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My father-in-law died yesterday in Indiana. A POA was named…

My father-in-law died yesterday in...
My father-in-law died yesterday in Indiana. A POA was named in 2014 (cousin). How do we find out the current Executor. How is Probate initiated. Thank you.
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Answered in 5 minutes by:
1/5/2018
Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 57,208
Experience: 29 years of experience practicing law, including tax and estate planning.
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Hi! My name is Richard & I will be helping you today! It will take me a few minutes to type a response to your question. Thanks for your patience!

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Good afternoon Deb. The POA would have terminated automatically upon your father in law's death. Did your father in law have a will?

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Customer reply replied 7 months ago
I was told a few years ago the Executor is my husband's brother. We don't have a good relationship with the brother.

Thanks for responding. Your father in laws will should contain a provision designating the executor. But, that doesn't make the estate the executor's personal piggy bank. The executor has a fiduciary duty to each beneficiary. Each beneficiary is entitled to have the executor timely file the will for probate...usually within 30 days of death..., to timely administer the estate specifically pursuant to the terms of the will, to have the executor provide a copy of the full inventory of assets and periodic accounting of every dime in and out of the estate. Unless there is a particular situation complicating the administration, the administration of an estate would not take over 1 year to administrate and usually only 6-9 months. If the executor fails to produce the inventory, periodic accounting, or fails to timely administer the estate specifically in accordance to the will, you can file a petition with the probate court to have him removed as the executor for breach of fiduciary duty. And, if an accounting, which the court will order if the executor has not provided one, shows there to be any misappropriation of estate assets or funds, you can also ask the court to award actual and punitive damages against the executor.

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Customer reply replied 7 months ago
There are two biological children. It's very possible both children were left out of the will on purpose. Does this mean the children do not know what the will contains until Probate is filed? Will the will become public property?

Yes, the will becomes public record. Whoever is named executor has no legal authority until the will is filed with the probate court and the court officially appoints the executor as evidenced by documentation issued by the court. Once the will is filed for probate, it becomes public record and you only need to contact the clerk of the probate court in the county in which your father in law resided to determine how to access the will in that particular court

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Customer reply replied 7 months ago
Who is responsible for itemizing the assets? How are the assets protected from being taken before being itemized?

The executor has that authority. But, it's hard to not leave a paper trail. As a beneficiary, one would have the right to have copies of all records and back up statements. And, if the beneficiary suspected any kind of fraud, the beneficiary could force an audit of the estate, which would be done by a forensic accountant who would easily be able to uncover any financial transgressions.

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Customer reply replied 7 months ago
There are a lot of loose items that could easily disappear; appliances, computers, TVs, cash, furniture, etc. I have a feeling family members have easy access to the property.

You can always go to the court and demand that the probate process be monitored by the court and that the house be locked up and secured and only be accessed through court supervision. Also, if the brother has a history of dishonesty, you can ask the court to disqualify him as executor.

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Customer reply replied 7 months ago
I'm not so much worried about the brother being dishonest. It's only a suspicion on my part the nieces and nephews have had free access to the home these past three years and could help themselves.
Customer reply replied 7 months ago
At one time my father-in-law set up a Trust here in CA. I don't know if the Trust is still in place. Does a trust supersede a will?

If there was a revocable living trust, it would have become irrevocable at death. Any assets transferred to the living trust during your FIL's life would be controlled by the trust agreement. Assets not put in the trust during life would be governed by the will. But, typically, if there is a revocable living trust in place, the will is simply a "pourover will"...meaning the assets covered by the will are directed to be passed to the trust and governed by the trust agreement.

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Customer reply replied 7 months ago
I may have been wrong in stating there was a will. If the trust was created back in 1988 (approximate) would any future amendments need to be notarized? Do these amendments stay with the original trust? If the trust was established in CA, and FIL has the original (or copy) how is the trust validated? How do I find out if in fact, my FIL's brother is the Executor? I don't know who the Executor is ... just a guess. And, if my FIL's brother is the Executor how does the Executor know to initiate probate? The real estate property was purchased in 2014 (I think). What if the property was not included in the trust? Is the property still governed by the trust? It was stated above Probate could take up to approximately 1 year. Who is responsible for overseeing for the care of the property? Can a relative live in the property? The property is vacant and relatives live 3 blocks away.

1) Yes, any amendments should have been notarized.

2) Typically, to insure that there is an awareness of any amendments, amendments are kept with the original trust agreement.

3) The trust agreement establishes the trust terms; there is no requirement that it be validated or recorded anywhere.

4) If there is a will, the will would have to be probated and that would be public record.

