Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
Many times, situations where you suspect that the person holding a power of attorney has acted improperly wind up being handled after a death has occurred. Many people are not aware of this, but the power of attorney terminates upon death. From that point forward, the only way to deal with the deceased’s assets is through the probate process. Often, one of the first obstacles to overcome is a complete lack of information about what the holder of the power of attorney has done.
One of the best ways to get information is through the estate process in probate court. There are several ways to start that process, depending on the situation.
First, if you believe the deceased may have had a will, you can ask the court to order the person you think is in possession of the will to deliver it to the probate court. Once the will has been delivered, you can see what it says and determine whether it looks like a legitimate will or not. That will allow you to determine whether to challenge it or support it.
Second, if you know that the deceased did not have a will, then you can go to court to open the estate and nominate yourself as administrator. Often in situations where there has been a power of attorney involved and you suspect foul play, the prior holder of the power of attorney will challenge your request and a fight over control of the estate will ensue. That is not necessarily a bad thing, because during that legal battle, you will have access to discovery tools under the Civil Practice Act that will allow you to obtain information about the deceased’s assets, as well as information about any transfers that the holder of the power of attorney may have made. Once you have that information, you can decide whether it is worth it to continue to fight for control or not.
Finally, third, if there is an emergency in the case, such as assets being stolen, real estate being sold or foreclosed upon, then it may be appropriate to ask the court for short term emergency powers that are given under temporary letters of administration. In this case, it does not matter whether there is a will or not. Although very little power is conferred upon the temporary administrator, it is enough to stop a third party from harming the estate, and to obtain information about estate assets and prior transactions.
Once you have the information about what has previously occurred in the estate, you can find out what the person holding the power of attorney has done. If that person took money or property from the deceased or wasted their assets, then you can pursue them for the harm they have done. This can include changing the names of beneficiaries on beneficiary designated accounts (such as life insurance or retirement accounts), or transferring property away, among other things.
As you can imagine, these types of situations and actions in court are complicated. I would not recommend that you undertake them without a qualified probate law firm to assist you.
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