Dear Moneyist,
My niece took $60,000 of my late father’s money after she got power of attorney while he was on morphine. He died two weeks later. My sister’s name was on his bank account and she took money out of the bank. My nephew’s wife was administering the morphine to him, apparently giving him too much so much that they couldn’t take him to the doctor, so she took him to the bank instead.
I know nothing is black and white, but I can’t let them get away with this because he was my dad and they have no right to his money. What’s more, my sister already has money, owns her own business. She is, in my opinion, money hungry and is now spending the money frivolously. I actually need the money. I just can’t sit around and let her think that I’m not going to do nothing about it.
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I live in California. He died three months ago and we were never close, but that doesn’t mean I don’t deserve what he had left. My father didn’t do anything for me while he was alive, so this is one way he can make amends for that. If there’s any way you could point me in a direction where I could challenge what they’ve done with my father’s bank account, I would appreciate that.
Cheated daughter
Dear Daughter,
You don’t mention if your father had a will or not. If he did not have a will when he died, you are certainly entitled — by law — to your share of his estate. In California, if your father had no living spouse, his living children would inherit everything. If you have just one sibling, that would mean splitting his estate 50/50. In this case, a lawyer would likely work with you on a contingency basis, agreeing to a percentage of what he or she helps you get back in court.
I’m not going to get into who did what when your father was alive or how you know that he had $60,000 in his bank account. Frankly, that’s none of my business. I just want you to know your rights and that doing nothing is a bad option. If he did leave a will and he was not of sound mind and he was being administered morphine illegally, you may even have a criminal case that goes beyond probate. First off, contact the bank in question with your concerns. Then find a lawyer.
Also see: His wife surprised him with $220,000 in student loans — here’s how they tackled $480,000 in debt
An executor is simply someone who is tasked with carrying out your parents’ wishes. A power of attorney, on the other hand, can either take care of your health and welfare or finances, or both. He or she makes decisions about a person’s finances, and can sell a home and withdraw money from your bank account. You can file a petition with the probate court to challenge your niece’s status as power of attorney (and executor of his will, if one exists). A lawyer can help you with that.
“Proving an individual lacked capacity is much harder once the potentially incapacitated individual has passed away,” according to Blake Harris, an attorney at Mile High Estate Planning in Denver, Colo. where he assists clients with wills and trusts, asset protection, and probate. In this case, as I said, the presence of morphine and your father’s doctor’s report and cause of death should (and I say this as an independent observer) help rather than hinder your case.
It sounds like there are too many people involved in your father’s financial life and medical issues. The sooner you get started, the better. A petition for probate must be filed within 30 days after learning of your father’s death in California, but a lawyer can advise you on any other options. If there is a will, you are better off challenging it sooner rather than later. You don’t say what your father’s estate was worth. I’m assuming it’s worth more than that $60,000 in his bank account.
“Once a will is admitted to probate, and thereby deemed valid, you still have one last chance to contest the will. If you file a petition with the court within 120 days after the probate is opened, you can ask the court to revoke its order admitted the will to probate,” according to Albertson & Davidson, a law firm with several offices in California. You obviously need to state your legal grounds, but an estate lawyer can help you with that.
Good luck.
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