pay Mother’s nursing home bills. In addition, Son and Daughter One indicated in court that they would renounce their right of survivorship in the account and permit the funds to pass equally to all eight of Mother’s children under the terms of Mother’s will. Thus, the placing of the funds in an account in which they held survivorship rights did not inure to their benefit.

Moral: When an agent manages a principal’s property, it is highly likely that those acts will impact the at-death distribution of the principal’s property. A principal should include instructions in the durable power of attorney regarding any assets or funds which should not be sold or used except as a last resort to preserve any specific gifts, survivorship rights, etc. that the principal may have already created.