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Father is wrongly keeping dev. disabled niece's inheritance

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Siege571

Junior Member
What is the name of your state? Oregon

My father was his brother's (my uncle's) caretaker. My uncle had been in a nursing home for years until he died recently. My father had taken my uncle to his medical appointments, etc., and was in charge of what little my uncle possessed. My father "saved" what ever money was left from my uncle's social security check every month (approx. $75) and also held in his possession some silver my uncle owned: a 100 oz bar of silver as well as many silver coins (all of which most likely amount to less than $5,000). My father has told my brother and me about the silver, and just a few days ago, my father showed my sister all of the silver.

My uncle had one daughter who is now 40 years old (her mother died many years ago). As this cousin of mine is developmentally disabled, my sister and I "watch over her" so to speak. She has a steady job (bagging groceries) but is unable to appropriately deal with her finances. Her paychecks are sent to me and I pay her bills each month as well as send her a check every week for necessities.

Now that my cousin's father has died, what few possessions he had belong to my cousin. My uncle had no debt, and his cremation costs were paid in advance, so there are no other debts to be paid. Unfortunately, my father has done exactly what I thought he would do. He does not want to give up the silver and will not cash it out and send it to me so that it can be used for my cousin (he believes the world is coming to an end and wants to use the silver to pay for "food storage" for my cousin since he feels it will be his "duty" to take her in when the zombie apocalypse occurs).

Is there any way to force my father to give up the money to the rightful heir without having to use an attorney or go through probate? Would it be possible to do it in small claims court? It's such a small sum, I'm assuming it wouldn't be worth the trouble to send it through probate or to hire a lawyer to sue for it, but my cousin could really use the money. My uncle did have a will (I have a copy), which states that his daughter, my cousin, will inherit his estate. My father also has a power of attorney to deal with my now deceased uncle's business.

I can't believe this dirtbag is my father. :mad: Thanks for any suggestions.
 


anteater

Senior Member
My father also has a power of attorney to deal with my now deceased uncle's business.
The authority of an agent under a power of attorney ends when the person granting the power passes away.

Given that, maybe you want to explain this more. This is a functioning business? Are there tangible assets? Those sorts of questions.

As this cousin of mine is developmentally disabled, my sister and I "watch over her" so to speak.
Is this just an informal arrangement? No guardianship/conservatorship? No durable power of attorney? If there is no legal authority, you probably won't be able to act on her behalf.

Would it be possible to do it in small claims court?
I don't want to speak with certainty about Oregon, but I very, very, very much doubt that small claims is going to get into what is essentially a probate matter.

Oregon does have a very liberal small estate affidavit process. The difficulty may be: 1) you attempting to pursue it on behalf of your cousin, and 2) getting your father to comply.

http://landru.leg.state.or.us/ors/114.html

Look for 114.505.


114.515 Value of estate; where affidavit filed; fee; amended affidavit; supplemental affidavit. (1) If the estate of a decedent meets the requirements of subsection (2) of this section, any of the following persons may file an affidavit with the clerk of the probate court in any county where there is venue for a proceeding seeking the appointment of a personal representative for the estate:
(a) One or more of the claiming successors of the decedent.
(b) If the decedent died testate, any person named as personal representative in the decedent’s will.
(c) The Director of Human Services, the Director of the Oregon Health Authority or an attorney approved under ORS 114.517, if the decedent received public assistance pursuant to ORS chapter 411 or 414 or received care at an institution as defined in ORS 179.010, and it appears that the assistance or the cost of care may be recovered from the estate of the decedent.
(2) An affidavit under this section may be filed only if:
(a) The fair market value of the estate is $275,000 or less;
(b) Not more than $75,000 of the fair market value of the estate is attributable to personal property; and
(c) Not more than $200,000 of the fair market value of the estate is attributable to real property.
 

Siege571

Junior Member
The authority of an agent under a power of attorney ends when the person granting the power passes away.
Anteater—thank you for responding! Can you tell I’m doing the Legal101 thing here? :D

Given that, maybe you want to explain this more. This is a functioning business? Are there tangible assets? Those sorts of questions.
I’m sorry—I shouldn’t have used the word “business.” I meant to say that my father took care of my uncle’s (his brother’s) financial and medical matters, etc.

Is this just an informal arrangement? No guardianship/conservatorship? No durable power of attorney? If there is no legal authority, you probably won't be able to act on her behalf.
I do have a general POA to act on my cousin’s behalf.

I don't want to speak with certainty about Oregon, but I very, very, very much doubt that small claims is going to get into what is essentially a probate matter.
That’s what I was thinking, too.

Oregon does have a very liberal small estate affidavit process. The difficulty may be: 1) you attempting to pursue it on behalf of your cousin, and 2) getting your father to comply.
Do you know off-hand if a POA is enough for me to pursue the process on behalf of my cousin? If you don’t know, no worries—I’m sure I’ll find it in your link below.

