Legal Question in Wills and Trusts in Texas

Responsibility of Durable Power of Attorney
My father passed away in Feb 2008. The executor, my eldest brother, does not plan to probate his will because Father had deeded all his real estate to his heirs prior to his death and his last will & testament left all remaining assets (which could only be cash) to be divided equally among 3 of his children. The executor's wife (my sister-in-law) had been his Durable Power of Attorney for 4 years prior to his death. She now claims there is no money left to divide. I believe the power of attorney spent his money during those 4 years on things not necessarily in the best interest of my father. Question: Is there anything that can be done at this time, after his death, to challenge the expenditures, such as to require her to provide official documents to show where approximately $300,000 was spent? Or is it simply over and we just have to accept their statement that there is nothing left?

Asked on 7/16/08, 12:58 pm

2 Answers from Attorneys

Nicholas Dupre Stone and Associates, LLP

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Re: Responsibility of Durable Power of Attorney

Regarding the will: As custodian of the will your brother has a duty to deliver that will to the clerk of the court having jurisdiction over the estate (usually county where he resided or where he died). You can alert the court to this fact and they will send him notice that he must produce the document. In the alternative, it is possible to probate a copy of the will so if by chance you have a copy or can obtain one then you can do it that way.

Regarding the Durable Power of Attorney (DPOA): You can institute a civil suit against the person acting as agent under the DPOA for fraud, mismanagement of funds, tortious interference with inheritance rights, etc - there's a laundry list of things you can put in your petition if you decide to institute suit depending on the specific facts of your case. I will say that it can be difficult to prove some of those things as it often becomes he said-she said, but again I don't have all the specific facts and if you believe the agent committed some kind of fraud or error institute suit and have her do an accounting. As acting agent under your father's DPOA she should have kept records of each action taken as agent.

Answered on 7/16/08, 3:21 pm

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