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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55308
Experience:  29 years of experience practicing law, including tax and estate planning.
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I am a Executor of a Will and a Successor Trustee of a

Customer Question

I am a Executor of a Will and a Successor Trustee of a Trust. I am also 67 years old, married 46 years and retired 7yrs and hope to live long enough to see this through. In my opinion was very poorly designated and needs my personal guidance to cut the
pie. This confounds me. Mothers business was all handled by a nephew with POA. When she passed I was handed folders to see for the very first time. My cousins work was done, mine began. In the Will one part says: "I leave all of my property that is not specifically
mentioned in the "Jane Doe Living Trust" to IE: Son John Doe (me), or if he fails to survive me, IE: Son/sibling xx. The following are my concerns and in need to be lawfully and morally compliant. The last Trust document is not available or found as yet. A
earlier Trust which I know was re-written according to my cousin (POA) does exist some where I hope, the 1st is 15 yrs old and it's holdings have been eviscerated of it's original Real Estate Foot print by Sale of the deceased, (Real Estate being the only
property left) personal items for 13 Specific Beneficiaries disposed of previous and is therefore not satisfy-able in any way shape or form even in the terms of the old Trust to comply.. So what do I do? Make a personal choice on generosity with 3 other siblings
after the Real Estate is sold? One of whom, my older sister who may not survive long enough for the home to even be sold. Listed now for almost 6 mos due to the need of money for my mothers assisted living costs is a Red Herring with a Spiral Staircase. Purchase
the Real Estate myself and re do another Trust knowing what is left now, to be carried out should I not survive it? I live in Michigan and need to head with some direction, should I just get local council?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Richard replied 1 year ago.

Hi there. My name is ***** ***** I look forward to helping you.

What you want to avoid here is any claim that you are breaching your fiduciary to either your mother as the decedent or to any of the other beneficiaries. The will is pretty clear, if the property is not owned by the trust, it goes to you since you survived her. So, the question becomes what is owned by the trust. And, herein lies the problem because you can't be sure exactly what trust agreement is in place. When that occurs, to protect yourself, your safest bet is to file a petition with the court and ask the court to rule on the situation given the facts that exist. Once the court rules, you are then protected from any liability by simply following the court's order. Anything short of asking the court to rule simply leaves you exposed to a potential suit by a potential beneficiary.

Thank you so much for allowing me to help you with your questions. I have done my best to provide information which fully addresses your question. If you have any follow up questions, please ask! If I have fully answered your question(s) to your satisfaction, I would appreciate you rating my service as OK, Good or Excellent (hopefully Good or Excellent). I thank you in advance for taking the time to provide me a positive rating!

Customer: replied 1 year ago.
All of mothers Real Estate has been in a Trust for decades and is listed in the Register of Deeds office as "Jane Doe" Trust and shows in the Platt book as such, which is how I know and how I found out it even existed. As she deteriorated all her accounts were closed that could be located by my cousin a year ago. It is a much smaller Trust now as property was disposed of from the Trust and no contents remained to prepare it for sale prior to her passing per the POA cousin.
Customer: replied 1 year ago.
For instance 15yrs ago my sister was to get a residence up to the cost of $40,000. She herself is in assisted living now and bed ridden and has been for yrs now. She would be unable to be moved to her own dwelling, she moved from one to survive as she is now?
Expert:  Richard replied 1 year ago.

Thanks for your response. It sounds as if the POA cousin may have breached his fiduciary duty to your mother. Being a POA doesn't mean that your mom's estate is was your cousin's personal piggy bank! A person acting under a Durable Power of Attorney becomes the agent of the principal who appointed him or her. As agent, that person is what the law calls a “fiduciary.” This means that person has a duty to act in the highest good faith for the principal’s benefit. It does not mean that the person can simply use the assets of the principal for the agent's own benefit. In your situation, I would put the cousin on written notice by certified letter of the foregoing and let him know that if he does not provide you documentation regarding all his actions regarding your mom's assets while he was POA so you can follow the trail of all the money and assets and can be assured he is satisfied his fiduciary duty to your mom, including giving you a full accounting of all your mom's assets and money in and out of her accounts while he was POA, you will be filing a petition with the court asking the court to order an audit of your mom's estate prior to her death. If that fails, file your petition.

Customer: replied 1 year ago.
Well actually he sold the property (vacant land) and it was only used to pay for 24-7 home care and move mother when it was not feasible to keep her in her own home. In 2012 after her mind was going a brother had a caregiver stay home and spirted mother away to get a quick claim deed on a and joing property for free. As my cousin was only a POA and not a Legal Guardian mother was able to make her own decisions Legally. It was all mother would ever agree to was a POA, she was independent as hell, that Depression Generation were all alike that way.
Expert:  Richard replied 1 year ago.

Thank you. Then, if there is basically nothing left owned by the trust, everything else goes to you. You wouldn't need a court ruling on this. And, you could, if you chose, decide to gift any portion of your entitlement to others, but you would have no legal obligation to do so.

Customer: replied 1 year ago.
The main issue now is for me I know the property is in the Trust at least what remains. I have faith my cousin did not act for personal gain at all as he is quite well off as is his wife. I don't think he did a very good job but it was always treated as attorney client between he and my mother. For instance she as a widow of a WW2 vet she could have gotten benefits of a thousand a month for decades he only just got her 4 mos of them. I never knew her business though so I never knew what she had for income. Over a hundred thousand in lost income at least from that oversight.
Customer: replied 1 year ago.
I'd call but my wife and dog are sleeping
Customer: replied 1 year ago.
Oh I understand now in reading the first part answer some that the court would decide that as it is in a known Trust but the conditions of the Trust are unknown. The court could set the conditions of the Trust then? Rule that it be divided 4 ways evenly? Rule that I am Heir to the Trust? What possibilities exist therein?
Expert:  Richard replied 1 year ago.

