will "destroyed" ; beneficiaries changed w/ poa

What is the name of your state? AZ (Case in NY)

My stepfather passed away after a lengthy mental illness. My mother claimed his will was destoryed in a freak flood.

She obtained letters of administration. She had a Pwr of Atty he signed (after he had been confined to a mental hospital and later discharged) and she apparently used the POA to change the beneficiary to herself on many assets including his 401k, annuity, life ins policies etc. It is a large estate.

Can I dispute the validity of the POA even if it is durable on the basis of mental incompetence? I tried to obtain an atty in NY but got nothing for my 500.00 retainer. Not sure what to do next and dont know how long the clock runs for me to file a dispute?

If I do locate a will-looked at the links here and I see he might have a copy filed in a different county as they moved before his death-can I dispute the probate done with the letters of admin? How long do I have? Where do I go to fight the POA?
thanks!!!

Did the death occur in New York?

You need to consult with 2 or more other probate attorneys to get their opinion on this. First consultation is usually free.

Seems like you would be able to protest/contest the POA on the grounds that her authority probably exceeds what is allowable through a power of attorney. Also, the companies who own the assets (insurance companies, holder of the 401K plans, etc. normally would be skeptical of any changes in beneficiaries that SHE personally made, since usually it is the owner's wishes in specifying beneficiaries that they usually try to enforce). So it is somewhat odd if they accepted her changes without challenging her.

If you could find the will, that would be the most powerful thing you could do to challenge her, since it is probably dated before the power of attorney and will probably be accepted in probate court (and she couldn't do anything to change/forge that!).

Please consider placing a small classified ad in the newspaper ("Announcements" or Special Notices section) that mentions "Searching for the last will & testament of Mr. John Doe, age 88, who died in Feb. 2000. Please call (XXX) XXX-xxxx or write to 123 Easy St., Phoenix, AZ 85329"). Cost of the ad will probably be less than $100. Attorneys sometimes read these special notices and may respond if they have it, or better yet, check with the probate court to see if the will has been filed there yet.

Seems like there may be other grounds for you to contest her actions, but you need someone who is familiar with New York probate law to best advise you, and also maybe a business law attorney who has expertise with powers of attorney could also advise you if she is legally allowed to do this.

I hope you fight her and get everything you are entitled to! It is ethically/morally wrong what she has done, greedily cheating other heirs out of their share of this estate.

Even better for you, children are entitled to a share of the estate, so your mother will eventually have to give a portion of the estate to the children. I'll research this some more and post a follow-up at a later date.


DANDY DON ([email protected])

Good news for you!

You may not have to dispute the power of attorney at all because in the grand scheme of things it doesn't really matter.

According to New York probate law, your mother is entitled to the first $50,000 from his estate for her support, and then 1/2 of the balance of the estate is also hers, with the other 1/2 of the balance BEING SPLIT AMONGST THE CHILDREN!

Do you have any brothers and sisters? If so, it looks like you all can expect to receive a nice chunk of change.

The only thing I would be concerned about if I were you would be the life insurance. Technically, that is not supposed to even go through probate. If there is any way that you could contact the insurance companies and the annuity companies to try to find out what the beneficiary designations were BEFORE she had them changed to herself, then you would have the evidence you need to fight in court to reverse HER decision so that the policies could then be made payable to the beneficiaries that your father had originally chosen. (As the surviving spouse, she automatically gets the 401K so there is no need of protesting about that.)

If you don't know the name of the insurance companies now, then wait for the probate proceedings to occur because she will probably mistakenly report that insurance money as a probate asset and you could get the information then.

You need to have your own attorney (forget about using the one you already hired on retainer--he's no good) or a family member in New York to be able to attend the probate hearings to keep informed about everything that is happening with this estate, asking the court about any questions you have and making sure that the children will receive their fair share from this estate.

Good luck in standing up for your rights and getting your fair share of what you have coming to you! It may take a few months for the estate to be settled, but you will eventually get something!


DANDY DON ([email protected])

thank you!!!

Many many thanks! I am off and running now that I know where to begin. I am putting lines in the water to a. ck for will in Queens County and run the ad you mentioned while I b. attempt to get documentation verifying original beneficiary names on assets and c. place some calls to get a business atty working on the beneficiary changes made with the POA-losts of stocks involved there too!


(Does the fact that this is my stepfather mean we have to be
mentioned by name in the will? We were raised by our "dad" since we were 10 and 7 respectively. my stepfather had no natural children. He also left provisions for my daughter and my mom took her off the life insurance as well...)

I will post status!!
-gina

Perhaps I spoke a bit too hastily. You will need to check with a New York probate attorney to find out whether you would definitely have any status to inherit as a stepchild, whether or not you were mentioned by name in the will (I had assumed that this estate was going to be divided up according to intestate probate procedure--without a will).

If possible, you might want to get a copy of her power of attorney if she files it in probate court, just to see what the language is. Even though she would have had the authority to claim or get information about her husband's assets, it looks like she EXCEEDED her authority illegally and improperly to commit illegal acts--theft, etc. She had no power to change his life insurance beneficiaries--her only responsibility would have been to contact the life insurance company to inform them of his death and to make sure that the insurance company had enough information to pay the already-designated beneficiaries. What she did looks like theft. It is possible that the life insurance company may have already issued a check in her name, so if there is any way you can find out what happened (by asking the insurance company for a copy of your father's policy so you can see the exact provisions/language, or asking them to send you the information on who the beneficiaries are--pretend that you are filing the claim now as a beneficiairy and pretend that you don't know she had the beneficiaries changed), then you will know whether you need to get your attorney's opinion about whether you should tell the probate court what she did (in changing the beneficiaries) so that she can be asked to correct the situation by writing a check directly to the beneficiaries or returning her check to the insurance company so the insurance company can give a check to the correct beneficiaries.

Also try to find out if the New York probate court requires executors to be bonded. If the answer is yes, then that might be an avenue to pursue to get recovery of the insurance money (by filing a claim with the bonding insurance company) if you can prove that monies were stolen/misappropriated. (But, again, this is something you need to discuss with your probate attorney).

I wasn't aware that a person could file there will at a county location in New York, so if you do find out something that way I will be very surprised, but you never know until you try!

Please try to be as discreet as possible when trying to find out information about your father's estate. I guess you want to know about the stocks, etc. for your own information, but it is possible you might make the mistake of aggravating your mother if she finds out you are digging for financial information. It might be better to let her report what she knows about the assets to the probate court and then have your attorney negotiate to make sure you get your fair share, but of course you have every right to find out as much as possible about what is going on.

DANDY DON ([email protected])