How to demand an accounting of DPOA as executrix?

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Latest post 04-26-2010 8:23 AM by Drew. 12 replies.
  • 04-25-2010 3:22 AM

    How to demand an accounting of DPOA as executrix?

    I'm in TN, been left as executrix of my mother's estate. She was diagnosed with early stages Alzheimer's/dimentia in late '92. In '95, step-brother and wife were given a DPOA, behind everyone's back. No one was notified they did this. No one (including myself) found out until her house had been sold in '98. All accounts were emptied, assets were liquidated, house was gutted and sold. The estate at that time was in the area of $250,000. She drew a pension & SS each month of $1400, and was placed into sliding scale type nursing care until her death earlier this month. I want to open probate on her estate, and I want to ask the court to demand a full and detailed accounting of her assets under the DPOA which I also feel was made using undue influence. Is there a form anyone knows of or specific wording I can use to do this (ask the court for the accounting)? I have looked everywhere using google, etc., and can't find a form. I have to file the probate 300 miles from my home, and every lawyer I've talked to wants $4000 retainer to start. I feel I can do most of the legwork myself and save some money in retainer and legal fees---I just need some direction and/or a form to start the probate proceedings and petition the court for the accounting. Thanks.

  • 04-25-2010 10:34 AM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Would the probate still be in TN, or where?

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 04-25-2010 12:43 PM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Yes, sorry Jack. The probate is in Middle TN, in the county where she was in the NH at passing. I will have to travel 300 miles each way in order to get things done, so I'm hoping to get a death cert, file for probate, get copies of land records/transfers and do the demand for accounting (if possible) all in one trip. This is a podunk town, less than 4000 people, so I should be talk of the town by the time I leave, LOL.

    I'm really interested to know if I can demand the accounting on my own or if I need an attorney to draw up the thing...

  • 04-25-2010 1:39 PM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    I'm not sure that the probate court would have anything to do with the past activities of the DPOA. In other words, you might have to file a separate action against the DPOA, even if it might be in the same location.

    However, before you even get to the point of using the court as leverage, you'd probably have to request the accounting and see if you get a response. I don't know of any form, but you can probably just send a letter. Then, if you get no response, you'd probably have to file a lawsuit, which you begin just like any other lawsuit.

    In preparation for sending the letter, study up on the Tennessee Uniform Durable Power of Attorney Act which is found in Title 34 Guardianship, Chapter 6 Power of Attorney at:

    http://www.michie.com/...=

    Giving it a quick look, I found the following:

    34-6-107. Fiduciary relationship of attorney in fact with the principal. —

     

    • An attorney in fact is in a fiduciary relationship with the principal, but only to the extent that the attorney in fact undertakes to act under the power of attorney. Among the fiduciary duties required by law, an attorney in fact has a duty to adequately account to the principal, or to any legal representative of the principal appointed by the principal or by a court, for actions taken by the attorney in fact in the exercise of the power of attorney. It is the intent of the general assembly that this section have retroactive application.

    If I were sending the letter, I would certainly quote that statutory obligation in the letter.

     

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 04-25-2010 4:29 PM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Ok, thank you. I will ask my atty the exact first steps to take and may not get to the demanding of accounting until later.

    Also--Will the courthouse be able to tell me when I'm there if someone else has applied for executorship without testate? Like, if he's already gone over there thinking there is no will, and he's applied for executor's rights, would they know that when I'm there and let me know?

    And--When do I get a letter testamentary stating I've opened probate? Would they most likely mail it to me, or would they just make me sign somthing there and get one while there? I only ask because there is unclaimed property at the TN Treasury that I am claiming and will need that letter to do so.

    Finally--IF ANYONE has seen a compelling of accounting letter/demand and has access to one, could you post it so that I can see it? Thanks!Ok

    Thank you for your help already--greatly appreciated!

    --QM

  • 04-25-2010 4:58 PM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Quietmadness:
    Will the courthouse be able to tell me when I'm there if someone else has applied for executorship without testate? Like, if he's already gone over there thinking there is no will, and he's applied for executor's rights, would they know that when I'm there and let me know?

    You ought to be able to call up the court and ask if probate's been opened and get the case number if it has, and then have them copy and send you the file (for a fee).

    Quietmadness:
    When do I get a letter testamentary stating I've opened probate? Would they most likely mail it to me, or would they just make me sign somthing there and get one while there?

    Could go either way. When you call the court ask if they issue them on the spot or mail them to you. You might also consider opening probate by mail. Might save you a trip in case you have to file and then wait.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 04-25-2010 4:59 PM In reply to

    • Drew
      Consumer
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    Re: How to demand an accounting of DPOA as executrix?

    Once you get appointed executor, seems to me a plain demand in English to prior POA to account , copy of law , is about all it takes to get ball rolling. (Assume POA may tune you out--you'll probaly next need a court order to compel performance of same.)



