Legal Question in Wills and Trusts in Virginia
Viewing a will and Power of Attorney
My Father died in May, 2005. My Mother is alive and I am 1 of 3 children. My brother has POA for my Father and Mother.
My brother becomes very defensive when any questions are asked about his responsibilities as POA. My Father had a will but my brother has not offered for anyone to see his will, including my mother even after she has asked to see it.
Do I have a legal right to see the will and the POA? I know the attorney who prepared the will and POA. What steps or procedure do I need to follow to ensure I am on solid ground when I ask the attorney for a copy of these documents? Thanks.
1 Answer from Attorneys
Re: Viewing a will and Power of Attorney
First of all, your brother DOES NOT have a Power
of Attorney for your Father. A POA is automatically extinguished upon death. So the
POA was canceled by operation of law the moment
your father died. Your brother has NO legal role
whatsoever, any more than a stranger, in relation
to your father's estate.
Second, probating the will is NOT optional.
Your father may have debts to third party creditors. Whomever has a copy of the will is
OBLIGATED to probate it, and the executor named
therein (or named by the court) must publish a
legal notice inviting would-be creditors to
apply to show any VALID debts they may have, or
forever hold their peace.
So, it is not just an obligation to the heirs,
but is an obligation to third party outsiders as
well. The will *MUST* be filed with the court,
and cannot be kept secret from other people.
You can talk to the Commissioner of the Accounts
in your COunty to see if they will act, or you
might file a Bill of Complaint against your
brother for an "accounting" of your father's
estate. Normally this would be done against the
executor, but where someone is withholding the
will from the court and others, and is presuming
to act as executor, I think it would work. You
can demand in discovery a copy of all the papers.
You could serve a subpoena against the attorney
for a copy of the will.
However, the attorney who prepared the will
must surely know all of this, and I would pay
him a visit warning him that you are about to
file a lawsuit if the brother does not probate
the will properly. You do not have to do anything to have grounds to ask, except that
you don't know if you are an heir under the will.
Since it is very likely that your mother is, it
would be best to secure a letter from your mother
requesting a copy of the will, so that you are
demanding this on behalf of both you and your
mother. However, I wouldn't let that stop you.
It is *NOT* necessary, just an extra. Because
the burden is on your brother to probate the
will, it is not your duty to prepare to demand it.
Also, your mother can cancel the POA from her
to your brother, if she is unhappy with his
handling of the father's will.
Note that there is a summary procedure for
small estates. The true executor of the will
does have a right to file an expedited,
simplified, slimmed-down version of a probate if
the dollar value of your father's estate is
small. However, it is not okay to do nothing.
It still must be filed with the court.