Siblings are taking things bequeathed to others. Is this legal?

Tell Hubby to either give it up or go to New York and close the estate.

Speaking of relatives taking advantage...my dear friend's sister took her mother to an attorney and changed the will into a trust leaving everything to herself...sister got nothing...the mom just smiles when she meets people...I knew the mom for 30 years she did not know me before she went to the attorney...When we contacted attorney to take the sister to court, he said it cost too much $ up front for us to afford...the sister now lives in Florida bought a new beautiful boat! The other sister had cancer and is living in a trailer.

husband was named executor of his parents will, and lives in California, while the 7 siblings live where his parents lived in New York? He knew he was Executor, his dad told him, and yet no one gave him the Will, Accounts, never said a word to him, except his sister who was handling the accounts,just stated that as long as everyone agrees with her, there wont be a problem. two years later, my husband gets a letter from an attorney, stating that he hasn't done his job as executor, and want him to rescind it to his younger brother, who has sole ownership of parents home, since then he has taken money out of estate to fix up parents home, without permission of anyone, and he says he was doing it to sell it, and but took like 20K out of accounts to do this with, and paying himself for the work, which was not necessary for the sale. Once the house is sold, he is suppose to split with all siblings, he hasn't done anything yet, this 4 plus years, and he lets his kids, nephews & nieces live there rent free. Is this legal? It has caused a huge hurt in our family, the way they handled it, they hired the attorney to send the recision to my husband, and then said they had no idea about it.

Plain & simple---they are stealing your mother's assets. Transferring money from your mother's bank account into her own account without a written consent from her is illegal. Even though your sister may be POA, she still can't take money she is not entitled to. (You say you're co-durable POA, but there can only be one POA, & then a secondary POA if the primary POA is unable to carry out their duties. Unless you're the primary POA, your sister is the primary POA. Read the documents carefully.) The same thing holds true for tangible assets---because she has dementia that has been diagnosed by a physician (hopefully), your mother is no longer capable of making informed decisions, so even if they claim she agreed to "gift" them with something, it's bogus. Plus---you can only give a certain amount of money or assets to someone annually without tax ramifications. Children cannot take things because they "don't agree" with your mother about who should get the tangible items. Your siblings should go through your mother's attorney if they want something of hers---they're not allowed to just take stuff especially if they've been bequeathed to other people.

This is how I'd deal with it: I would contact my siblings & tell them that unless they return the tangible items, and unless your sister moves the money back into your mother's account within 24 hours, you are going to file a police report & report it to the lawyer that drafted your mother's will. You will proceed with filing charges against your sister for stealing money---depending on what state you live in & how much she moved, it could be a felony for grand larceny---and file charges against your other siblings for theft as well. That should be enough impetus for them to return the items & for your sister to return the money. If they don't return the items & your sister doesn't move the money back, proceed with pressing charges. You could file a civil lawsuit, but it would take a very long time to work its way through the courts. Criminal charges are far more intimidating & far quicker.

What I am a little confused about is why, if your sister is primary POA, she did not get a copy of your mother's will. If your mother trusted her with her financial matters to make her POA, it seems odd that she wouldn't get a copy of the will. Why would your mother make your sister POA if she didn't trust her? Perhaps you need to find out if the transfer of money was for a specific reason, not just because she wanted the money. Taking tangible items is just being greedy.

Does your mother live by herself, or is she in a long term care facility, assisted living or is one of your siblings taking care of her?

Is the sister who's moving money to her own account a co-POA? If yes, then there's not much you can do there. (I'm assuming that's the case.) If it were me, since my sister (co-POA) was moving mom's money into her own name, I would seize the REST of mom's money and make it impossible for her to access.

As to the family coming in like vultures and taking her property, that's theft. Pure and simple. I would change the locks on the doors (at mom's expense), install a house alarm, and have the service call the cops if someone came in.

Who was the jake who gave out copies of your mom's will? Jesus. What an insult to your mother. When she made up her last will and testament, she expected those involved to hold it private UNTIL SHE DIED.

What a sorry bunch.

Not to condone looters, but I can see a situation where Mom could be giving away things to family members that she has forgotten she promised or bequeathed to others. And if those family members haven't been around her much lately, they may not realize how far the dementia has gone, and just accept that dear Mom or Grandma wants them to have the item. Now, the $17k is a bit much to swallow, but I can see the household items being given away in this manner without assuming people are being vultures.

Maggie, NYS allows joint POAs as I understand, requiring that they ONLY act together. We had a situation in recent years where my siblings thought they forced my father into agreeing to assign another as full POA. Dad considered appointing one sibling and his wife as joint POAs, but decided against it when he realized they would have full access to his assets. He doesn't want anyone but me to know his assets.