  • 04-25-2010 5:30 PM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Oh, Drew--you're right on target with this dude. I could tell you stories of the advantages he has taken in the last years that would make your head spin. The best one of all? I was there to visit her on March 9th. She was taken to the ER on the 24th, and stayed in hosp for a week. She had stopped eating/swallowing. So basically they treat her for dehydration, etc---tell the step-idiot she was "beginning the process" of dying. So step-idiot has them move her back to the NH on "comfort measures" (ie morphine, etc). She stayed on "comfort measures" for 14 days and then passed.

    Do you think as her son and me as her daughter, that I ever got a phone call? Do you think he had the nurses call me? Do you think I got a letter, e-mail, message at husband's work? NO. NOTHING.

    She died and do you know how I found out? By a message on a popular website where people network...like photo book. Yeah. I got a PM saying, "So sorry to hear about XXX but I'm sure heaven is the high life for her. And I'll see you at the services tomorrow and Saturday!"

    So THAT is how I found out my heartbeat had stopped. She was my heartbeat. I found out about her passing from a website!! The day before the services!! And now I'm dealing with this... and why? All because of a self-centered, greedy, calculating THIEF. He was never planning on telling me. He was going to let me drive 300 miles the next month to find out from a nurse she was already dead & buried. He was PLANNING on being the center of attention at the visitation and telling people that I never cared, too. FAIL.

    Now, how much do you want to bet he's already filed? *insert low eyelids and flattened lips here* Every step he/they have taken has been to make it all their game. They had no idea she had made that will to me--and if they did know--they did what they did thinking they would win and are now thinking they have already won the pot. They truly have no clue I'm coming, and they MAY be able to make it appear as if they've spent every dime the right way (on her) but something tells me to keep at this. Something tells me they thought the DPOA was a ticket to ride and they've not kept good records. I'm just sayin'.

    I do thank you all very much for your guidance here. This has been so helpful and I appreciate y'all!

    --QM

  • 04-25-2010 5:48 PM In reply to

    • Drew
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    • Joined on 03-30-2000
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    Re: How to demand an accounting of DPOA as executrix?

    Do NOT let the original of the will out of your sight--you must take the original to the courthouse in state/county where she was a resident  (not necessarily the NH unless same was her residence) and file it for probate .

    You have NO official powers until the will is accepted into probate and letters administration issued to you--and if you delay the mice will play!

    Unless you are up for a contest with a dirtball--you best consider legal counsel.



  • 04-25-2010 11:37 PM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Drew, the original of the will is DEFinitely in my posession, which brings up another question: Do they take the original or will they make a cert copy and return the original to me?

    I automatically assumed that her place of residence was considered the NH, which she had been in for about 3 years....right? That and also they only lived 2 miles or so from the NH themselves...allowing easy access to her each day. Giving the devil his dues, he/they did make sure to show up at lunch every day 7 days (skipping the occasional Saturday) to feed her and be with her. I have to give them that much.

    And yes, I am right with you on the legal counsel thing, it's just that we make too much to qualify for "legal aid," and otherwise, I'm not having much luck finding someone who specializes who's willing to talk startup for much less than $4000---which we most definitely do not have.

    'Dirtball' is a gracious term for him. My original one has 12 letters and starts with "m". :-o

    --QM

  • 04-26-2010 1:38 AM In reply to

    Re: How to demand an accounting of DPOA as executrix?

    Quietmadness:
    Drew, the original of the will is DEFinitely in my posession, which brings up another question: Do they take the original or will they make a cert copy and return the original to me?

    The court takes the original for the case file because only the original can be probated. So make sure you keep a photocopy for reference.

    • The right of the people 
    • to keep and bear arms,
    • shall not be infringed.
  • 04-26-2010 7:36 AM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
    • PA
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    Re: How to demand an accounting of DPOA as executrix?

    It would be rare to get legal aid for a civil matter.

    You are free to muddle thru probate w/o an attorney but I'm not sure its going to be productive.

    By rough estimate, about how much $$ is still left inside the estate?

    By rough estimate about how much was diverted by the POA to his own personal use?

    One typical approact to attorney fees for estate is a flat % of the gross estate on a sliding scale--but if you expect counsel to spend a lot of time going after recovery of misspend estate assets you need to cover that topic carefully in your billing arrangement on behalf of estate. .

    In short, be careful not to spend $10,000 chasing $6,000

     



  • 04-26-2010 8:23 AM In reply to

    • Drew
      Consumer
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    • Joined on 03-30-2000
    • PA
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    Re: How to demand an accounting of DPOA as executrix?

    I do NOT know if the folllowing steps work--but check them out.

    If the current net in estate pot is small, then you might qualify for issuance of administrative powers under the small estate administration law ($10,000 I think) , then with such formal powers to act on behalf of estate you demand a formal accounting from  POA.

    But either way, I suspect you will run out of skills as to how to hold dirtballs feet to fire w/o a paid gladiator to do so.

    Lets assume gladiator charges $275/hr---the point is to use gladiator where it counts--and not have gladiator off doing  tasks you could do yourself.I know of one family who was so pigheaded about counting and cleaning out Pops stuff that they paid the attorney his full hourly rate for him to go do it.



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