Legal Question in Wills and Trusts in Pennsylvania

If the person from whom you would inherit is deceased, their estate must be probated to do anything with their assets. A POA becomes ineffective the moment that the person dies.

If the trust was already established before the person died and was not revocable during that person's lifetime, the Trust document governs. If you and your brother are also co-Trustees, you are bound to run the trust as provided in the trust document. It may not permit immediate distribution to beneficiaries.

Both a Will and a Trust document govern how each of those are administered. If the person who created the Will and the Trust has died, the estate must be probated before anything may be done with the assets of the person. If the trust was established by the Will, the trust may not be funded until the estate is administered.

You reallly need to consult an estates lawyer, bringing with you a copy of the will and of the trust document, if it is a separate document. The attorney would help you figure out your rights and assist you in dealing with your brother if he is doing something not permitted or contrary to what he should be doing.

THIS RESPONSE IS NOT LEGAL ADVICE, SINCE I DO NOT HAVE ALL OF THE INFORMATION THAT WOULD BE REQUIRED, AND I DO NOT HAVE A REPRESENTATION AGREEMENT WITH YOU. a

* If the answers to your question confirm that you have a valid issue or worthwhile claim, your next step should almost always be to establish a dialog with a lawyer who can provide specific advice to you. Contact a lawyer in your county or township.

* Another reason for contacting a lawyer is that it is often impossible to give a good answer in the Internet Q&A format without having more information. The unique circumstances of your situation and things that you may not have thought to mention in your question may completely change the answer. If you want to be sure that you have a complete answer to your question and an understanding of what that answer means, establish a connection with a lawyer who practices in the area of your concern.

You combine too many things. Powers of attorney are effective only up until death. If there is a revocable living trust, then the power of attorney only governs those assets which are still outside the trust, if any. In such case, the trustee of the trust handles all trust assets and the power of attorney handles non-trust assets. Usually the person who made the trust (called the settlor or grantor in most places) handles the trust assets and anything outside the trust while they are mentally competent (if this is a springing power of attorney which only becomes effective upon mental incompetency; otherwise the agent would take over immediately if so provided in the documents).

If the grantor/settlor can no longer manage the triust then the person named as successor trustee takes over. The agent under the power of attorney then takes over the management of non-trust assets if the prinicipal is incompetent (again assuming that this is a springing power). The successor trustee and agent can be the same person or different people but they usually must work together.

You mention that you are to have a joint-power of attorney as said in the trust. This makes no sense. The power of attorney would name you as agent or co-agent, not the trust, for any non-trust assets. The trust would name you as successor trustee or co-trustee if that was intended for trust assets.

If the grantor/settlor is deceased, the n the power of attorney ends as noted above. In that case, the duties of the agent under the power of attorney are to convey any assets to the personal representative of that person's estate. The will is submitted for probate, if necessart. If this was done correctly, then there will be no need for probate as the estate will have few to no assets. Once the estate is probated, if necessary, then any remaining assets are given to the trustee in what is called a "pour-over". The persona named as successor trustee then distributes or manages the assets as per the terms of the trust. Generally, the trust provisions become irrevocable at death, meaning they cannot be changed by the trustee.

While I have assumed that you have a revocable living trust, there are also testatmentary trusts which only become effective at death. They work much the same - in that case the estate is probated and administered and the assets are again turned over to the trustee to manage or distribute. This is ususally done for minor or handicapped beneficiaries, but there could be other circumstances.

It is not possible to give you specific legal advice without reviewing the power of attorney and trust documents. What you need to do is get a copy of these documents and go to a probate, estate and trust lawyer. If these documents were created in PA then you can go to any probate estate and trust lawyer in PA. Ideally, it should be one in the county where your mother resides or owned real property. Pay the attorney to review the documents and give you advice.

Powers of attorney can be challenged if the agent is abusing his powers. Likewise, trustees can be removed for abuse of powers. Litigation is a costly exercise and the grounds for removal are difficult to establish. It has to be more than just "my brother has taken control." However, if he is acting contrary to the terms of the trust or power of attorney, you should pursue this especially if it will result in benefit to you by preventing your brother from disposing of assets.