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Quite the complex situation

Discussion in 'Estate Administration & Probate Court' started by William Burgess, Jan 20, 2020.

  1. William Burgess

    William Burgess Law Topic Starter New Member

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    Ok. So I have this complex ordeal I am trying to figure out for my dad. Basically, my grandfather passed away and had remarried. He did not leave behind a will of any type. To my knowledge, half of the estate was supposed to stay with the woman he was married to, and half of it was to go to my dad (her step-son, the decedent's only son.) The estate stayed with the woman he was married to instead, and not much was ever said. We found out that a lady who was friends with the woman my grandpa re-married to, came in and was granted POA over her. She was appointed Durable POA over her transactions at Regions Bank, and non-durable POA over her financial, medical, and all other affairs of house and possessions on Apr. 20, 2019. On Jan. 17, 2019 she self dealt with herself and "sold" two pieces of property to herself. On June 21, 2019 she set up a trust and put the two properties in the trust. One of those pieces of properties was the one that my dad was supposedly the rightful heir to half of it. There are also questions are to where the money my step-grandmother had went to. The lady that was granted POA over her never had a job yet started going on expensive trips around the US and overseas. Another thing that happened is we were not informed of my step-grandmothers conditions. We all assumed she was doing fine. We later found out that the POA took control of her money and put her in a nursing home eventually. Before that she wasn't making sure she had adequate care, food, etc. It apparently got so bad to the point where she had the law called on her because she was stripping down to her underwear and chasing vehicles. This was well before the POA signed the properties to herself. She actually had a stroke not long before this POA made her move. My step-grandmother was visited by my father and a cousin of mine and she didn't kow she was staying in this place. She was under the impression that she would be going back home and wasn't aware of the situation. With her more than likely being deemed "mentally incompetent to control assets" and the like before the POA signed over property to herself shouldn't that be illegal? All I want to do is look into if the one piece of property can be signed over back into my dad's name somehow and things be made right. What would you all recommend be done with a situation like this to try to make things right? Thank you. Hopefully he can get what was rightfully his that the POA tried so hard to sneak away from him.
     
  2. adjusterjack

    adjusterjack Super Moderator

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    Nothing complex or unique about it. We see it all the time. When a parent remarries, he and his spouse often own everything jointly with right of survivorship. That goes for real estate, bank accounts and personal property. When he dies everything goes to the spouse and his biological children get upset because they lost the inheritance they thought they were "supposed to get" because it automatically went to the surviving spouse and the deceased never made a will that says otherwise.

    Once your grandfather died and your step grandmother inherited everything that was jointly owned, your grandfather's side of the family was out of the picture and can do nothing to change what happened.

    It is illegal for a POA to self serve but your Dad's side of the family has no standing to do anything except maybe report the POA's actions to the appropriate authorities.

    That can only be done by whoever owns the property or by a court of law. And, like I wrote, your Dad has no standing to do that nor would it benefit him to do so. Though he could certainly consult an attorney and review his options.

    Sorry, but nothing was "rightfully" his, under the circumstances you describe.
     
  3. William Burgess

    William Burgess Law Topic Starter New Member

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    It's not that what happened where someone outside of the family stepped in to do what was done was complex. It's all the individual actions and details that I feel make it more complex than necessary. So if what you say is true then I need to attempt to understand the Florida laws of intestate succession which state if a decedent passes without leaving a last will and testament there are certain actions that take place. I have spoke with a few other people that have said something about this as well. It states that without the will and there being a surviving spouse (my step-grandmother) and a direct descendant of the decedent (my father) that the estate is split in half and each party obtains a half of their own. I may be wrong about this, and if so please explain to me why this wouldn't apply. I meant to add that if this is in fact true, this POA shouldn't have been able to do what she did and my father should have a leg to stand on provided there is a way he can come forth as half rightful heir. I don't know if he can come forward as the rightful heir or how that would work but that is another thing I am trying to figure out. I have also looked into what the POA has done and heard that beings she self-dealt that she acted in interest of herself and not the principal and that could null and void her actions and the judge or court could appoint another POA to oversee the principal as should have been from the start of this all.
     