In the course of discussion, that sibling insisted either of them could write checks without the other signing because the bank wouldn't check on the signatures. They denied the need to act jointly. I have a limited POA which covers virtually anything my Dad needs, and I'm the local one who also solely cares for him.

The bankers I spoke with would not recognize multiple POAs, and my Dad had wanted mine to be the only one for him all along.

Family friction resulted when I identified numerous family abuses and took measures to stop them.

At the end of the day it's just stuff. Having gone through the heartache of a sibling that stole everything and watched in disgust as aunts & uncles pillaged my grandmother's estate while she was in assisted living I've come to terms with the fact that money and stuff motivates people to behave horribly when they should be focusing on more important things like caring for their loved one and each other through a hard time. Dementia is not an immediate death sentence; it is a progressive illness that either brings families together, or in cases like yours creates an opportunity to act badly and "even scores". Destroying a family bond over money or possessions is a sad thing - at some fundamental level people who behave in this way are flawed in a way you may not be able to understand. They may act out or try to make your life hell - get help soon in dealing with the problem.

You will need to take charge and go forward on the assumption that a diagnosis of dementia will not rule out that your mother will live a long time. Those years can be quality years for her and those who love her be they family, friends and people who you may not meet until further along in her illness who will care for her too.

Handle the theft of assets without letting familial baggage get in the way - a person who would loot their mother's bank account is unlikely to stop by to change her diapers or write a check for all the expenses that will pile up as you care for her. Handle the theft of possessions the same way and get these items returned or else. She deserves to be able to see, touch or own her property until the end. It is heartbreaking to know that items she may miss most have a story or history she knows about but her kids don't.

For your part you have a hard job will have to put aside emotions and remember that you are acting on your mom's behalf - and that it will be difficult and very painful if there is a rift in the family. I found this site and the support from other caregivers to be lifesavers for those days I was blue, drained or had a good day I wanted to share. Reading what others went through I learned so much and am still humbled that all of us on this site have created though our postings a place that is not family but still a comfort and place we can ask anything. I've laughed, cried and gained much wisdom in the years since I started caring - I hope you will stay on this site and wish you luck.

make an example of the worst offender by bequeathing them the gmc tire tool mentioned in the will , in advance ..

pamstegman, we did appear before a judge with our attorney. Mom was with us and the judge had some questions of her, then us. He reviewed documents from the physicians and the family trust. Then, we stood and took an oath of guardianship and the court order was then signed by the judge and recorded.

The person can certainly nominate someone for Guardian. But only a Judge can actually appoint them. It's a court order, signed by the Judge.

Looks like I goofed, twice. I read Lisa's statement that

"they didn't take anything already bequeathed to them" and actually misread it to read that they didn't take anything not already bequeathed to them. The inference was my error.

I thought that statement clarified the statement in the post title.

Looks like I made a mistake. Jeanne, you're right. If the items weren't bequeathed and Mom didn't otherwise tell them they could have them, it was inappropriate to take them.

Too many "whoops" for today. Time to retire.

A bequeathed item still belongs to the mother UNTIL HER DEATH. Taking it "early" is stealing. If mother would happen to need some of those assets before she dies they will do her no good if they are already gone.

And these sibs are not taking their own inheritance -- they are taking things Mom had designated for others.

I missed the post about the unauthorized $17K transfer. That definitely is inappropriate. If it wasn't a bequest that your sister took prematurely, I do think it's a criminal charge.

I'm glad you corrected the situation and hope for your sake that your siblings have learned a lesson and don't repeat their inappropriate behavior.

This must be very distressing to see such behavior.

If they didn't take anything that wasn't bequeathed to them, I'm not sure how the issue of conversion arises. But the fact that they didn't makes it somewhat simpler, legally, but not emotionally.

I think they've given you a glimpse of what their attitudes are, that they couldn't wait for your mother's death to begin taking what they would inherit.

It's a sad situation, no question, and I can understand your hurt. I experienced something similar when my sister died. It was a real shock and wake-up call. I try to think in retrospect though that I now know what will happen when my father dies, so I have advance notice on how to prepare for and deal with it.

Try thinking of yourself not as a daughter but as someone who's handling your mother's affairs as a professional; make the connection dispassionate, view your siblings as heirs and not siblings. Distance yourself from them emotionally, don't think about them or worry about them. They're going to pursue their own interests regardless. Concentrate on providing and getting quality time with your mother.

Sorry it has to be this way; sometimes families can really be a disappointment.

Also, several weeks ago my sister moved over $17,000 from my mother's bank account to her personal account in another town. I had to threaten to file charges then for her to return the money. Since then, I have invested the money so it is better protected and remains at Mom's disposal in case it is needed.

From what I know now, they took some diamond jewelry and a few antiques. Funny, they didn't take anything already bequeathed to them. They trusted I wouldn't take these things. I feel like when I bury my mother I am burying my family, but I feel so hurt, angry and betrayed at their behavior I cannot imagine any interactions with them after we settle her estate and it is not mandatory..

