Legal Question in Wills and Trusts in Arkansas
My mother had a will made in 2004 prior to being diagnosed with Alzheimer's in about 2005. She also had POA papers drawn up that made my sister first POA, me second, and our brother third in line as POA. The will also listed the three of us in the same order as Executrix and Executors. My sister moved in with mother to be her caregiver although my sister worked two jobs and wasn't there most of the time. She also took care of mother's finances, paying her bills, etc. She was put on mom's checking account when mom could no longer write her own checks. Mother stated in her will that she wanted her estate and stocks sold and the money split into three equal parcels between us three kids. Mother died almost three months ago. My sister has made no attempt to contact my brother and me about selling the estate and stocks. Sister has continued to live in mother's house since mom's death. About a week ago, I contacted her about executing the will. She informed me that mom only had a very small savings account. Sister also stated that mom's house was now in her name and so was mom's money. Sister feels she deserves this because she took care of mom. Mom had been in no state of mind to approve any business such as this since the will was made, so it had to be my sister's doing. Is this legal for my sister to take this upon herself to make these changes without consulting my brother and me?
1 Answer from Attorneys
I am sorry for your loss.
The instrument naming your sister as POA governs the extent of power she had to act on behalf of your mother. She would not be obligated to consult you or your brother before exercising this power. A POA becomes ineffective upon the death of the grantor. If third parties (e.g. banks, financial advisors...) are unaware of the death, however, it is possible that the attorney in fact may be able to continue to exercise the power until such notice is received.
Similarly, the instrument naming your sister as executrix governs the extent of power she has as executrix. A person nominated in the will to be executrix may take steps reasonably necessary to manage and preserve the property and rights of the decedent prior to being appointed as such by the court. However, this is a very limited grant of power to preserve the property and rights, and not to distribute the estate without court approval. As heirs to your mother's estate, you and your brother are entitled to notice of probate/administration proceedings.
From your post, it appears likely that these changes (if in fact made) were done prior to your mother's death. If made pursuant to voluntary instructions from your mother during a time when she had the capacity to do so (even during a "lucid interval"), then they would not be improper. As your mother's attorney in fact, however, your sister had fiduciary duties. Put simply, her actions should have been in the interest of your mother and not for the purpose of benefiting herself and disregarding your mother's wishes.
In Arkansas, the circut court in the proper county has jurisdiction over the administration, settlement, and distributon of a decedent's estate and the probate of wills. The time period for petitioning the court for probate/administration is 5 years from the death of the decedent. An interested person may petition the court of the proper county to begin probate proceedings. As your mother's daughter, you are classified as a interested person.
From your post, it appears that you should consult with an attorney about filing such petition. If you wish to discuss your situation with me, call 501-837-2534 or send an email to [email protected]. Good luck.
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