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Jewish World Review
Jan. 11, 2006
/ 11 Teves, 5766
Poor planning leaves children suffering stepdad's financial abuse
Jan L. Warner & Jan Collins
Q: After my mother's death, when it came time to sort out her estate and will under which my brother and I are the sole beneficiaries, we learned for the first time that, during the last years of her life, Mom's husband of 10 years who has two children of his own used our mother's power of attorney to gain access to her assets and income. This was a second marriage, and over the last few years, we felt as if he was keeping her away from us, but Mom assured us we were imagining things.
According to his story, the funds and assets Mom meant for my brother and me under her will were used to pay for her medical care and their joint living expenses. We believe our stepfather chose not to use any of his assets or income or any of the property, which had been set aside for him under the premarital agreement he and my mother signed. We firmly believe that our stepfather used funds that would have belonged to my brother and me, made gifts to his children, and otherwise diverted Mom's assets to preserve his own.
We talked to a lawyer, who told us that since our mother's power of attorney was so broad, our stepfather could have done practically anything with the money without making an accounting. He also told us that although our stepfather could not steal or act fraudulently, we must prove what we think he did. The problem is that we can't get any of our mother's financial records. The representative of her estate, who is a friend of Mom's husband, won't try to get records from him, and will not even get copies of the tax returns for the year in which Mom died. At our request, he made only a hasty review of withdrawals from her accounts, and performed no audit of medical bills and insurance reimbursements. He says that my brother and I cannot get copies of any of these records due to privacy laws even though we are the ultimate beneficiaries under our mother's will.
Because our mother's estate was depleted, the lawyer suggests we just put it all behind us rather than run up large legal fees. We are devastated emotionally and financially because our father left Mom in good shape financially. Is the law such that a devious stepparent can walk away with everything, or do we have rights to ensure that family assets are passed on in accordance with our parents' wishes?
A: Your question raises a number of difficult issues that confront elderly people who enter into second marriages. Despite what one might believe are the best plans, many intra-family problems such as yours will happen unless they are meticulously addressed in advance with appropriate documents that clearly state the intentions of the individuals involved.
First, go to your father's estate records and find out exactly what he left your mother. This is a good starting point.
Second, read the premarital agreement to see what your mother and stepfather agreed to. If you and your brother were the sole beneficiaries under your mother's will, we bet dollars to doughnuts that in return Second, read the premarital agreement to see what your mother and stepfather agreed to. If you and your brother were the sole beneficiaries under your mother's will, we bet dollars to doughnuts that in return for the transfer of assets to your stepfather to which you refer, he probably waived his rights to share in her estate. In addition, we assume that there may have been provisions about support, including who was to pay what and for the transfer of assets to your stepfather to which you refer, he probably waived his rights to share in her estate. In addition, we assume that there may have been provisions about support, including who was to pay what and from what source.
Third, carefully review the wording of the power of attorney to find out exactly what authority your mother gave your stepfather, because if the powers are not sufficiently specific to cover what you think your stepfather did, he may have overstepped his authority.
Fourth, according to the law of most states, a general power of attorney does not automatically include the authority of an agent (your stepfather) to make gifts to himself using the principal's (your mother's) assets unless specifically provided for in the document. Since the Internal Revenue Service uses this legal principal to require the return of improperly "gifted" funds to an estate for the purposes of calculating the estate tax, as beneficiaries who feel there was an abuse, we believe that you should insist on an accounting and attempt to compel the personal representative to do his job and have the funds returned to the estate.
Fifth, as a fiduciary for your mother, your stepfather was bound not to enter into transactions that benefited him to your mother's detriment. This is especially true if your mother was vulnerable or unduly influenced, as you seem to think.
Unfortunately, much of the information you seek will not be available unless you bring some type of lawsuit. Where there is smoke, there may well be fire, so tread carefully and circumspectly. We don't believe that second spouses should be placed in positions of fiduciary responsibility where, as here, there was a premarital agreement that created a conflict of interest. We also believe that had your mother and father engaged in appropriate planning, including reciprocal documents and perhaps trusts, your current situation could have been avoided.
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JAN L. WARNER received his A.B. and J.D. degrees from the University of South Carolina and earned a Master of Legal Letters (L.L.M.) in Taxation from the Emory University School of Law in Atlanta, Georgia. He is a frequent lecturer at legal education and public information programs throughout the United States. His articles have been published in national and state legal publications. Jan Collins began co-authoring Flying SoloŽ in 1989. She has more than 27 years of experience as a journalist, writer, and editor. To comment or ask a question, please click here.
© 2006, Jan Warner