Wow - complete disregard for decedent

[Scuba]

This may be naive, but I was just blown away today. My brother-in-law, who has been living in Memory Care for the last 5 years, recently passed away. I heard the news a week ago and today I pulled out a copy of his will and realized I was named the executrix. I called his sister, who has been acting as his POA ever since my sister (his wife) died in 2020. After asking how she and the family are doing, I told her I had read over his will and as the executrix, I would need to get a complete list of assets so I could begin the probate process with his will. My sister and her husband had identical wills. Both had charitable bequests and then left the remainder to their sisters, split 50/50.

She suggested that she could just handle everything since as his POA, she had been handling his affairs for the last several years. I told her I needed to fulfill my legal responsibility. Besides, my BIL left a significant portion of his assets to charity, after which any residual was to be split 50/50 between the two of us. She said she should get everything because she had been doing the work to visit him and manage his affairs the last four years, and did not seem inclined to cooperate with the idea of probating the will. Just WOW!

I will be reaching out to an attorney who handles contested estates on Monday. Another attorney I know volunteered to write her a letter, but I’m thinking of engaging a firm who could handle litigation over the estate if it comes to that. I am not sure of the funds involved once his charitable wishes are fulfilled and any creditors are satisfied, and I’m fairly confident it is not a huge amount, but it is just not right for her to disregard his wishes so blatantly.

Has anyone else experienced something like this? If so, any advice?

 

[SecondAttempt]

This is why there is a probate process. The gloves come off when someone with money dies. Truly sad.

 

[Scuba]

It really is sad. I don’t know exactly what he had, but it is horrible not to want to honor the person’s wishes. Pretty important to pick the right POA.

 

[Route246]

Not sure where you are but I believe in California durable POA ceases when the person dies. This type of stuff really upsets me. I was trustee for my parents' estate and I am thankful my brother and I always got along, the 50-50 split was performed per my parents' wish and it was frictionless. The trust attorney charged something like $3K to handle all of the filings and legalities, we never dealt with a court and once I went to the bank and had the funds disbursed the whole matter was done except for tax returns and closing the bank accounts after tax returns were filed. My parents were simple people but they invested in getting this right and my brother and I benefitted greatly from their love and thoughtfulness about this.

 

[HarveyS]

Maybe you got her on a bad day and she is still suffering from this loss. It sounds like you were not part of BIL's life anymore-is that correct? You said it was just a week ago that you heard the news. Did you attend a service for the deceased? She may be angry (at you, or just in general) for any number of reasons, rational or irrational.

The first question to answer, is the juice worth the squeeze? You are about to do a great deal of squeezing. IOW, is the estate large enough to fight for? If the charity share is, but your 50% isn't, let the charity fight it. I understand your desire to have your sister and BIL's wishes followed. However, you need to assess the cost (in my experience it will cost more emotionally than financially) to do this.

If you choose to fight, once the fight begins you will probably need to do some forensic accounting to see how the deceased $ were spent while he was in care. Did SIL charge fees for handling his affairs, shopping trips, medical visits, etc. Were there fees for filing taxes? Etc. IANAL, but I personally believe these are legitimate and could be directed to her from the estate now if she did not "charge" them all along. Or, were there reimbursements to SIL that seem too high? Or, were there additional charges that showed up on BIL's credit card that seem to be not legitimate charges for him (airline tickets, hotels, etc). SIL has demonstrated she is uncooperative, so good luck getting this info.

Alternatively, you could just put a stake in the ground today, and work from the data you have. You will still need info from her - bank statements, tax returns, asset lists, etc.. All will be difficult to get from her.

I wish you well with your decision. When I went through something similar is took over 18 months to settle the estate, lots of bickering, lawyer letters and demands, and in the end there was never any accounting of anything. Just a summary sheet with a settlement check. I decided to stop fighting and move on with my life.

 

[gauss]

#1) In most states POA powers cease to exit upon the death of the individual granting the POA. So I don't think your sister would get very far with this (unless she has already transferred the estate assets into her personal account via the POA or via online access to his accounts).

#2) In many states, there is no legal obligation for you to serve as executrix. If you decline there may be an order of preference beyond that. As his sister, she may be high on that list. If however, you believe that your BIL named you intentionally over his sister for good reasons (vs just trying to split up the load) then you may wish to fulfill his wishes.

After serving as Personal Representative for 3 close relatives, I can say that it can be a lot of work. In my case, I did not have many other "interested persons" involved so the probability of contention was low. As such, I did not hire professionals, so I likely spent more time on this than truly necessary if I was willing to outsource he legal and accounting work.

She suggested that she could just handle everything since as his POA, she had been handling his affairs for the last several years. I told her I needed to fulfill my legal responsibility. Besides, my BIL left a significant portion of his assets to charity, after which any residual was to be split 50/50 between the two of us. She said she should get everything because she had been doing the work to visit him and manage his affairs the last four years, and did not seem inclined to cooperate with the idea of probating the will. Just WOW!

This brings up an interesting question. Does BIL even have a probate estate (aka assets owned in his own name with no joint owners nor any beneficiaries / TODs/ PODs).

