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August 1, 2008 7:30 AM

Granddaughter's land grab concerns relative

Posted by Elizabeth Rhodes

Q: An 80-year-old relative, who's not always lucid, has said in the past that his will leaves a valuable piece of property to a granddaughter. The granddaughter wants this relative's son (the will's eventual executor) to give her the property now. She says the son has the power to do this because his dad isn't always competent and she's going to get it anyway. Is this true?

A: It's likely that at best the son has a general power of attorney for his dad. That would allow the son to make some decisions on his dad's behalf.

However "the general power of attorney forms that are commonly used have no specific language allowing gifting," says Seattle attorney Mary Ann Vance. That means the son can't legally give away his father's possessions now.

And even if he could, that's risky business. Being named in a will is called an expectancy, because there's an expectation -- not to be confused with a guarantee -- that the person named will get something. What if Grandpa changes his will tomorrow?

But even if the son could hand over the property today, the granddaughter would be foolish to accept it because of the tax implications. Vance says the granddaughter likely will pay far less in taxes if she waits to inherit the property.

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