Why do you think it would be difficult to get my father to comply (besides the fact that he’s a known scumbag trying to steal money from his developmentally disabled niece)? Is it a problem with the small estate affidavit process or the fact that he has possession of the assets (silver) and there is no real “proof” that it belonged to my uncle other than my father telling my siblings and me about it?

http://landru.leg.state.or.us/ors/114.html

Look for 114.505.
Excellent. Thank you for the link, anteater. I really appreciate the help.
 

anteater

Senior Member
Do you know off-hand if a POA is enough for me to pursue the process on behalf of my cousin?
You would need to look at the POA document. Most POA's would grant that type of authority.

Why do you think it would be difficult to get my father to comply (besides the fact that he’s a known scumbag trying to steal money from his developmentally disabled niece)? Is it a problem with the small estate affidavit process or the fact that he has possession of the assets (silver) and there is no real “proof” that it belonged to my uncle other than my father telling my siblings and me about it?
Well... Sort of all of the above.

Even some financial institutions have qualms about accepting small estate affidavits. Even when state statutes generally contain a "hold harmless" provision if complying with a properly executed affidavit.

Dealing with an individual holding the deceased's personal property? If your father is not one to be impressed by legal documents, it could get messy. You would end up in court trying to make him comply.


By the way, does your father really expect the zombie apocalypse? :D
 
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Siege571

Junior Member
You would need to look at the POA document. Most POA's would grant that type of authority.
OK. It's pretty comprehensive, notarized and all that good stuff. I'll assume for now that it's good to go in this regard. I was just looking at it and remembered that my father was the "witness" for this POA. The irony.

Well... Sort of all of the above.

Even some financial institutions have qualms about accepting small estate affidavits. Even when state statutes generally contain a "hold harmless" provision if complying with a properly executed affidavit.
Got it. Fortunately, I don't think we'll have to deal with any financial institutions in this regard, but it's definitely good to know.

Dealing with an individual holding the deceased's personal property? If your father is not one to be impressed by legal documents, it could get messy. You would end up in court trying to make him comply.
Indeed. By the way, as my brother and sister and I are *completely* the opposite of our father, there's no love lost for our father. He has done a lot of unethical (if not illegal) things in the past, and I knew he would do something like this. My siblings and I will do everything we can to fight our father on our cousin's behalf, so we will go as far as we need to with this, as long as there is some benefit for our cousin and we don't end up spending so much money that it isn't worth it (less than 5K)

By the way, does your father really expect the zombie apocalypse? :D
Well, that's just my way of trying to inject some humor into the situation :D

Growing up, we had to listen to the whole "the world's going to end" survivalist mentality and he's just carried that on. I have no problem with being prepared for disaster--I think it's just good sense. But my father's anxiety level is so high about the whole thing. So yeah--he's got his guns, silver and gold, and freeze-dried food and is hunkered down in an area where the "noo-cue-lerr" fallout won't affect him :rolleyes: So he wants to keep my uncle's silver to pay for a year's worth of food for my cousin (I guess because she needs to "buy her way" into the family?). Good grief. *If* any disaster should happen, he should just take her in and take care of her, for Pete's sake.

My siblings and I got the heck out of Dodge when we were 18 (we are spread across the US), so my father is now the only relative left near my cousin (they live in the same small town in Oregon). Our cousin has lived there for years and doesn't want to move because she loves her job and her friends. As long as we can help her remain independent, I want her to stay where she wants. My sibs and I found out two years ago that she was being conned by a family. It was easy because my cousin in dev. disabled, very trusting, and eager to please. They got her to pay for all their living expenses for a year--they went through the 30K my cousin had in the bank (inheritance from when my cousin's mother died) and put her in another 30K of debt (my sister and I went through the whole process of pressing charges against the family, helping her realize she was being conned, taking care of the creditors, etc--a total nightmare, as you can imagine). And my father sat by and watched it all happen.

So while 5K doesn't sound like a lot, it would really help her. She now has very little savings, but at least, with my help, she is now living within her means and not creating more debt. The 5K would be very handy to have on hand when she needs a new vehicle (which will be sometime soon).
 

softy515

Member
Is she receiving disability payments from SS? Because if so, she can't have to much money in savings anyways.

Just a thought.
 

Siege571

Junior Member
Is she receiving disability payments from SS? Because if so, she can't have to much money in savings anyways.

Just a thought.
Unfortunately, she isn't. We're trying to get that for her because we could get her into a much safer place to live as well as more services. Her father was determined that she would not be "labeled" in any way, and since her mother was a well-loved elementary teacher, my cousin was passed from grade to grade and graduated with a regular diploma. She received no services as a child, and we didn't discover that she wasn't even in "the system" until 2 years ago. We've been able to get her classified as "developmentally disabled" and get her a few services, but we're having to appeal the SSI/SSDI denial.

I keep her money in a checking account with my name on it--she got herself into 30K of debt (with the help of some cons) and took out many (maybe a dozen?) pay day loans. :eek:
 

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