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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 3191
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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My father passed away and in his will everything was left to

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My father passed away and in his will everything was left to my Mother and my eldest brother was named executor, if he was unable to do so I was then to be executor. My brother verbally told me he could not be the executor due to his many health issues and disabilities and asked if I would do it. I said yes and also have POA for my mother as she is legally blind and unable to make sound financial decisions. My Father passed in March. We moved sensitive costly items from my mother's home so she could put the house up for sale and not have to worry about her safety. We brought these items to my home because we have space, alarm system and dogs, as a temporary solution until we could determine how to liquidate these items as my Father invested in these for my Mother's retirement. 2 weeks ago I told my mom I had a reputable person that could appraise these items. I was told that my brother wanted the collection. I advised my Mom that this is not what her husband intended should he pass and I said I wanted her to reconsider and was opposed to same since this would be income she would not have. My brother has since then called and made unfounded accusations, coached my mother on saying she did not understand what was happening and wants to now take over and says he is going to have me arrested for a felony. Please advise. I am in Florida and we are in different counties.
Submitted: 9 months ago.
Category: Estate Law
Expert:  LegalGems replied 9 months ago.

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! I am very sorry to hear of your recent loss, compounded by these issues with your brother. Generally, when an individual is appointed executor in the will, unless he officially renounces this (in writing), the courts will assume that the named executor intends to proceed as executor. However, you mention your father passed in March; by now some type of probate proceeding should have been filed, with Letters of Administration appointing a person - either your brother or yourself- as executor. If that has not been done, a petition for probate should be filed.

LegalGems :

Since you have your mother's POA, you are bound by the "fiduciary duty" rules - i.e. acting in the utmost care and with due diligence to protect your mother's property. As long as property was not sold there would be no liability for removing the property, particularly since everyone consented to it. In the future, given the tenuous relationship with your brother (and his inconsistencies) it would be best to get any agreements in writing.

LegalGems :

The fact that the house is being up for sale would cause most judges to believe that valuable property was removed for a valid reason ("staging" is quite common when a house is sold also, which requires that personal items (i.e. clutter, property of a sentimental nature etc) be removed so the house appears larger (the less items the better is the idea).

LegalGems :

The will should have stated who would receive your father's personal property. If your mother had an ownership interest, she would retain that interest, whereas your father's interest would go via the will (often times the residual clause - for items not specifically mentioned).

Customer: I really do not care if he wants to be executor right now. My concern is him trying to arrest me. I do not want these items and was just looking out for my mom's best interest and safety. I'm so hurt that I just bring him these items, take me off of POA have my mom redo her beneficiary assignments and turn it over. I cannot deal with the stress over stupid material things
LegalGems :

Often times, a person will use their position of trust to gain an unfair advantage over a senior citizen (manipulation) and the legal term is undue influence. If there is "coaching" going on and your mother changes her estate plan based on any undue influence, generally the will/trust can be challenged.

LegalGems :

I just saw your last post. I am so sorry to hear of this. I am sure it is devastating. If your mom is of sound mind, you may want to consider going to mediation with her, or her and your brother. Mediation is like counseling, but from a legal perspective, and it can be very helpful in family legal disputes. It is unlikely that he can have you arrested for a couple of reasons - 1. You removed the property with consent; 2. generally the police will tell the person in matters such as this to bring a civil action, as most police are reluctant to get involved and press criminal charges when there is a civil remedy.

Customer: My mom is now saying she was under duress and did not know what I was doing but saw me load the items. We did however have several conversations but she has somehow forgot. I am the only healthy sibling that has driven 7 hours round trip almost every weekend to help along with my husband. Can I be held liable if she maintains she did not consent but saw me pack them and leave with them, by the way these are guns, of which any my brother expressed he wanted we brought to him
LegalGems :

In situations it will come down to a "he said she said". But if you can document (ie gas receipts, phone records) that this occurred over several weekends, it will help, as the others would be hard pressed to say why they allowed you continued access to "steal" these things. And if it comes down to it, her capacity will be questioned (requiring medical records/testimony) which can result in a conservatorship/guardianship, particularly if the court feels that there is undue influence.

LegalGems :

I am not familiar with gun laws as that would be a different forum (civil rights, criminal law) but here is some information on gun ownership/possession for your review: http://www.nraila.org/gun-laws/state-laws/florida.aspx

Customer: Thank you, XXXXX XXXXX a heart attack the day after my father passed and I took care of her and my daughter lived with her for 6 months to make sure she was ok. I bought her life alert, a new landline and cell phone all of which I am paying for. Do you think that would help me defend my family? That is my concern now, my husband and kids. I of course want my mom to be taken care of but my brother seems to think he can do a better job,
LegalGems :

Absolutely. They will also interview family friends, caregiver providers etc. If you can show that you consistently have had the best interests of your mom in mind, that is what matters. It's too bad this is happening, as I'm sure when your mom is lucid this is heart wrenching. You may want to hire an attorney to advise the brother to not contact the minor, as that is not appropriate and is harassment. However, that may escalate things, so I would urge you to consider mediation - I've seen situations get resolved because it teaches each side to look at it from the other's perspective, and the mediator/facilitator tries to find a common ground from which to work.

LegalGems :

It's also not adversarial (as opposed to a lawsuit).

Customer: Thank you so much!
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 3191
Experience: Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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