Recourse inquiries pertaining to a Will

[GoBears]

I have what I think will be a few questions, and I truly appreciate the opportunity this forum affords to address these concerns...

I hope I chose the most appropriate forum for this communication. I say that because my grandmother (93 years old) is alive; but we are being informed that the outlook is not exactly positive.

A Will was created a few years back, and it was done so without the knowledge of one of her two daughters (my mother). My grandma, who understands very little of the law and even English, was accompanied by the other daughter (my aunt) and her husband (my uncle). A Will was created, and it was one in which the most desirable of two properties was to go to the daughter in attendance, my aunt. Also at this time, two individuals were selected for control of financial matters (my aunt), and another entrusted to make medical decisions (my uncle) on behalf of my grandma.

A couple of years later, my grandma had been admitted to a convalescence home with a broken hip and dementia. After a recent stroke, she has not been able to swallow, and while all of us are very much against a feeding tube (think Terry Shiavo) because we know she would never want such, the decision-maker (my uncle), a highly religious person, feels that it is the right thing to do. His wife, or my aunt, and all of us do not want this to happen. After much persuasion, he has thus far not requested that the doctors use a feeding tube.

My mom, as you might guess, is just dumb-founded as to how they can have this meeting without her (to create a Will), and on top of that, pick him to make such decisions. It is bad enough to witness the loss of a loved one, but then to have to battle something like this on top it, just makes this very frustrating. My mom finally asked my aunt recently why she wasn't included in that important discussion, and my aunt gave her no response (actually hung-up the phone). It was never brought-up again...

Question 1 - Does my mom have any recourse for being selectively excluded from this meeting? The ramifications to my grandma's health and treatment, and the eventual distribution of her estate have been impacted...

Since my grandma has been in a home for several years, my aunt, with power of attorney, has been collecting rents on her rental property and has been in control of her bank account and finances. Besides the aforementioned odd conditions of the Will creation, unfortunately, there have been several other instances in which my aunt has taken deliberate actions to benefit her situation, and/or that of her family.

There is now reason to believe that she might have been utilizing funds in my grandma's bank account for personal gain, besides paying for expenses related to my grandma, namely her care. We however don't know for sure as we have no reference point as to what was in the bank account, or what's in it now. Based upon past experiences, and her constant focus on money as a central topic of conversation, it is difficult to think otherwise...

Question 2 - What options does my mom have to find-out if funds were inappropriately used, and if that is indeed the case, would she have any recourse?

It is my understanding that one can gift up to 11 or so thousand dollars a year without consequence. There has been some talk about doing that for the grandchildren, me being one of three (my aunt has two children). The reasoning mentioned was to avoid taxation, which doesn't seem right if that is the motivating factor...

Question 3 - Is there some law that prohibits this, especially in the last year, and even days prior to one’s death? I seem to recall a Latin term "gift causa mortis" that deals with this aspect, but after searching the web, I'm not sure...

I find it highly unfortunate that my mind and that of my mom's needs to dwell on such matters at this time...

I thank you for taking the time to read, and respond!

[GoBears]

For some reason I couldn't find the edit button this time to modify the above post...

We are not talking about a Will, but a Trust, if that matters here.

Thanks.

[Mr. Knowitall]

It makes a big difference if it is a trust, as the property (if titled over to the trust) would normally pass to the beneficiaries without going through probate (that is, without court supervision). As your grandmother is still alive, you can try to get a conservator appointed to displace your aunt and uncle's control of her finances, to see that her funds have been properly managed, and to assist her with her financial affairs (including, if she is mentally competent and wishes to do so, revoking provisions or bequests made in a revocable living trust). If your grandmother is of sound mind, she can also revoke the prior power of attorney papers she executed and voluntarily grant somebody else power of attorney to manager her finances and explore these issues. If you are of sound mind, you can make a will - it's your mental competency that matters, not whether you die within a year of drafting a will or trust.

[GoBears]

Thank you for your reply.

At the time of Trust creation, my grandma did have her mental faculities. Given her limited understanding of the law and English, she only understood what was explained to her in her native language though. Now, she has dimentia, and she does not have the means to communicate with us...

1. How does one go about getting a conservator appointed?

2. And is the appointment of a conservator the only means to see if funds have been mis-managed? Would a PI be able to do so, ideally without the knowledge of suspect individual?

It's my understanding that power of attorney can afford the person the ability to gift, but not generally to oneself.

3. Given that there is taxation on the estate, is gifting just prior to death, especially through power of attorney, something illegal or worthy of "red flags"? I'm wondering if this can be construed as "gift causa mortis," which, according to this link, is generally disfavored by the law, and seen as an invasion of the province of Wills:

http://www.pralaw.com/legalresources...asp?article=13

Thank you for the clarification.

[Mr. Knowitall]

The law and procedures for appointing a guardian vary by state. Check with your county probate court.

A competent adult's placement of property into a trust, to be distributed in accord with the terms of the trust, is not the same thing as a person's use of a power of attorney to gift property to herself.

[GoBears]

We will check with the county, thank you.

Can the engagement of the appropriate Private Investigator provide the information as to the inflow and outflow of monies of the bank account in question?

Or, is there any kind of check or safeguard that the power of attorney is being used as it should so that we there won't be a need to employ the services of PI?

Thank you

[Mr. Knowitall]

A private investigator has no special right to access somebody's private banking records. If there is a basis to suspect impropriety, petition the court to order your aunt to account for her use of your grandmother's assets.

[GoBears]

Thanks once again for your assitance.

Without any built-in safeguards to ensure that one is indeed performing as agreed, and only as agreed, it seems that a court of law is the recourse needed to obtain the truth...

This website is a great resource. Thank you.

[GoBears]

..If there is a basis to suspect impropriety, petition the court to order your aunt to account for her use of your grandmother's assets.

Before I ask what should be a final question, I found a helpful website in which there was a section pertaining to 'What are an Agent's obligations to the Principal?' This was mentioned:

Agents must also keep accurate financial records of their activities, and provide complete and periodic accountings for all money and property coming into their possession.

I believe this to be correct in that much of what I've found states the attorney-in-fact is to be held to high fiduciary standards, and must act in the utmost good faith and undivided loyalty toward the principal, and must act in accordance with the highest principals of morality, fidelity, loyalty and fair dealing.

With this understanding, if during the execution of the estate the executor is asked by a heir to reveal the detailed accounting of financial transactions, must that information be provided?

With the response provided earlier, I now realize that petitoning the court is an option here, but I was led to believe the heirs have a right to see the details of such account management, upon request. I truly appreciate the clarification. Thanks.

[Mr. Knowitall]

The executor must keep records in accord with state law, and can be ordered to produce those records by the court. Whether or not the heirs have the right to demand that the executor produce an accounting without going through the court? That's going to be a matter of state law.