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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 3170
Experience:  Wills, Trusts, Probate & other Estate Matters
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My aunt lived in Ohio and had her attorney prepare a POA

Customer Question

My aunt lived in Ohio and had her attorney prepare a POA appointing the attorney and two nephews ("Bob" and "Jim") who lived in Wisconsin as her POA's. Bob discovered my aunt was giving money to another family member wanted to stop it. My aunts attorney wrote Bob a letter saying she could sons her money how she wanted. Bob fired aunts attorney, got a new one who revoked original POA and prepared a new one for Bob. Aunt told me Bob sold her Ma Bell stock. She was very upset about it. I went to visit but could find nothing about the sale in her files. Bob petitioned court to appoint a guardian and a former Ohio judge was appointed.
I went to visit my aunt on numerous occasions. The guardian never went to meet with her and bob never came back to see her or call before she died. At probate, it was determined that several of her accounts had been changed to POD and/or TOD. Probate of the will is almost complete. I told the executor and her attorney about these funds. The executor has no interest in getting a fiduciary accounting from the POA and advise the court my aunt was railroads by Bob and the accounts should be request the accounts be put through probate. Would filing a motion in the probate court under ORC 1337 be appropriate? Or would Court of Common Pleas have jurisdiction? To file under.that section, would you file a Motion Requesting Fiduciary's Account under POA?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Dwayne B. replied 1 year ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification. Also, I can only answer the questions you specifically ask and based on the facts that you give so please be sure that you ask the questions you want to ask and provide all necessary facts.

At this point you have to file everything in the probate court because it has exclusive jurisdiction over the estate and all matters pertaining to the estate. However, if you decide to pursue this you would be very well advised to use an attorney. Probate is extremely complicated, based on antiquated laws and principles, and seldom does a pro se manage to contest matters correctly and thus a judge has no choice but to deny their motions. Based on your facts it would appear you have an extremely good case to challenge the actions of the POA but you don't want to lose that right because of a procedural mistake.

Customer: replied 1 year ago.
I agree. My problem - and bob of course is aware - that I do not have the money for an attorney. My aunt left her estate to her two brothers who are over 90 and myself - because I took care of my dad (her brother) for the last 15 years and lost everything in the process because I couldn't work.
I know some types of cases will be taken on contingency.....would this be one? The two accounts he stole total approx. $300,000. What do you think?
In the alternative, what would be a attorney's retainer amount for this type of case?
I can save money to hire an attorney but I need time. Once the will is finalized and probate is complete, can I still file under that section? Is there a statue of limitations?
Customer: replied 1 year ago.
BTW, I read that the executor is responsible (or should be) in making sure something like this is handled tor the benefit of the estate and its beneficiaries. I spoke to the executor and her attorney who is handling the probate....he didn't want to get into all that and I guess she feels the same. She was left the house and its contents so she had no vested interest in the stolen accounts. She is fully aware several accounts disappeared but wants to stay out of It. Like I said, it won't benefit her any. Is there a way to pressure them .....meaning the executrix and her attorney .....to pursue this matter?
Expert:  Dwayne B. replied 1 year ago.

I understand about the lack of finances. However, if you can come up with the money through some type of short term loan or possibly credit cards then you will likely be able to ask for reimbursement from the estate.

It's also possible that someone will take the case on a % although it's not easy to find someone just because most probate attorneys don't work that way. What you may want to do is go to www.lawyers.com and search for an attorney that does Civil Litigation and then se if they also do probate litigation and discuss it with them. That site doesn't have a section for probate litigation since there are very few attorneys that "specialize" in that area.

As far as what the retainer will be I couldn't even guess since it varies so much based on geography, experience of the attorney, etc. Most lawyers won't charge you just for the office visit though so it's worth meeting with one or two.

I think there will be a problem filing if it gets out of probate court since that court is really the one with jurisdiction over these matters. In order for you to pursue it you would have to actually "inherit" the right to the cause of action otherwise you wouldn't have standing to bring a lawsuit and it wouldn't be guaranteed even then. There will be a statute of limitations and it will most likely be four years but you need a thorough examination of the facts to know for sure because different causes of action have different lengths of time and, in addition, the facts can sometimes make a difference. I don't like to give hard and fast answers to this kind of question because I can't do a comprehensive interview due to the limitations of this type of forum.

Expert:  Dwayne B. replied 1 year ago.

There's no good way to pressure the executor or the attorney without an attorney yourself, unfortunately.

Customer: replied 1 year ago.
I don't mean pressure in a bad way....I just meant by letting her know its her responsibility...or at keast that's what I thought I read. Can't she be held personally liable for failing or refusing to make sure all assets of the estate are included? Especially if someone tells her about it?
Expert:  Dwayne B. replied 1 year ago.

Yes, it is possible that they could be held responsible for not "doing their job" as the executor and looking out for the estate. However, it's not quite as easy as it sounds because the executor has to weight the cost of litigation, the chances of success, etc. and you can assume they will claim they discussed it with the estate attorney and made the decision not to pursue it due to the cost involved or something along those lines. Again, this is the area where your own attorney comes into play since they can argue that it is a valid case, explain why they think so, etc.