    Last edited: Jan 20, 2020
  4. adjusterjack

    adjusterjack Super Moderator

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    The law of intestate succession applies to property solely owned by an individual. I'll give you some examples.

    A house - Married couples generally own a house jointly with right of survivorship. When one spouse dies, the other spouse automatically owns the house by operation of law and the house is not part of the estate of the deceased and therefore not subject to intestate succession.

    As for personal property, personal property is presumed to be owned by the person who possesses it, unless proven otherwise. Therefore everything in the surviving spouse's home is owned by the surviving spouse.

    A car - Can be jointly owned or individually owned. If your grandfather's name was the only name on the title, it would be subject to intestate succession. If both names were on the title, then it became step grandmother's car and is not subject to intestate succession.

    Bank accounts, savings accounts, investment accounts - sometimes joint but sometimes individually owned, like an IRA, but often list a beneficiary who, again, automatically gets the money. An individually owned account with no beneficiary designation is part of the owner's estate and is subject to intestate succession. With a beneficiary, it isn't.

    If your father can prove that his father owned anything as sole and separate property, he can open probate with the court, be appointed representative of the estate, and act for the estate in recovering property owned by the deceased.

    That's true.
     
  5. William Burgess

    William Burgess Law Topic Starter New Member

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    Ok. That makes perfect sense. The property by law should be my step-grandmothers anyways, right? Well, provided that the POA had non-durable POA and my step-grandmothers was deemed mentally incompetent before the land was sold by the POA to the POA. I hear that terminates her involvement if that POA is non-durable. Another thing I feel like should be asked but if this was brought up in court is there any possibility that either my dad or I could fill in as POA beings we are both considered family? I've again heard that the court typically looks for family member to fill that position if one needs to be appointed. How would I, or my dad, go about this?
     
  6. zddoodah

    zddoodah Well-Known Member

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    Some initial questions:

    1. When did your grandfather get married to his widow?
    2. When did your grandfather die?
    3. How was title to your grandfather's home held?
    4. Was your grandfather's estate probated?

    I'm not sure who "we" refers to, but why would anyone inform you about the condition of a woman to whom you had no relation?

    I'm not really sure what "that" refers to, but no one on this or any other message board is in a good position to comment intelligently about the conduct of this woman who was your former step-grandmother's attorney-in-fact (or conservator). Regardless, it's not something you have any legal standing to be concerned with.

    You'll have to answer the questions I asked for anyone to address this question intelligently (beyond telling you to consult with a local attorney). The first response in this thread is premised on speculation that might not be correct.
     
  7. William Burgess

    William Burgess Law Topic Starter New Member

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    Ok. I will try to answer these questions to the best of my ability.

    1.) All I know is that they were married a few years before my dad was born and he was born in 1957. I tried to find a marriage license but couldn't other than ancestry.com has something where it was recorded.
    2.) My grandfather passed away April 12, 2008.
    3.) I am not sure what is meant so if you could explain further what you mean, I would appreciate it.
    4.) To my information the estate was not probated.
    As for the other things, "we" was referring to my father and I. "That" was referring to the POA (who shod have been null and void due to it being non-durable and the principal being deemed mentally incompetent. Our family was related to her through marriage. We spent a lot of time up there in the house on this property in question visiting with both her (step-grandmother) and him (my grandfather) I believe the reason no one notified us of her condition is because there was neglect towards the principal from the POA. They got in an argument and didn't speak for a while, there is money unaccounted for while principal was taking all these trips, yet never had any money of her own that was known of, and I do believe Children and Family Services got involved because there were some illegal things going on like neglect and they saw fit to turn their findings over to the officlocal Sheriff'se from what I understand but then nothing. If there are any other details needed I will do my best to fill in the gaps. Thank you.
     
  8. Zigner

    Zigner Well-Known Member

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    This is KEY.

