Do my brother and I have to sue her for not carrying out her duty as Power of Attorney in the probate process?
My sister is the executor of my mother’s will and was POA. She used our mother's funds to maintain her lifestyle during our mother's illness and is still doing so. What legal recourse do my brother and I have make sure the petition for probate is carried out? My sister is unemployed at this time and realizes her lifestyle is getting ready to change.
My sister is living in our mother's house and has issues with hoarding. We have asked her to clean up the house so we can get it on the market, no progress there either. It will need repairs but until it is cleaned up we cannot make progress in getting the house on the market.
It has been 45 days since she was sworn in as Power of Attorney by the probate court and given forms to fill out. I have put together all of the account balances, stocks, and other assets needed to complete the petition for probate form. She is not doing anything at this point in time.
This is a tough one, but if she has taken money of your mom either as a POA or executor that is to be divided, she has breached her fiduciary duty to you and is unfit to be the executor and needs to be immediately removed. There are a lot of issues here and the estate administration has various deadlines and filings that need to be timely. The two of you need to retain an estates attorney immediately before all the assets are lost. Do this now; do not wait another day to get her removed.
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If your sister has been appointed executor of your mother’s will by the probate court, you have to give her at least 6 months to complete her assignment. If she has not been appointed, you can oppose her appointment by the probate court on the grounds that she was POA and used your mother's money and it needs to be investigated.
Further, her living in the house gives her little incentive to clean up and sell the home. Both reasons could disqualify her from becoming the executor. If more than 6 months have passed since she was appointed executor of your mother’s will, you can file a Petition for accounting with the court and the court will make her show what she has done to further the estate. If she has done little if anything, the court will remove her.
Robert W. Hughes, Jr. & Associates, P.C.
As an Atlanta probate Lawyer who handles a large number of Georgia breach of fiduciary cases, I urge you to hire counsel to address your sister’s apparent and blatant breach of fiduciary duties toward your Mother, you and your brother as heirs and/or beneficiaries to your Mother’s estate and your Mother’s estate; the likely misappropriation of your Mother’s funds; the likely conversion of your Mother’s assets and would be estate assets; as well as abusing your Mother’s lack of capacity through the use of a Power of Attorney (“POA”).
First, your sister has breached her fiduciary duty under the POA she held over your Mother when she used this POA to spend your mother’s assets to live and maintain her own lifestyle, and not for the sole benefit of your Mother. This is a blatant breach of fiduciary duty, which in my opinion, should be rectified uncompromisingly. Your Mother’s assets should have only been used by your sister for the benefit of your Mother, and no one else. Additionally, under the Georgia Supreme Court in Greenway v. Hamilton, your sister should pay back these the assets she squandered using the POA, to the estate. In short, she should repay the estate because, but for her actions, the estate would be compromised of the funds your sister squandered. This is because but for your sister’s actions, these assets would be in the estate of your Mother and eventually benefit you and your brother. This is largely the court’s holding and supposition in Greenway v. Hamilton. Again, based on your question and statements, your sister has breach her fiduciary obligations under O.C.G.A. § 53-7-1. The remedies to such a breach can be found in O.C.G.A. § 53-7-54. It is my opinion that few people in your position would allow your sister to get away with this deception, misrepresentation, and the taking advantage of your Mother’s lack of capacity. I would also say that in the alternative, to paying back the estate, the amount of inheritance your sister gets should be reduced by the amount of your Mother’s assets she used for her own benefit.
Second, your sister should not have been allowed to be appointed as executor or administrator of your Mother’s estate. This is because she has already shown a blatant inability to carry out her fiduciary duties and should be replenishing the monies she squandered from your Mother, back into your Mother’s estate. She should not hold the role of executor or administrator when she is essentially a debtor of the estate. The court would not likely know about these circumstances or do this on its own. You or your brother should bring this to the court’s attention and request an appropriate remedy. This should be done in the form of a petition (lawsuit).
You should file a petition (lawsuit) with the probate court to have your sister removed from her position as executor or administrator of your Mother’s estate. The position, as executor or administrator, should be taken over by you or your brother, or potentially the county administrator. Again, your remedies lie under O.C.G.A. § 53-7-1. You might also consider filing a lawsuit in the Superior Court to address the abuse of the POA your sister held over your Mother. You should definitely retain counsel and move forward aggressively. The links below are some additional resources you use to make a determination of your next steps in this situation. The Adams Law Offices specializes in this type matter and would be glad to assist you.
Duncan H. Adams, Esq.
THE ADAMS LAW OFFICES, LLC
