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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 10484
Experience:  Experienced Family Law Attorney
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My husband and s brother are both executors of s fathers

Customer Question

My husband and his brother are both executors of his fathers will ,everything was suppose to be spilt 50/50 but his brother had power of attorney of my father do to the fact that he had alzihimers and my husband became disabled and i had to get power of attorney of my husband. My brother in law put all money and stocks in his name to take it out of my father in laws name so we can get help for him,now hes claiming its his because its already in his name and he wants half the house which we lived in for 21 years with his parents and we cannot afford to buy him out because he took everything else.Is this legal. With my husband being disabled its not easy for us to move, being on a fixed income and still have chrildren living with us.
Submitted: 2 years ago.
Category: Family Law
Expert:  LegalGems replied 2 years ago.

I will have an answer shortly; thanks for your patience.

Expert:  LegalGems replied 2 years ago.

I'm sorry to hear of this situation. A power of attorney (POA) has a fiduciary duty to the principal (the party granting the POA). This means that the agent (the party who is to act on behalf of the principal) must act in good faith, with utmost care, and cannot engage in self-dealing. The agent is precluded from transferring assets to one's own name, as that is a conflict with the inherent duties; the agent is to use the principal's property for the benefit of the principal - there is no need to transfer the property to the agent's name, as the agent has access to that property (for the principal's needs) by very virtue of the POA. As such, it is considered a breach of the fiduciary duty, requiring the agent to reimburse the estate for any monies wrongfully used. The court will typically award attorney fees and costs in order to make the estate whole.

Expert:  LegalGems replied 2 years ago.

Violating the fiduciary duty is grounds for requesting the court to remove that individual as the executor, as that individual has already shown a propensity for not adhering to the law.

Expert:  LegalGems replied 2 years ago.

The court can order the agent to transfer the property to the proper owner, thus voiding any illegal transfers. Often times, family members will choose to hire an attorney, who will draft a letter requesting that the action be taken, and asking them to resign their position. If they fail to do so, the attorney can file a breach of fiduciary action, along with a request to strip the agent of all powers and to void the transfers.

Customer: replied 2 years ago.
do i have means to take legal actions against him
Expert:  LegalGems replied 2 years ago.

The individual can also be criminally prosecuted. Financial exploitation is defined in Social Services Law 473.6 as: the improper use of an adult’s funds, property or resources by another individual including, but not limited to, fraud, false pretenses, embezzlement, conspiracy, forgery, falsifying records, coerced property transfers or denial of access to assets.

Expert:  LegalGems replied 2 years ago.

Yes, as a breach of the fiduciary duty is an actionable offense.

Expert:  LegalGems replied 2 years ago.

Discussion of elder financial exploitation here: https://www.nycourts.gov/courts/nyc/housing/pdfs/gal%20pdfs/ELDER_ABUSE_WORKSHOP_INFORMATION.pdf

Expert:  LegalGems replied 2 years ago.

Did you have any questions on the above?