Legal Question in Wills and Trusts in California

Hello All,
My question really is a series of questions
My father passed away a year and a half ago leaving behind money and personal belongings
While my father was very sick and it looked like he may gonna any minute my sister and her husband became very concerned with becoming in charge of his estate
So having faith in her i let her do what she felt she needed
Her husband who's cousin is a notary by trade had the cousin come to the hospital during one of my fathers brief moments of semi coherency at that time and sign my sister as power of attorney while having one of his nurses sign as a witness . Is this scenario a legit one, as in a perfectly legal and binding one? My father then made a brief recovery and my sister went ahead trying to prepare a will. My aunt my fathers primary care taker believes this will to have never been signed by my father. What does this mean?
Since my aunt has told me of a rental property that my dad owned and that may sister had mentioned setting up an account in her childrens name that would collect the rent
She told my aunt not to tell me because i had no knowledge of the situation. Is that OK?
Finally my sister has failed to communicate with me even though i am named as second in command and as the one to take over if she was not capable. Provided the money is still their do i have any options? Furthermore if the money is gone my father had a 2005 harley davidson roadking estimated to be worth $15,000 which my sisters husband now rides, would i have any options in retrieving that?
Thank you So much for your time

Asked on 10/28/10, 6:37 pm

2 Answers from Attorneys

George Shers Law Offices of Georges H. Shers

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You have some major problems, including that your sister and her husband are not to be trusted.

1. A Will must be signed by the maker of the Will. Her power of attorney is meaningless as to making a Will.

2. The person must be mentally competent to make a Will. Making a brief recovery does not mean he was competent.

3. If there is no Will or Trust, he had no living wilfe at the time of his death, and his only children are the two of you, his estate is split equally brtween you.

4. If his gross assets are worth more than $100,000, his estate must go through probate. No matter who named executor, anyone can petition the court to be named administrator of the estate. It seems your sister has acted improperly so you could be appointed instead of her.

5. Her husband appears to have no right to ride the motorcycle; it is the property of the estate and should not be used until it is decided who gets what [is it insured for collision damage?]. Likewise, she can not collect the rent and use it for herself.

6. Your sister probably is not going to pay any attention to a letter from you as opposed to from an attorney. The best thing would be to get everyone to sit down and discuss the facts, assets, future actions. I doubt she wil be willing to do that. You will probably have to file to probate the estate, alleging there is no valid Will. Judges do favor members of the local bar who handle probate matters before them, but if she does not have an attorney that will not matter. You should read some Nolo Press books and other legal publications, some of the similar answers to questions about situations like yours on thls web site, and hire an attorney. Most will probably charge you about $350 per hour; you might be able to find some semi-retired attorneys like me who charge substantially less. It does not appear to be a difficult case legally, but it will be dragged out somewhat by your sister.

[not proof read]

Answered on 11/02/10, 7:15 pm

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