    The real estate was "owned" by somebody - who owned the real estate, and in what manner did they own it? If the real estate was owned "with right of survivorship", then ownership of the of the real estate transferred in full to the surviving person (or people) on the title. No probate would have been necessary.
     
  9. William Burgess

    William Burgess Law Topic Starter New Member

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    I recently was looking into what people do when vehicles have been abandoned for many years and came across this. There is some private property where my dad's vehicles are stored that I am working on getting out of there and I noticed there are a few vehicles that have interested me as far as restoration goes. A truck that my grandpa owned and a car that my great grandma owned. I assume that they will come up as the owners of the vehicle and there are both deceased. Does this mean I can contact the DMV and submit the info and begin to claim them through this method or is there something I'm missing here? If there is any additional info needed that I have left out I will do my best to answer it or include anything that comes to mind. Thank you.
     
  10. Zigner

    Zigner Well-Known Member

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    Here is a link to your other thread that is related to this matter: Quite the complex situation

    It sounds like there may be some probate matters that need to be handled.
     
  11. zddoodah

    zddoodah Well-Known Member

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    Close enough.

    Here's what I'm asking: There are different types of joint ownership, and they have different legal implications. For example, Bob and Carol might own property as tenants in common. When Bob dies, his interest in the property will pass to his heirs (either pursuant to his will or the state intestate succession law).

    On the other hand, Bob and Carol might own their property as joint tenants with the right of survivorship. When Bob dies, his interest will pass to Carol, regardless of what his will or the intestate succession law says.

    There are other types of joint ownership, but those two are the most common types. The most recent deed to the home should say something like "[Grantor name] grants to [Grandfather name] and [step-grandmother name], as joint tenants with right of survivorship" (or ". . . as tenants by the entirety"). As someone mentioned earlier in this thread, married couples generally do not jointly own their property as tenants in common. Rather, they typically own it in some way that ownership bypasses the will or the intestate succession law.

    If your grandfather and his widow owned their property in such a manner, then it wouldn't matter what any will or the intestate succession law says because the property would have passed to her outside of the probate estate. If, in fact, that was what happened, then anything that happened after your grandfather died is a legal irrelevancy as far as you're concerned.

    Also, given that your grandfather died over a decade ago, it may very well be too late to do anything about this even if some interest in the home should have passed to your father.
     
    Red Kayak and William Burgess like this.
  12. zddoodah

    zddoodah Well-Known Member

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    Copying from the private message you sent me:

    Assuming they were married at the time of this deed, it would almost certainly be presumed to be joint tenants or tenants by the entirety. Under the circumstances, those two things would have the same result: that the widow would succeed to your grandfather upon his death and the property would not be part of the probate estate. Accordingly, there is likely nothing for your father to do.
     
  13. William Burgess

    William Burgess Law Topic Starter New Member

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    Well one last thing I can think of for now unless more is added pertaining to estate. By the way, not that it means anything legally, but to explain why I am trying to do this is bottom line my grandpa claimed he wanted me to have this estate of 8 acres that is now owned by the POA. His wife, my step-grandmother, claimed that she was fine with it as well but was slowly losing her mind, and I just assume that the POA got involved and saw that she could do this, which I know happens all the time. I also don't need to be reminded that word-of-mouth does nothing in court of law and isn't the equivalent of a legal binding document. My dad should have pushed harder to have the land secured. So now the only scenario that I can think of would be if the current POA, beings the principal is deemed mentally incompetent, is investigated, which is supposedly happening already, then I'm hoping they can go back and turn back the action of her self dealing the property to herself. I'm hoping she is deemed void of being POA and hoping the court will appoint a new POA. I have heard that family is the first considered but my step-grandmother has no family except my dad and me, again, by marriage. I was hoping that possibly my dad could be appointed POA, and if so he could make a transaction with me to obtain the land putting the land back in our family. I don't think he could get in trouble for that because the POA is supposed to do the best things for the principal and what the principal wants which was for that to happen. I know it is a specific "what-if" but what do you think the chances of that even happening are and if that is even possible what would I or my dad need to do to try to work towards this?
     
