Requesting Advice from Advisor

[womanpower]

I am writing from Louisiana and would like to hear from Advisor, if possible. I am always impressed by Advisors interest and responses. My question is this: I am Executrix of Mother's will. My brother was her Power of Attorney. Three months prior to her death, he moved $12,500 from her primary checking account into a secondary account with his name, as well as two of my other siblings. My brother did not tell me about this money transfer. When I accidentally discovered this, he told me it was meant to pay her funeral expense, medical bills, home insurance etc. I have since discovered that they money was "blown". I have opened the Succession, placed the inventory of assets and debts with the Court, and provided an accounting to the Court. I paid her debts, funeral expense, etc. using a trust account that she had set up (not being aware that there was other money available). Now these same three people have sued me under Rule NISI, asking that I be removed as Executrix, as I did not pay Mother's mobile home insurance. I have refused to close the Succession until they provide an accounting of the $12,500., which they absolutely refuse to do. I get different advice from attorneys, some say the Power of Attorney definately has the right to spend this money any way he wants to and that there is nothing I can do about it. Others tell me he was negligent and that it is theft. $12,500 was approximately 1/3 of Mother's total net worth. What is your opinion, please? As Executrix, do you feel that I will be held negligent when I get to Court?

Thanks.

 

[advisor10]

1-12-2002

DEAR WOMANPOWER:

Thank you for the compliment--however, I am not familiar with Louisiana law, so my comments would only be general speculation.

The advice you got from both attorneys is correct--they are both right. Yes, technically, with the power of attorney authority, he can spend the money any way he wants to without consequences, but if you wanted to bring a case of theft against him, it would be very difficult to prove successfully in court. If there is anyone else in the family who heard your mother say that this money was supposed to be used for her support, or if there is language in the power of attorney that mentions this aspect, then you would be wise to bring it up in your defense, and at least make sure to emphasize the point that they can't produce any documented receipts that prove that they spent any of that money on expenses related to her care! He showed his true colors, and also it was very bad faith not to spend any of the money on her.

How much money was in the trust?
Were there any assets distributed to beneficiaries in the will?
Who are beneficiaries of the trust and who are beneficiaries of the will?
Has any money been distributed to heirs yet, either from the will or from the trust?

No, I do not feel you wil be held negligent when you get to court. Is this lawsuit to remove you as executrix a separate action from the probate proceedings, or is it merely a continuation/prolonging of the probate proceedings for this estate? I am speculating that the reason they are trying to remove you as executrix is so that THEY instead of YOU, could rightfully claim the executor's fee, but they would have to come up with much more serious grounds than this (such as if there were felonies in your background, etc.), since this argument about non-payment of an expense is too weak to even seriously consider and will almost certanly be dismissed as ridiculous. To resolve this matter, if the estate has enough funds left in it, you should go ahead and submit a claim to the estate for payment of that insurance for at least a year or has the ownership/disposition of that mobile home been decided yet?

How much was the mobile home insurance, and why did you not pay it?

SINCERELY,

advisor

 

[womanpower]

Response to Advisor

Dear Advisor, thank you for your response. To try and answer your questions.....Mother had five children. We were to all share equally in will and trust fund, with the exception of the mobile home and lot that was specifically left to my sister in the will. My Mother and I discussed this situation and Mother did this as this sister has never been able to support herself.

I had taken my sister into my home and put her through drug treatment the same year Mother became disabled and needed full time live in help. The two lived together, and with my help on weekends and after hours, we both took care of Mother. My sister was paid a small salary, free room and board, free food, free use of Mother's car, etc. I kept a very close eye on them, as my sister was still smoking marijuana and drinking, though not doing hard drugs any longer (to my knowledge).

About six months before Mom died I had to move to a small town about a hour away. At that time I lost track of the business end of things. My Mother was dying and I was really focused on that, not the money.

After Mom died, the sister turned on me. She hid the original will from me, and I had to hire an attorney to find it. We eventally got it from her, but it took months. When I finally got the Succession opened, I found that Mother only had about $2,000 in her checking account. I then had to resort to opening and rolling over the trust fund to pay her debts. This took several months, but I finally got that done. She did not allow me to distribute Mothers personal sentimental belongings or share in them. She has kept Mothers two dogs and refused visitation of the dogs to me. The dogs were not mentioned in the will, but I love them. I have been paying their vet care through the succession. A couple of my brothers and sisters are angry about that also and want me to pay it back to the succession. One of the dogs has seizures and requires constant care which my sister will be unable to continue when the succession closes.

When I began receiving bank statements, I got one that showed the account that the POA had set up and moved $12,500. When I asked him about it, he told me it was for insurance, debts, funeral, etc. When I asked him why he had never told me about it he said it was none of my business.

My sister had originally told me not to worry about the insurance as Mother had "paid ahead". After I found out about the $12,500, I was angry and told her she needed to pay it.


Anyway, the trust fund of $23,000 was used to pay medical bills and funeral expense, and all the money it cost to find the will, open the succession, roll over the trust fund. Had I had the $12,500., practically all of the trust fund would have been left for the five of us to share. Now there is little left, and I think that is why they are angry and have sued me. All of my paperwork is filed down at the Courthouse. What do you think the Judge will say?

 

[advisor10]

1-12-2002

DEAR WOMANPOWER:

Obviously I can't predict what the judge would say, but if you are allowed to present the details of the situation you have described, then it seems very likely that the judge would rule in your favor--you have obviously had to deal with some dishonest unscrupulous relatives!

Try to get your brother to admit in court that the $12,500 was supposed to be used for funeral expenses and medical bills, and even if he doesn't admit it, make sure that the court knows about this. Ask your attorney to file a petition with the court to ask him to reimburse the estate or the trust for some or all of the funeral expenses and medical bills that you paid.

 

[womanpower]

Thank you Advisor

Thank you Advisor. My feeling is that the Judge will lock us all up for being a bunch of fruit cakes. Wish me luck.