Probate of estate and conversion of funds issue.

[revconguy]

What is the name of your state (only U.S. law)? Alabama

I’ll try to lay this out as understandable as possible.

As early as 2012, 85 year old Mom began demonstrating behaviors symptomatic of dementia (forgetfulness, great difficulty in carrying on a conversation, getting lost, calling people by the wrong names, seeing ghosts, etc). Stepdad was with her to help out.

In early/mid 2013, I began writing emails to my out-of-state siblings cautioning them that they might want to come visit as her mental capacity is fading fast.

In August of 2013, she went through a series of falls, infections, and hospitalizations associated with these conditions. However, there is no “official” testing or diagnosis of dementia made. They just treated the results of the accidents.

There is a specific bank account set aside with a substantial (to us siblings) amount of money that the siblings were to inherit on her death. Holding these funds was the sole purpose of this account.

In November of 2013, a step-sibling drives her to another city where the inheritance bank account is and has her remove the money and deposit it into step-dad’s bank account.

Two months later in January, she is officially tested by a gerontologist/MD and officially diagnosed with advanced dementia. She enters a nursing home shortly after the diagnosis in January.

Three months later in April she dies of complications associated with the dementia.

Now, the question of the inheritance has come up in the probate of her estate. It’s obvious to everyone that she was coerced by step-sibling to withdraw our inheritance money and transfer it in November prior to her official diagnosis in January.

Unfortunately, we are being told that step-sibling will likely get away with the scam as we have no piece of paper saying she was incompetent in November. The step-sibling and stepdad’s position is that dementia set in between November when the withdrawal was done and the January diagnosis of advanced dementia.

The siblings are calling BS on this, but are at a loss about what to do. Frankly, we don’t have faith in the attorney working on behalf of the siblings in the probate. He just shrugs and says “oh, well”. He obviously is not motivated.

To the educated minds on this board, do you see a way to fight this obvious coversion of our inheritance? Should we seek a different attorney?

 

[tranquility]

How much are we talking about?

Did anyone have mom's power of attorney over financial matters before she was diagnosed with dementia?

Realistically, trying to prove mom lacked capacity before she was diagnosed is going to take a lot of money. Discovery alone will take a lot. Unless the amount is fairly large, no one is going to want to front the money to discover if a case can be made mom lacked capacity let alone if it can be won.

 

[revconguy]

How much are we talking about?

Did anyone have mom's power of attorney over financial matters before she was diagnosed with dementia?

Realistically, trying to prove mom lacked capacity before she was diagnosed is going to take a lot of money. Discovery alone will take a lot. Unless the amount is fairly large, no one is going to want to front the money to discover if a case can be made mom lacked capacity let alone if it can be won.

Thanks Tranquility. We are talking about $125,000

 

[tranquility]

Thanks Tranquility. We are talking about $125,000

When you say attorney "working for the siblings" what do you mean? Do you mean each of you have joined together to hire an attorney for some reason? What was that reason?

The amount is large enough to spend a bit in discovery if you already have an attorney retained. For some reason, I suspect the attorney you are talking about is the estate's or trust's attorney and not yours.

 

[revconguy]

When you say attorney "working for the siblings" what do you mean? Do you mean each of you have joined together to hire an attorney for some reason? What was that reason?

The amount is large enough to spend a bit in discovery if you already have an attorney retained. For some reason, I suspect the attorney you are talking about is the estate's or trust's attorney and not yours.

Sorry, I didn't want to get into too much to keep any confusion down. There are two co-administrators of the estate. The stepdad and one of the siblings. The stepdad and siblings are not friendly. The stepdad hired a attorney to file probate. That attorney is not speaking to or communicating with the sibling who is a co-administrator. As a result, the siblings got together and hired their own attorney to look our for their interests. It is the siblings attorney that just doesn't seem to care. Also, to answer a previous questions I skipped over, there was not a power of attorney at the time of the money transfer. That's why they physically drove her out of town to the bank to get the money transferred.

 

[tranquility]

Sorry, I didn't want to get into too much to keep any confusion down. There are two co-administrators of the estate. The stepdad and one of the siblings. The stepdad and siblings are not friendly. The stepdad hired a attorney to file probate. That attorney is not speaking to or communicating with the sibling who is a co-administrator. As a result, the siblings got together and hired their own attorney to look our for their interests. It is the siblings attorney that just doesn't seem to care. Also, to answer a previous questions I skipped over, there was not a power of attorney at the time of the money transfer. That's why they physically drove her out of town to the bank to get the money transferred.

The interests of the administrator sibling and the beneficiary siblings are not the same. (Even if the administrator sibling is also a beneficiary sibling.) If the attorney was hired solely as the beneficiaries' attorney to protect their interests, you need to specifically ask him why he does not think it reasonable to follow up on the money. It may be there is something else going on (Joint account, marital property, etc.), it may be your retainer was only to advise and not to litigate, it may be the cost of discovery and litigation or it may be any of a number of things; but, it seems the amount is high enough and the conditions odd enough to demand specific advice on the matter.

 

[latigo]

What is the name of your state (only U.S. law)? Alabama

I’ll try to lay this out as understandable as possible.

As early as 2012, 85 year old Mom began demonstrating behaviors symptomatic of dementia (forgetfulness, great difficulty in carrying on a conversation, getting lost, calling people by the wrong names, seeing ghosts, etc). Stepdad was with her to help out.