Maggie, you're quite welcome. It's a chance for me to feel as if I'm still working again! And law is always so humbling...just when I think I've figured something out, I realize there are always contingencies and the path to a final answer can be so convoluted.

Lisa, it sounds as if the attorney breached the requests of your mother to have her Will remain confidential.

Still, I don't think it's unusual for the proposed Trustees to be provided with copies of the Trust prior to death, as often one or more of the Trustees accompanies the parent to the legal planning sessions and execution and leaves with conformed copies of the documentation.

I'm going to suggest consideration of an alternate plan than pressing conversion charges against your siblings. But first, how much property has been converted? Was it real property, personal possessions, or financial property?

If it's a matter of taking some furniture, dishes, or things like that, you might want to balance the potential rewards of recover against the aggravation you and your mother will face and ask if it's worth it to go through that when you're both already stressed.

If it's a matter of property or financial converion, and pilfering of your mother's assets, that's a different story.

In the meantime, you might ask the attorney if you have the authority to change the locks on your mother's house to prevent any further "conversion."

This is a sad situation. I wish I could offer some condolences. It's unfortunate how people don't come together at times when they really should.

GardenArtist!! Thank you so much!! Soo helpful. "We don't know what we don't know until we know it." Thanks again!

Sorry for the repeat. I thought I was only correcting my previous post.

After my Dad passed away, I took the recommendation of a couple of friends and contacted a lawyer they had used in family law to update the family trust and assist with some legalities after Dad's death. All three of my parents children are named as successor trustees after Mom passes. Regardless if I agreed with them or not, my parents wishes were for their Last Wills to remain confidential until after they had passed. This lawyer updated the family trust and then mailed copies of the trust and Mom's Last Will and Testament to Mom and each of her children. Instead of honoring her wishes, "sh_t hit the fan" and the drama and challenges to her Last Will have never stopped - even after two doctors have diagnosed her with severe dementia and legally, nothing can now be changed. Also, we have gone to court and taken an oath as Co-Guardians. The provisions of the trust named both my sister and me as Co-POA. My brother lives out of state.....but still made the trip to empty Mom's house of any bequeaths he did not agree with:(. It is so hard for me to reconcile pressing charges of conversion on my siblings. This is the advice another lawyer has given me in just the past few hours. What a sad state of affairs and the constant struggle for control is making my 90 year old mother a nervous wreck. I certainly would never recommend Co-POA or Co-Guardianship. It was simply a way for Mom not to have to choose one child over the other, but she is being forced to make that choice now almost daily. I'm trying to decide what I am morally and legally responsible to do and what I should let pass. Thank you for your comments. They are informative and very helpful.

After my Dad passed away, I took the recommendation of a couple of friends and contacted a lawyer they had used in family lase to update the family trust and assist with some legalities after Dad's death. All three of my parents children are named as successor trustees after Mom passes. Regardless if I agreed with them or not, my parents wishes were for their Last Wills to remain confidential until after they had passed. This lawyer updated the family trust and then mailed copies of the trust and Mom's Last Will and Testament to Mom and each of her children. Instead of honoring her wishes, sh_t hit the fan and the drama and challenges to her Last Will have never stopped - even after two doctors have diagnosed her with severe dementia and legally, nothing can now be changed. Also, we have gone to court and taken an oath as Co-Guardians. The provisions of the trust named both my sister and me as Co-POA. My brother lives out of state.....but still made the trip to empty Mom's house of any bequeath he did not agree with:(. It is so hard for me to reconcile pressing charges of conversion on my siblings. This is the advice another lawyer has given me in just the past few hours. What a sad state of affairs and the constant struggle for control is making my 90 year old mother a nervous wreck. Thank you for your comments. They are informative and very helpful.

Today is becoming a day of "whoopses".

And we really need an edit and delete function for our posts.

After reading the first paragraph over again and again, I now question my interpretion, so I'm deleting these conclusions:

"So it appears as though a "non statutory" "long form" POA is required in order to name more than one holder, under this particular statutory section.

However, I didn't check out Articles III or IV as referenced in (a) above. There may be other restrictions in those sections."

Sorry.

Maggie, curiosity got the better of me. Here's the Illinois statutory section on co-powers of attorney:

"ESTATES
(755 ILCS 45/) Illinois Power of Attorney Act.

(755 ILCS 45/2-10.5)
Sec. 2-10.5. Co-agents.
(a) Co-agents may not be named by a principal in a statutory short form power of attorney for property under Article III or a statutory short form power of attorney for health care under Article IV. In the event that co-agents are named in any other form of power of attorney, then the provisions of this Section shall govern the use and acceptance of co-agency designations.
(b) Unless the power of attorney or this Section otherwise provides, authority granted to 2 or more co-agents is exercisable only by their majority consent. However, if prompt action is required to accomplish the purposes of the power of attorney or to avoid irreparable injury to the principal's interests and an agent is unavailable because of absence, illness, or other temporary incapacity, the other agent or agents may act for the principal."