5) The executor would need to engage an attorney to handle the probate. When the executor is not the sole beneficiary, the executor is not allowed to do it himself because it's considered practicing law without a license because his fiduciary duty is to all beneficiaries.

6) If the real property is not owned by the trust, then it is governed by the will. If there was no will, then the intestate succession rules would apply which would mean it would go to the children if there is no surviving spouse.

7) The executor is responsible for overseeing all estate assets prior to distribution. Any costs are considered estate expenses.

8) Yes, a relative can live there to safeguard the property.

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Customer reply replied 7 months ago
8) Does this include a niece driving my FIL's PU truck? Let's say her father is the Executor can she continue driving the truck. My FIL gave her previous permission. FIL did not give her the truck, though.I have a notarized amendment to the trust dated December 31, 1999 (my husband, deceased's son) stating my husband is the Executor. How do I find out if the trust was amended again and my FIL's brother was named Executor? Do we need to wait the 30 days?Hypothetically, if my FIL's brother is the sole Executor can he take possession of all assets immediately and bypass Probate?Can the signature of the Trustee and Settlor Trust document be the same person? My FIL signed in both places. Is this significant?My FIL was on our cell phone plan. My FIL was paying us annually. Can I request the cell be returned immediately or do I have to wait for Probate?

No...this would no include driving a truck as that is not preserving the asset, but depreciating the asset.

You would produce the amendment and demand that your husband be given all the records because he's the trustee/executor. That puts the burden on the brother to show a later amendment if there is one.

He can only take actions to safeguard them prior to probate; other than that he has no legal authority until officially appointed by the court.

Yes, that's typically the case as during life, the settlor typically is also the trustee.

Yes, if he's on your plan, you control the phone.

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I just wanted to let you know that I will be away for the next several hours attending a prior engagement. Should you have any further follow ups while I’m away, I will review them upon my return. Thank you in advance for your patience. I apologize for any inconvenience.

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Customer reply replied 7 months ago
Thank you very much. I'm very pleased with all the information you have given me. I do have a few more questions and would prefer to continue with you. Appreciate your patience with all my questions. This is my first experience. 'm happy to give you an expert rating including a tip. So, again, thank you very much.

You're very welcome. I have returned.

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Customer reply replied 7 months ago
How does it work if my FIL verbally gave assets to relatives, while alive, but said they get them after his death? FIL's property is now unoccupied?1) Above you wrote, "You would produce the amendment and demand that your husband be given all the records because he's the trustee/executor. That puts the burden on the brother to show a later amendment if there is one." To be clear ... my husband shows his uncle (FIL's brother) the copy of the will we have. How do we ensure the uncle will give us a copy of his copy of the will? Is this done via email, fax? Do we wait for Probate to be initiated? I'm not saying this will happen, but I can see this situation getting ugly. I don't know what our rights are. Do we need to engage an attorney?5) For clarity ... if the sole Executor is FIL's brother, can he distribute assets right now?8) Getting back to the PU truck ... It's unknown who the Executor is. How do we stop my FIL's niece from driving the PU truck? The argument will be "FIL said I can drive it as my vehicle needs repairs and I don't have the money for repairs." Little hard to enforce this when we live 2,500 miles away.FIL has one or two bank accounts. Is it correct to assume there should be NO bank activity as of the time of death on January 4th?
Customer reply replied 7 months ago
Will the trust also become public record?
Customer reply replied 7 months ago
Sorry ... you already answered #5 above.

Verbal gifts would not be enforceable; if he did not evidence them in writing, they would not be enforceable.

If there is no will, then he is deemed to have died intestate. In that case, the intestate succession laws would apply which would result in the probate estate being divided equally between the siblings. So, if no will is produced, your husband could file for an intestate probate proceeding and ask to be appointed executor. Yes, you would need to engage an attorney for this because when there are multiple beneficiaries, your husband would be considereed to be practicing law without a license if he tried to do this himself.

The executor must be appointed officially by the court first. Then, the executor must publish a notice to creditors and make sure all the estate and FIL debts and liabilities are paid first. Only then would assets remaining be distributed to the beneficiaries.

See my answer above about intestate if no will and no executor is appointed. Once appointed, the executor would repossess the truck or have a professional repossession company do it.

Yes, the accounts should be frozen as of the date of death.

Richard
Richard, Attorney
Category: Estate Law
Satisfied Customers: 57,208
Experience: 29 years of experience practicing law, including tax and estate planning.
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Customer reply replied 7 months ago
Richard, I profusely apologize for my delay in contacting you. I have a few more questions. I do now have a copy my FIL's will. Are you able to review the document (pdf)? Please advise if you prefer I rate you on the January 5, 2018 session or continue the session. Thank you.
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