The executor of my mother's estate also obtained power of attorney over her financial affairs approximately 6 years before her death last year. Does the executor have a duty to provide beneficiaries with an accounting her affairs including financial records, prior to the time of her death?
Divorce / Separation Lawyer
The person having power of attorney has no duty to automatically provide an accounting. However, if the beneficiaries request same through the estate, then the executor can be ordered to provide an accounting
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Elder Law Attorney
An Agent acting under an Illinois Durable Power of Attorney has a duty to maintain complete and accurate records of all actions taken on part of the principal. During the principal's life, State agencies investigating allegations of abuse are entitled to an accounting from the Agent. Family members can obtain an accounting during life by filing an action for the appointment of a guardian alleging that the agent under the power of attorney was not acting in the principal's best interest. This is an extreme and expensive action and should only be taken if the family is reasonably certain that evidence exists of the agents improper conduct, not just out of curiosity.
However, subsequent to death, the beneficiaries have many more rights in regard to actions both before and after death. The executor must provide the beneficiaries with an accounting of all monies received and expended by the Estate, and the beneficiaries must approve of the accounting or the Court will have to review and approve the accounting. In regard to actions that occurred prior to death, the beneficiaries as "interested persons" as defined under the Probate Act can file a Citation to Discover Assets against the executor. This would allow the beneficiaries to get detailed records in regard to the actions of the executor while he or she was acting as Power of Attorney. If as a result of this discovery process it appears the Executor/Agent did in fact use some of the decedent's funds improperly, the Citation can be converted into a Citation to Recover Assets which allow for the Court to determine if improper actions had been taken and order the monies returned to the decedent's estate. This is a complicated process and you will need to hire a Probate Attorney to assist you. Again this can be an expensive process and your Attorney will want a substantial retainer, so you should have some reasonable doubts regarding the prior actions of the Executor/Agent and not simply seeking to satisfy your curiosity. Good Luck.
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