In early/mid 2013, I began writing emails to my out-of-state siblings cautioning them that they might want to come visit as her mental capacity is fading fast.

In August of 2013, she went through a series of falls, infections, and hospitalizations associated with these conditions. However, there is no “official” testing or diagnosis of dementia made. They just treated the results of the accidents.

There is a specific bank account set aside with a substantial (to us siblings) amount of money that the siblings were to inherit on her death. Holding these funds was the sole purpose of this account.

In November of 2013, a step-sibling drives her to another city where the inheritance bank account is and has her remove the money and deposit it into step-dad’s bank account.

Two months later in January, she is officially tested by a gerontologist/MD and officially diagnosed with advanced dementia. She enters a nursing home shortly after the diagnosis in January.

Three months later in April she dies of complications associated with the dementia.

Now, the question of the inheritance has come up in the probate of her estate. It’s obvious to everyone that she was coerced by step-sibling to withdraw our inheritance money and transfer it in November prior to her official diagnosis in January.

Unfortunately, we are being told that step-sibling will likely get away with the scam as we have no piece of paper saying she was incompetent in November. The step-sibling and stepdad’s position is that dementia set in between November when the withdrawal was done and the January diagnosis of advanced dementia.

The siblings are calling BS on this, but are at a loss about what to do. Frankly, we don’t have faith in the attorney working on behalf of the siblings in the probate. He just shrugs and says “oh, well”. He obviously is not motivated.

To the educated minds on this board, do you see a way to fight this obvious coversion [sic] of our inheritance? Should we seek a different attorney?

Understandable? The only thing about your narration that is comprehendible is that you have drawn unsupported legal conclusions. Conclusion that I'm in agreement with the attorneys as not being capable of supporting.

You tell us that mom had a bank account that was specifically set aside to be inherited by you and your siblings. But you don't mention that any of you were named to that account and that it was established with rights of survivorship.

Which, even if the account were to have existed at the time of her death, is the only way, other than by her will, that you and your siblings could have succeeded to it. But it wouldn't be inherited. It would have passed outside of probate.

Then as to a will, you give no mention of mom having one that was admitted to probate containing a clause bequeathing such an account to you and your siblings. And even if so, it was no longer a part of her estate and such a bequest would have lapsed for lack of subject matter.

This is not to mean that the party charged with administrating an estate is not duty bound to collate all assets rightfully belonging to the estate, including suing to recover property wrongfully taken. But here you are talking about an account transferred into the name of the deceased's husband. Plus. it occurred more that two years ago and the Alabama statute of limitations for fraud is two years!

 

[revconguy]

Understandable? The only thing about your narration that is comprehendible is that you have drawn unsupported legal conclusions. Conclusion that I'm in agreement with the attorneys as not being capable of supporting.

I'm not sure what is not comprehendible and I'm note sure what unsupported legal conclusions I have drawn. I'll reread the thread and see why you made that claim. I apologize if the situation is too confusing for you. It's not a easy situation to work through. Perhaps it too complicated to adequately describe on a internet forum.

You tell us that mom had a bank account that was specifically set aside to be inherited by you and your siblings. But you don't mention that any of you were named to that account and that it was established with rights of survivorship.

To our knowledge, none of us were specifically named as beneficiaries on the paperwork at the bank. This is an account that has existed for 30+ years and had not been touched in that time. It was only bequeathed in the will.


Which, even if the account were to have existed at the time of her death, is the only way, other than by her will, that you and your siblings could have succeeded to it. But it wouldn't be inherited. It would have passed outside of probate.

I assume you mean it passed outside of probate because it no longer existed on the day Mom died. But had been converted to stepdad's account two months prior to death.


Then as to a will, you give no mention of mom having one that was admitted to probate containing a clause bequeathing such an account to you and your siblings. And even if so, it was no longer a part of her estate and such a bequest would have lapsed for lack of subject matter.

Will admitted to probate says children are to inherit the funds from that account. Unfortunately, the funds had been previously converted two months earlier to another bank account without Mom's name on it.


This is not to mean that the party charged with administrating an estate is not duty bound to collate all assets rightfully belonging to the estate, including suing to recover property wrongfully taken. But here you are talking about an account transferred into the name of the deceased's husband. Plus. it occurred more that two years ago and the Alabama statute of limitations for fraud is two years!

We understand that knowing the truth of what happened and proving it are two completely separate things. The money still exists, it just been moved to an account untouchable by the administrators. There is no doubt Mom was well into advanced dementia at the time of the conversion. I guess you can take any old senile old person to the bank and get them to sign over their bank account to you with impunity. The mental state of the individual doesn't matter as long as they can put their X on the bottom line of the withdrawal slip.

[Edit] A follow-up. The estate in question is non-trivial. At least 7 homes, $1m in monetary assets, and about 20 cars are involved. I am the one sibling who was designated as the co-administrator of the estate along with evil stepdad. I don't have it in front of me but the will has wording to the effect of "unless they are not willing or able to serve as co-administrator...". If I'm not going to inherit anything at all, I'm not inclined to go through the hassle of serving as a co-administrator. I haven't signed any legal document saying I'll serve. Thus, I presume I can just walk away from this mess?