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deceased mother without will

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mr.bobby

Junior Member
What is the name of your state? New York

My mother recently passed away. To the best of my knowledge, she had no will.
In December of 2005 she re-assigned Power of Attorney to a non-family member, formerly my brother's wife. In fact, the agent obtained POA and divorced my brother in the same month. Prior to this my sister had the POA.

I'm quite sure that my mother was diagnosed with pre-Alzheimer's condition as well as having suffered from multiple strokes in the years prior to her death.

My sister (with medical proxy) and I have been prevented by hospital staff from accessing and copying relevant documents from my deceased mother's archived medical records that would indicate when she first was diagnosed as not being competent to carry out her own financial affairs.

I've tried to communicate with the so- called "agent" and have gotten absolutely no response. The POA recently moved and hasn't informed me of her new address.
I've got a telephone number and an email address only. And it's probably on a matter of time before those are no longer valid.

The POA and my brother removed my mother from an assisted living accommodations, set up by my sister and myself, and didn't notify either my sister and/or myself for a period of 2 1/2 months. We completely lost track of my mother's whereabouts until we were notified in early February that she had been admitted to the intensive care unit. She passed away after 2 weeks of hospitalization.

I requested a copy the POA document and an Attestation of Mental Competency. I'm still waiting. There was no response. Does this person have obligations or accountability toward myself (eldest son) and my sister (next eldest daughter)?

I suspect POA fiduciary abuse and perhaps other wrongdoing, but have no proof at the present time.
The pattern of deception, subterfuge, and obfuscation speaks for itself, in my estimation.
So my question involves the legality of the present POA and what my sister and I can do to challenge it.
Can you offer advice on how to proceed?


Thank you
mr.bobby
 
Last edited:


BlondiePB

Senior Member
The POA expired upon the passing of your mother. Only the executor/personal representative of your mother's estate has the authority to obtain your mother's records. Go to Surrogate Division of the court house, open intestate probate with you being the Personal Representative. Do look into fiduciary abuse, including your mother's competency to sign a POA.

Here's NY Intestate Distribution:

§ 4-1.1 Descent and distribution of a decedent's estate

The property of a decedent not disposed of by will shall be
distributed as provided in this section. In computing said distribution,
debts, administration expenses and reasonable funeral expenses shall be
deducted but all estate taxes shall be disregarded, except that nothing
contained herein relieves a distributee from contributing to all such
taxes the amounts apportioned against him or her under 2-1.8.
Distribution shall then be as follows:

(a) If a decedent is survived by:
(1) A spouse and issue, fifty thousand dollars and one-half of the
residue to the spouse, and the balance thereof to the issue by
representation.
(2) A spouse and no issue, the whole to the spouse.
(3) Issue and no spouse, the whole to the issue, by representation.
(4) One or both parents, and no spouse and no issue, the whole to the
surviving parent or parents.
(5) Issue of parents, and no spouse, issue or parent, the whole to the
issue of the parents, by representation.
(6) One or more grandparents or the issue of grandparents (as
hereinafter defined), and no spouse, issue, parent or issue of parents,
one-half to the surviving paternal grandparent or grandparents, or if
neither of them survives the decedent, to their issue, by
representation, and the other one-half to the surviving maternal
grandparent or grandparents, or if neither of them survives the
decedent, to their issue, by representation; provided that if the
decedent was not survived by a grandparent or grandparents on one side
or by the issue of such grandparents, the whole to the surviving
grandparent or grandparents on the other side, or if neither of them
survives the decedent, to their issue, by representation, in the same
manner as the one-half. For the purposes of this subparagraph, issue of
grandparents shall not include issue more remote than grandchildren of
such grandparents.
(7) Great-grandchildren of grandparents, and no spouse, issue, parent,
issue of parents, grandparent, children of grandparents or grandchildren
of grandparents, one-half to the great-grandchildren of the paternal
grandparents, per capita, and the other one-half to the
great-grandchildren of the maternal grandparents, per capita; provided
that if the decedent was not survived by great-grandchildren of
grandparents on one side, the whole to the great-grandchildren of
grandparents on the other side, in the same manner as the one-half.
(b) For all purposes of this section, decedent's relatives of the half
blood shall be treated as if they were relatives of the whole blood.
(c) Distributees of the decedent, conceived before his or her death
but born alive thereafter, take as if they were born in his or her
lifetime.
(d) The right of an adopted child to take a distributive share and the
right of succession to the estate of an adopted child continue as
provided in the domestic relations law.
(e) A distributive share passing to a surviving spouse under this
section is in lieu of any right of dower to which such spouse may be
entitled.
 

mr.bobby

Junior Member
intestate mother

Thank you for your speedy response to my query.

re: Go to Surrogate Division of the court house, open intestate probate with you being the Personal Representative.

Do I open the "intestate probate" dossier in the county where my mother died or in the county where she last resided and where the POA lives? Those 2 locations are 300 miles apart.
Can I appoint an attorney to do that for me or my sister?


Thanks again,
mr.bobby
 

BlondiePB

Senior Member
Thank you for your speedy response to my query.

re: Go to Surrogate Division of the court house, open intestate probate with you being the Personal Representative.

Do I open the "intestate probate" dossier in the county where my mother died or in the county where she last resided and where the POA lives? Those 2 locations are 300 miles apart.
Can I appoint an attorney to do that for me or my sister?


Thanks again,
mr.bobby
You're welcome. Probate is opened in the county where mom had her residency. Though she died in a different county than where she was last domiciled, probate is in the county where she was last domiciled. Depending on the amount of your mom's estate is whether or not you will have to hire an attorney. Look in NY statutes for info about small estates/family administration. Your sister can open probate and be the PR if she wants.
 

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