Legal Question in Wills and Trusts in California

Re: executer vs. poa

You need to file in Court to be appointed executor of your mother's will and for probate of her will and you should ask for a revocation of your brother's power of attorney.

Feel free to contact my office if you would like to discuss this matter further.

Re: executer vs. poa

The Power of Attorney is only effective while your mother was alive. The Will is controlling after death. Thus, if your brother transferred the funds out of the account after your mother passed away, he acted without authority. If he transferred the funds before her passing, but kept it for himself, he breached his fiduciary duty - he cannot use the POA to benefit himself without express consent of your mother.

Generally, you will need to file a petition to open Probate for your mother's Estate and get appointed as Executor. As Executor, you would marshall (get) the Estate assets (including those funds). If your brother does not turn it over, you will have to sue him. There is a special petition in probate that accomplishes this.

If you have further questions or if you would like to discuss this privately, please do not hesitate to call.