  14. adjusterjack

    adjusterjack Super Moderator

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    Wrong. He would be acting just as illegally as you claim the other POA is or was acting. If your step grandmother wants you to have the property, she doesn't need a POA. She can either deed it to you, leave it to you in her will, or put it in a trust for you.

    If she is not competent to make such decisions then POA is not appropriate and someone would have to go to court and petition to become her guardian or conservator. If that guardian or conservator wants to sell the property to you for its fair market value and use the proceeds for her care, that's fine. But "giving" it to you is never going to happen if she is incompetent.
     
  15. William Burgess

    William Burgess Law Topic Starter New Member

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    I thought the purpose of a POA was to deal in interest of the principal? If the principal wanted someone to have it wouldn't that be doing exactly that? Does that have to do with her being incompetent? It keeps being argued that she is mentally competent as well so given that scenario could the principal overthrow the POA and would the land go back to her given the circumstances? I know the principal would be free to do whatever she wanted then but I would like to understand the scenario that I laid out in the beginning of this reply. Now of she wanted anyone to have it and was mentally incompetent then I would think it would be a matter of her not being able to back that claim and it would look like self dealing or dealing outside of the interest of the principal. Either way I'm listening to what you have to say and I do appreciate you clearing things up. So as far as being POA we would need to try to remove her as that due to her actions and then petition in court to become her legal guardian?
     
  16. Zigner

    Zigner Well-Known Member

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    Further to what was said - you've got a BIG hurdle before you even get to the point of transferring the property to you. You need to show that the POA actually acted improperly. If the PO paid the same as would have been realized in an arms-length transaction, then nothing improper occurred.
    If one gains guardianship, then the POA is, essentially, irrelevant. I would suggest that you speak with a probate attorney or an elder-law attorney to further assist you in this matter. There is nothing more that a forum can do for you.
     
  17. William Burgess

    William Burgess Law Topic Starter New Member

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    I agree and for the record if the principal was incapacitated, beings POA did not have a durable power, then she had no authority to sell the land anyways and especially not to herself for it was something like the typical $10 or $100. I just wonder what the process of this needs to be because apparently I need to report an abuse of power from her power of attorney, then my dad (I think) would have to apply for guardianship or conservatorship, and if granted at least the principal would be taken care of and wouldn't have the current lady stealing from her because we still do believe that she drained her finances as well. My dad went to speak with the principal and she thought she still had a home to live in. That could be because the POA did this behind her back or it could be her mental incompetence is interfering. So with all this on the table would it really be a private attorney I would have to speak with or would another type of attorney be best to consult? Thank you all for your help.
     
  18. Zigner

    Zigner Well-Known Member

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    That question doesn't make sense.
     
  19. William Burgess

    William Burgess Law Topic Starter New Member

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    What I meant was a probate attorney, not private. I was replying with my phone and it auto-corrected. Basically, at this point, I want to look into getting the POA who abused her power to have her power revoked and actions corrected. I would like to look into a petition to the court for guardianship/conservatorship and try, if possible to right as many, or all, of the wrongs done to the principal ad if I can do anything within legality to have the land back in either my dad's or my name then I want to do that as well. I just wish I knew the steps to perform to accomplish all of this and what kind of attorney I would need to consult. To make matters worse I am on limited income. I don't have a lot of money but I have heard about legal assistance at a lower cost or for free in some cases, like hiring a pro bono probate attorney. Would this be a good next move in your opinion, if I may ask.
     
  20. William Burgess

    William Burgess Law Topic Starter New Member

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    I found something out which might further mean I need a probate attorney but wanted to add that info to this. When my grandpa signed the land over to himself and second wife it was a warranty deed. It was said that it has to indicate with right of survivorship, otherwise the half that belongs to the deceased goes to his heir or enters probate. So I assume now, unless I am incorrect, that the property should have in fact went into probate, and we still have the issue with the POA where she needs to be reported, investigated, and removed. So, now I'm wondering what can be done with this info and if it really changes anything.
     

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