My mother has disturbingly appointed a (so-called) family friend who came back into the picture 2 weeks after my father's passing 5 yrs. ago. This man did business with my father but had not been around for at least 10 yrs. or more prior to his passing. My suspicion is that he knew my fathers worth and is scamming my mother. She has appointed him with a durable power of attorney, and all along I was sure I was the "executor" of her will. But recently found out that he is now the executor of her will also. My worst fear is that he gets to make all decisions about her estate when she passes, even though she says I get everything. I believe he is setting everything up to benefit himself and family. She has even set up a trust for his 2 sons & college. Please advise me in Texas? Becca
The will controls who inherits property owned by your mother at the date of her death. The executor (named in the will) can not change the terms of the will. I suggest you ask your mother to allow you to have a copy of her will. Appointing someone with a durable power of attorney IS NOT the same as naming someone as executor. An executor does not do anything until after the person's death. In contract, an agent under a power of attorney (called an attorney-in-fact) can take action only during the person's life. From the facts you have described, there is a danger that the man who is the attorney-in-fact could transfer all of your mother's property into a trust for the benefit of himself and his family. If he did so, then it wouldn't really matter what the will says, because property transferred under the power of attorney during your mother's life would no longer be owned by her at her death. Discuss all this with your mother, and if what she says is consistent with your belief as to how things should be, then ask her to write you a letter confirming it, or to sign a letter you wrote. However, if your mother's mind is gone (which is implied by the fact that she has a durable power of attorney under which this man is operating) then you will need to hire an attorney to file a guardianship for your mother. If you know what the will days, then the biggest danger is the power of attorney.
No your worst fear is that you end up getting nothing and/or you have a court fight after her death trying to prove duress, undue influence and fraud. You need to speak with an estates attorney about the proper strategy to pursue after you explain all the facts. Perhaps an open and frank discussion with mom would bring this situation into clearer focus. Perhaps you need to petition the court immediately to have a conservator appointed and to have this person removed as POA. But you need to get on this problem now before it gets out of control and costs you even more in the end.
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Elder Law Attorney
If your mother's wil says you get everything, then you do. if uit does not, you do not. The executor canot make decisons, but you donot inherit automatically as awill supersedes.
Sonya Mittelman is aNew York attorney and hence her answers ar ebased on New Yotrk Law. Please seek advice from acompetant attorney in youru own state
As the other answers suggested I would find a lawyer in San Antonio that specializes in probate and guardianship law. If you are not named in her will as a beneficiary then you will not take anything. Another alternative if that if all of her assets are taken out of the probate process (like a bank account with pay on death designation is not a part of probate) then whoever is named that person on the account gets that automatically. A person with a power of attorney can have the power to change that designation.
If your mom is not able to take care of her finances then you may need to go through a guardianship proceeding. Whereby the court appoints a guardian of the estate to help undo this problem and to make sure her financial needs are met in the future.
You can contact the San Antonio Bar Association to get a free lawyer referral at: http://www.sanantoniobar.org/
This answer is provided for your general information based on the facts given and that it is not legal advice and does not create an attorney-client relationship with either Ms. Lindsay or the Law Office of Claire Lindsay. It is recommended that you consult with an attorney licensed to practice in your jurisdiction for specific legal advice to your situation.
You would be the default beneficiary unless there is a Will that says otherwise or if someone else is named on account as beneficiary.
If you fear your mom has been duped you should take her to estate probate lawyer if she is willing.
If she does not have capacity you need to make a visit to an attorney that does guardianships.
Stett Jacoby is an excellant probate litigator in the area.