Or was the sister planning to attempt to withdrawal assets after his death based on the POA (an act "not consistent with law" in most states)?

Either way, in most states anyone can order a death certificate and share it with the financial institutions where the deceased may have had funds. Hopefully they would lock the account at this point to prevent any acts "not consistent with law" as described above.

If funds were disbursed in a manner as suggested above after death, then there would likely be legal techniques to recover those funds.

POA laws generally come with very strict requirements not to engage in this type of activity.


-gauss

 

[gauss]

I wish you well with your decision. When I went through something similar is took over 18 months to settle the estate, lots of bickering, lawyer letters and demands, and in the end there was never any accounting of anything. Just a summary sheet with a settlement check. I decided to stop fighting and move on with my life.

In my state the Probate Closing documents sent by the Personal Representative to all the Interested Parties specifically says that they have a right to a full accounting. If this was not provided then a letter to the Personal Representative and/or a visit to probate counter could help to get this back on track.

-gauss

 

[audreyh1]

Did your BIL name an alternative executor?

 

[aja8888]

It really is sad. I don’t know exactly what he had, but it is horrible not to want to honor the person’s wishes. Pretty important to pick the right POA.

maybe she spent most of it already?

 

[gauss]

^ but again, recoverable if she is collectable ,if taken contrary to law (especially post death). There will be records of balances at the financial institutions at date of death. Anything removed contrary to law would IMHO easily be subtracted first and foremost from her share of the remaining inheritance.

Lining up a good attorney for this is a really good strategy IMHO if nothing more than to ask these types of questions and verifying strategy and tactics.

I view comments I make here as "thought starter" points from SGOTI that may be useful that may be useful in conversations with legal counsel.


-gauss

 

[EastWest Gal]

You need a good lawyer ASAP in the state where your BIL lived. If his sister has spent anything on herself it is illegal, though I think it is a civil case. Get copies of the death certificate, get them to the attorney, and if you know where his accounts are, bank, investment, etc. they need to be notified of his date of death, and the accounts will be frozen until execution of the will.

Another concern is that she may have set it up TODs on his accounts while she was the attorney-in-fact. If this is the case, she may have violated both civil and criminal law. Good luck!

 

[Stormy Kromer]

Since you asked.

I would hire an attorney.

 

[ncbill]

Spouse is usually entitled to 1/3 to 1/2 of the estate regardless of will language assuming all of BILs estate is marital property & there's nothing like a prenup.

As a practical matter, any assets owned jointly with spouse pass outside probate.

If spouse has been handling their financial affairs for years the spouse has probably moved as many of BIL's assets as possible into joint accounts already.

So I'd wonder if there are any significant assets left to probate.

 

[gauss]

^ I think the spouse is deceased in 2020) per OP's first post.

It was his sister who had the POA and performed the caregiving.

 

[sengsational]

Interesting quandary, and it looks like some smart ideas for the smoothest possible paths. Do states have a place where they can tell you what accounts are in a person's name? Or I suspect with the will and a death certificate, you could get old tax returns which would show at least the accounts that had income. So that's a zero cooperation path to having a balance sheet, or at least assets. You present that, and if it has all the significant assets, there might be cooperation with getting the liabilities.

 

[ncbill]

^ I think the spouse is deceased in 2020) per OP's first post.

It was his sister who had the POA and performed the caregiving.

Whoops...however:

If sister had POA she probably had the power to setup new accounts, even joint accounts.

And then transfer his assets to those joint accounts.

So is there really any probate-able estate left?

 

[Scuba]

Thanks to everyone for the input. His sister was the POA, and her responsibilities ended upon his death. They live in TX. I was involved in his life, although it became more difficult as he deteriorated because my involvement was via Zoom or FaceTime. I didn’t question his sister about how she was managing his funds, except for one time when she sold the condo that BIL had jointly owned with my sister. I asked her what she was doing with the proceeds. She claimed she just put them in his account. I repeatedly suggested ideas to her for how to use some of the funds for his benefit - hire a companion to visit him more frequently in Memory Care since she wasn’t visiting too often, get him better hearing aids, etc. I know she never hired a companion and his hearing aids never seemed to improve in my conversations with him.

I think a good next step is to talk wit a TX probate attorney and get advice as to potential next steps, costs, and outcomes. The SIL and I always had a cordial relationship and we spoke a few times a year, but I don’t care whether we maintain a relationship. With the way she’s behaving, she seems to be an evil person and I wouldn’t want her in my life anyway.

She is not having any type of service for him. Both he and my sister wanted their ashes commingled and scattered, but with this latest development, that probably won’t happen. I had suggested I would fly to TX and bring my sister’s ashes so we could honor that wish, but that seems unlikely at this point.

 

[gauss]

Interesting quandary, and it looks like some smart ideas for the smoothest possible paths. Do states have a place where they can tell you what accounts are in a person's name? Or I suspect with the will and a death certificate, you could get old tax returns which would show at least the accounts that had income. So that's a zero cooperation path to having a balance sheet, or at least assets. You present that, and if it has all the significant assets, there might be cooperation with getting the liabilities.

Not initially.

