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What am I entitled to in the event of my grandmother's passing?

Charlotte, NC |

My grandmother's original will stated that her assets would be divided equally among her 5 children(my father is one of them). A year ago, my father passed away suddenly due to cancer. During this time, Grandma's health has diminished substantially as well and hasn't been able to take care of herself since the funeral. My initial inclination was that I (as my Father's only child) would stand in for him in the event of Grandma's passing and inherit 1/5 of her estate. My Uncle recently came by the house asking for a copy of my father's death certificate. I innocently asked why he needed it, and he plainly said that he was attempting to remove my father from Grandma's will. Grandma is in no state of mind to handle her affairs, so my uncle has been doing it. But can he do this to me?

Attorney Answers 3


  1. Best answer

    Well, you certainly have a potential issue here and should retain counsel if you believe there could be someone exerting influence that is "undue." If the language in the will calls for "per stripes" distribution then it is very likely you would stand in your father's shoes as you believe. One would have to review the will to be sure that the will does not state his share lapses if he predeceases grandmom which would leave you out.

    Regarding the issue with changing the will: If your grandmother lacks capacity she cannot change the will. This is a heavily fact sensitive determination but you would need counsel to assist you (a current POA cannot change her will for her). If this person attempts to influence her or forces a person without capacity to sign a new will, you could have an action for "tortious interference with expected inheritance" or something similar.

    Hire an attorney. Good luck.

    This is not legal advice nor intended to create an attorney-client relationship. The information provided here is informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  2. If the Will has not been changed, you would be entitled to your father's share if the language in the Will does not provide otherwise. You should consult an estate planning / estate adminstration attorney. It appears that your uncle is operating under a durable power of attorney - - - but most DPOAs do not allow an attorney in fact (agent) change estate planning documents. I hope you have a copy of the original will.


  3. I agree with the other answers and would add that if your grandmother has a springing power of attorney, meaning the agent can only act upon your grandmother's incapacity, and your uncle is exercising power under the POA, this indicates your grandmother would not have capacity to change her will. Most POAs require certification of incapacity by at least one physician. If you have access, look over her POA to see what it requires as far as establishing incapacity. However, like the other answers state, you should consult an attorney. You may want to pursue a guardianship and/or conservatorship. This involves a legal determination of incapacity, so once said determination is made your grandmother would not have legal capacity to execute a new estate plan.

    Good Luck!
    Jessica Newill
    Newill Law Firm

    This answer contains general information. None of the information contained in this communication is intended as legal advice. You should neither act nor refrain from acting based on information obtained from the exchange of messages on this website. None of the information contained in this answer is privileged or confidential. You should retain an attorney to provide legal advice regarding this issue. Newill Law Firm provides estate planning and probate services. Call (210) 383-0546 for a FREE initial consultation.

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