I'm so sorry for the puppy needed to go outside!

Yes, that is exactly right concerning the trust. And, the court would rule which assets are governed by the will and thus distributable to you. This takes you out of the firing line in case someone disagrees with your actions. :)

Customer: replied 1 year ago.
With your experiences in these matters and never having a crystal ball as far as courts go (I understand that part), typically on average what would you expect on a petition to the court in the these instances?One being in a Trust not being found and left to the court to determine the intent based upon the Will?Secondly in that a Trust the conditions of which are unable to totally be satisfied as the Items dedicated to Heirs were previously disposed of? Although partially being able to meet some conditions?As a Durable Power of Attorney is there any fiduciary responsibility to this cousin (financial liability wise) for failing to apply for VA benefits for my mother, which blunder lost her over $12,000 a year for at least 25 years? I find it appalling it happened at all and that a Career military man failed to pursue or not know of the available benefits.
I feel compelled to sue him for that little oversight.Is there any other form of POA that can be appointed to someone who is not a Attorney at Law licensed by the State. As State laws vary are you versed in Michigan Law in these matters?
Expert:  Richard replied 1 year ago.

Hi there. Outside of a couple of states, such as Louisiana, most of these states have the same guidelines in these issues. 1) If the trust cannot be found, and there is no specific property titled to the trust that can't be found, I think the court will find that there is no trust that can be located and thus the will controls. 2) With regard to the VA benefits, I think that a court could find that your cousin likely breached the fiduciary duty to your mother by not filing; but, this is tempered by the fact that a POA is different than being appointed a conservator by a court. A POA gives one the authority to act on someone's behalf, but not the obligation; a conservatorship confers both. But, if your cousin accepted this POA rather than declined to serve, when it was clear that the appointment was to handler your mother's affairs, the court, in my experience, is more likely than not to side in favor of a breach of fiduciary duty.

Customer: replied 1 year ago.
Hi Richard,
In this POA as has been amended a few times, it states him not financially liable, I feel although it is written, in my experience it is of no relevance and not like a creature of contract. Would that be a fair evaluation to you? Laws are in place to be followed and case law is law. I feel he realizes his error prior and try's to cover himself by having it inserted believing readers to be influenced by it. Underestimating myself.In the situation when a Trust is not satisfy able in all and only a part the court typically on average views what factors in your opinion to conclude what should be done.
Expert:  Richard replied 1 year ago.

It's difficult to sue on a POA for INaction. If there would have been a misappropriation of assets, it would be easier. But, since a POA does not make a person obligated to do anything, it would be uphill to prevail on the POA. Not impossible, because if you can show intentional bad faith or gross negligence, a judge could side with you.

Customer: replied 1 year ago.
Well that was a after thought it wouldn't help her now anyway. In the situation when a Trust is not satisfy able in all and only a part the court typically on average views what factors in your opinion to conclude what should be done, refer to the Will? Settle what can be settled? Rules the totality of all invalid, one bad apple spoils the bunch?
Expert:  Richard replied 1 year ago.

The court bends over backward to fulfill the intent of the decedent. The court will take whatever they have to show the existence of documents. But, if these documents cannot be found or they have not been properly signed, witnessed, and/or notarized by state law, the court will rule them to be invalid and rely on the documents that exist that are properly executed.

Customer: replied 1 year ago.
I had inquired about a consultation with a attorney recently, not divulging what I wanted to discuss at all. Simply curious about her availability. I decided to not make any appointment as yet. I received a call from the office of this Attorney the next day and was told she would not represent me in "any" legal matter due to a conflict of interest. That I also had never made a Appointment to see this attorney at all! This all coincides with the previous questions, more so do I have a legal avenue to find out what this Conflict of interest is, such as a show cause hearing? I am confused by this response and I want a legal order from the court to show cause as to this response to me if it is possible?
Expert:  Richard replied 1 year ago.

Hi there. If the attorney makes a determination there is a conflict of interest, the attorney is within her rights to decline representation. A conflict of interest is a situation in which a person or organization is involved in multiple interests, one of which COULD POSSIBLY corrupt the motivation of the individual or organization. The presence of a conflict of interest is INDEPENDENT of the ACTUAL occurrence of impropriety. Rather, a conflict of interest is a set of circumstances that CREATES A RISK that professional judgment or actions regarding a one interest COULD BE UNDULY INFLUENCED by a second interest. This is clearly the situation in your case. Typically, if someone calls to inquire about consultation, an attorney will run a conflicts check and if he/she thinks there may be a conflict will decline representation. And, this is usually done before the scope of the representation is discussed so that the attorney does not hear information that would impact their representation of an existing client.

Customer: replied 1 year ago.
Would a Trust be considered a existing client in checking my previous conversations? If a conflict exists now, could it have not existed prior based upon nefarious information. Essentially offering a biased formation to begin with of the Trust? If the Attorney is representing what was a part and participant in and no longer has expended or extended obligations what would the conflict be? If the Attorney represents another client causing the conflict what is the avenue to find that out?
Expert:  Richard replied 1 year ago.

Yes, a trust is a separate entity and thus would be a separate and distinct client. And, yes, there could have been a conflict previously. If the attorney ever represented the trust, the attorney would be within his/her right to decline representation. You are within your rights to ask the attorney to inform you of the conflict so that you can determine if, given the current controversies, the attorney should withdraw from representations of any of the parties at this point.

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