With a death certificate (which I believe includes a social security number in most states), one can approach each financial institution individually to inquire.

The back stop for missed accounts, is that after 3-5 years in most states, dormant accounts are required to be escheated to the state's unclaimed property office to hold and publicize until a valid claim comes forward.

My parents received paper statements for their accounts so this was fairly easy for me. In the age of paperless statements and email providers (talking to you Yahoo! Mail) who refuse to acknowledge state court orders (Probate Letters Of Authority) this could be tougher for the next generation. I do think there is progress in the law to facilitate dealing with these digital assets such as web based email accounts.

-gauss
p.s. A will, in many states, for all but the smallest estates will get you nothing except the chance to present the will to the local Probate Court who will then appoint someone to officially manage the affairs. 3rd parties generally don't look at wills -- only death certificates - and the court issues letters of authority if required.

Liabilities are identified first by bills received in the US Mail, but ultimately publication in a legal newspaper publicly announcing the death and giving a deadline for all creditors to come forward. This is all governed by state law.

 

[gauss]

I think a good next step is to talk wit a TX probate attorney and get advice as to potential next steps, costs, and outcomes. The SIL and I always had a cordial relationship and we spoke a few times a year, but I don’t care whether we maintain a relationship. With the way she’s behaving, she seems to be an evil person and I wouldn’t want her in my life anyway.

.

I'd be cautious here. I have seen many times when family caregivers really believe that they will be financially taken care of after the person passes away. Hearing that the law says otherwise can be emotionally challenging for them. Especially if they share a home for years. This seems to happen quite often given the number of instances I have seen.

On the other hand I have seen at least one case where the 2nd wife tried to erase the husband's children after his passing and transfer all assets to her daughter. This seemed much higher on the evil scale than other cases that I referred to above.

I am sorry to hear that you are dealing with all this.

-gauss

 

[street]

Is there a path to tell your story to the State Attorney or County Attorney and let them sort it out per his will?

I personally wouldn't get into a fighting match over the estate. I would be concerned if all requests weren't done to his will.

So, my take is let it be known there may be illegal issues and let it ride out from there.

 

[MarieIG]

As the proposed executrix, I would hire a qualified probate attorney, and put him/ her / the firm in charge of future requests and communications with the SIL.

And yes, I have heard / "seen" some ugliness in inheritance situations.

 

[Willers]

I recently became the executor of DM's estate and have an interested party in the family with a litigious background. The first thing I did was hire an attorney that specializes in estate planning and probate matters. I can't recommend this highly enough and suggest you follow his/her instructions to the letter to avoid issues down the road. Money very well spent, in my opinion. As long as you follow the will, as written, you should be fine. A very sad situation.

 

[ivinsfan]

Thanks to everyone for the input. His sister was the POA, and her responsibilities ended upon his death. They live in TX. I was involved in his life, although it became more difficult as he deteriorated because my involvement was via Zoom or FaceTime. I didn’t question his sister about how she was managing his funds, except for one time when she sold the condo that BIL had jointly owned with my sister. I asked her what she was doing with the proceeds. She claimed she just put them in his account. I repeatedly suggested ideas to her for how to use some of the funds for his benefit - hire a companion to visit him more frequently in Memory Care since she wasn’t visiting too often, get him better hearing aids, etc. I know she never hired a companion and his hearing aids never seemed to improve in my conversations with him.

I think a good next step is to talk wit a TX probate attorney and get advice as to potential next steps, costs, and outcomes. The SIL and I always had a cordial relationship and we spoke a few times a year, but I don’t care whether we maintain a relationship. With the way she’s behaving, she seems to be an evil person and I wouldn’t want her in my life anyway.

She is not having any type of service for him. Both he and my sister wanted their ashes commingled and scattered, but with this latest development, that probably won’t happen. I had suggested I would fly to TX and bring my sister’s ashes so we could honor that wish, but that seems unlikely at this point.

Where do you get the word evil? She was the POA and set up and was involved in his care taking. It sounds as though the two of you have had more then one go round about his money. You are making a lot of assumptions about what she might or might not have done. Honestly from the outside it seems odd that her brothers money after charity donations will be spilt 50/50 between his DS and his deceased DW sister. This seems unusual. Are the two of you the last living blood relatives? As far as hear aids and visits from hired caretakers during dementia problems that seems like nitpicking to me.



Step back a minute and think this over...

 

[street]

Maybe tell her you are going to see an attorney on Monday. She may want to cooperate with what the will says giving notice of hiring an attorney.

If it were me, I would be very transparent with every step, and she would be informed all the way through the process. It would follow the will to a T.

 

[ivinsfan]

I recently became the executor of DM's estate and have an interested party in the family with a litigious background. The first thing I did was hire an attorney that specializes in estate planning and probate matters. I can't recommend this highly enough and suggest you follow his/her instructions to the letter to avoid issues down the road. Money very well spent, in my opinion. As long as you follow the will, as written, you should be fine. A very sad situation.

Depending on the estate this is a fine idea. What's actually sad about it? It sounds as though these 2 woman had very little actual real contact and in fact we don't know what the brother said to his actual sister. do we?