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?ActID=2113&ChapterID=60&SeqStart=1600000&SeqEnd=2100000


So it appears as though a "non statutory" "long form" POA is required in order to name more than one holder, under this particular statutory section.

However, I didn't check out Articles III or IV as referenced in (a) above. There may be other restrictions in those sections.

Further, majority consent is required except under exigent circumstances. Interesting.

These excerpts illustrate why these kinds of granting documents need to be prepared by attorneys, and not from on-line sites. If there are other restrictions under different articles, there may be invalidation clauses or other issues raised that could interfere with someone's use of his/her powers at a critical time.

Qualifications: I haven't checked any case law to determine if there are interpretations of this statute.

Forgot to address your queries...

It's interesting that I never had any trouble with banks, other than with the equity line application issues and then I just eliminated them and moved on to another bank.

But yes, I can understand the difficulty of dealing with two people, especially if they don't agree.

I haven't checked to determine if co-authority is authorized in Michigan and not in Illinois, but I might, just out of curiosity.

Maggie, just FYI, here's the wording:

"I ... hereby appoint the survivors or survivor of [Garden Artist] and [Garden Artist's sister] my true and lawful co-attorneys or attorney, as the case may be ....

"The signature of either of the co-attorneys shall be sufficient for the exercise of any power reserved to the attorney [person granting the power of attorney] under this Durable Power of Attorney."

Since there have been questions on the POA and guardianship issues, I checked mine and was surprised to realize that the one drafted along with the Will, Trust and ancillary documents also contains an appointment of guardianship, which I had thought had to be obtained through a court proceeding.

(Can I plead ignorance since I haven't had to use these documents for several years and because I didn't expect that guardianship would be an issue, given the number of successor attorneys and trustees identified in Dad's dox??)

My father's DPOA has this clause (which follows a listing of the powers granted under the DPOA):

"In the event such appointment shall be required, I nominate and appoint the person named above as my attorney to act as guardian of and as conservator over my estate."

(It should actually have identified both co-holders.)

I didn't even realize there was that guardianship/conservatorship appointment clause. I don't anticipate any challenge, but I'm thinking if someone ever did, that clause should squelch any challenges.

I'm wondering now though if others here who are guardians are recipients of DPOAs with guardianship appointments.
I know Pam Stegman holds a guardianship for her sister but don't know of others who might.

I take your word for it, Garden Artist. The only POA's I've seen name an agent and successor agent and specifically state that only one may act at a time - not both. It could be that's Illinois -- or it could be that it's a bit unusual. I can think of nothing more confusing for a bank than if two people are authorized to make changes on a loved one's account at the same time. What if they disagree? (Know what I mean?)

I could see it happening cooperatively...but Jeeze, it's hard enough to get banks to honor ONE. Ha! ;)

Maggie, I haven't seen powers of attorney specifically titled "co-durable POA", but they exist. Was it the title of "co-durable POA" or the idea of the joint authority that you questioned?

My father and I held the power jointly for my sister, and my sister and I held the power jointly for my father.

I also am co-PR under the Will and Co-Trustee under the Living Trustss.

I think it's the title that seems odd, but sharing the power and responsibilities certainly isn't.

As to a Co-guardianship, I do believe I worked on a case in which that was the case - an attorney and probably an accountant, but that would have been over 10 years ago and I don't remember all the specifics.

Actually, there is some benefit because like the governmental balance of powers, the two holders will need work together, and will THEORETICALLY help to ensure that the terms of the authority are met and/or that neither mishandles the authority.

But as we've seen here, it can also mean that there can still be friction within the family.

I have never heard of a co-durable power of attorney nor co-guardianship. You actually went to court to get that co-guardianship? That's the only way you could have it. Please read your power of attorney over again. Normally, it will name an agent and a successor agent. That's not the same as "co-POA". The named agent is in charge until she can't or won't be anymore.

Here is what I'm envisioning. SisX realizes that CousinY is going to get the valuable painting in the dining room upon Mom's death. She visits Mom and goes on and on about how much that wonderful painting in the dining room has always meant to her. She'd love it in her family room. Mom (who perhaps can't remember the painting at all or to whom she intended it to go) says "go ahead an take it, dear."

Is that about the size of it?

Depleting Mom's assets while she is still alive may make it harder for her to meet her own care needs and if she needs to apply for Medicaid this might be considered "gifting" and result in penalties. So it isn't just about cheating CousinY out of a future inheritance, it is harming Mom now.

As her guardian you have a responsibility to protect her financial interests. If a serious heart-to-heart with your siblings cannot resolve this in Mom's best interests, you need to take legal action.