Legal Question in Wills and Trusts in Virginia
Power of Attorney and Last Will and Testament
My brother was my Fathers POA. My Father died May 11, 2005. My Father had a Will in a safe deposit and presumbly left everything to my Mother. My brother has not allowed anyone other than himself to see the will. No one other than my brother knows the contents of the safe deposit. My Mother, 78, wants to see the will and the contents of the safe deposit box. My brother is not complying. My brother claims that she signed her POA to him as well. She said she did not or didn't remember. My Mother's Doctor said she should not be left alone because she is depressed over the death of my Father, yet for 20 of 24 hrs per day she is and my brother says that is ''his'' decision. My Father, I believe, used a local Attorney to draw up his will and POA. Since my brother refuses to share information how do I determine what ''power'' he has or does not have regarding my Father's possessions and my Mother's future care and her affairs after my Father's death? Thanks.
2 Answers from Attorneys
Re: Power of Attorney and Last Will and Testament
First and foremost, you should bear in mind that any Power of Attorney(POA) which your now deceased father supposedly may have given to your brother is now, legally speaking, as dead as your father. The POA becomes inoperative the moment the grantor of the power dies. Therefore, the real question is who is the executor of your father's estate who will be responsible for assuring that the terms of the will are fully and properly carried out?
I would suggest that you contact the local attorney who allegedly prepared the POA and the will and who may be able to provide you with a copy of the latter. This person should also be able to advise you as to what needs to be done
in order to get the probate process started and
and how you should deal with any impediments which your obstructionist brother may throw in the way.
Re: Power of Attorney and Last Will and Testament
Yes, the power of attorney is meaningless because it ends at death.
It is required that the will be filed with the probate division of the Circuit Court. It cannot be lawfully hidden.
I would also suggest that you or someone take your mother to the Circuit Court for the County where your father lived, and ask for the probate office. (In the busiest Counties you may have to make an appointment.)
Your mother should apply to be the executor (personal representative) of your father's estate, as his wife.
We don't know who is the executor under the will, since you don't have a copy of it. However, if the will appoints your brother as the executor, he will have to come forward with a copy of it in order to get appointed instead of your mother. Because she is the wife, she is most likely the executor named in the will, and in the absence of the will, the most likely choice.
Your mother can then issue a power of attorney to you to help her carry out the duties of executor.
This will require your brother to come forward with all of the documents in order to demonstrate that your mother is not the correct exeuctor, if that is the case.
The Court can issue a subpoena for the will and all documents in the safe deposit box, and you should ask for this.
In general, it is required that a complete inventory be made of everything that your father owned at death, and it must be distributed according to the will. Anyone receiving prorty from the estate needs to sign a receipt.
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