Conservator Questions

[TPK]

Soc,

I am writing on behalf of my spouses brothers, this is their issue and need help. We have been kicking this around for quite some time now.

Their father died 1/04. Mother is still alive but deemed incompetent by the court. Court appointed their other sister guardian and my wife co-guardian. Neither have power of attorney.

Seems as though quite a bit of money is missing after father died. Brothers guesstimate there should've been $200K+ shown, only $20K was shown by sisters to the court.

Father's will left everything to the mother.

I have a bank statement in father's name with my wife as beneficiary. This statement shows interest on 2 CDs and a savings account. There's about $50K between the accounts. Accounts were closed after father's death.

1. Should my wife have gotten the money, or should it have been given back to the mother?

2. Technically, wife could've been the only one to close the accounts?

The brothers now want to petition the court to have the court appoint a neutral party guardian. The sister has co-mingled the mother's money with her own.

3. Is it a law in every state that you have to file with the probate court the assets of a deceased person, a will if any, and who will get the deceased's assets?

Brothers insist sisters did not file with probate court (my lawyer is checking on that for me). My father's mother died 2 years ago (in Pa.) and he told me he HAD to file with the probate court by law.

4. What do the brothers have to do legally to get the sister's to show the father's assets upon death?

5. Would they have to file an OSC to have the court appoint a guardian?

Where do they start??

Thanks as always.

TPK

[socrateaser]

>1. Should my wife have gotten the money, or should it have
>been given back to the mother?

Guardians have a fiduciary duty to act in the best interests of their ward. Assuming that the mother lawfully inherited all of the marital estate, then the guardian(s) would not be able to spend the money on themselves, unless they could show that it was in the mother's best interests, such as reimbursement for caregiving, etc. Otherwise, they would have a duty to preserve the assets and generate as much income from them as possible, for the mother's benefit. Failure to do so would be a breach of fiduciary, and would subject the guardian(s) to both an action for reimbursement plus any lost income, as well as potentially sanctions for contempt, depending upon how the court order is written.

>2. Technically, wife could've been the only one to close the
>accounts?

Calls for speculation on my part. Nevertheless, the guardianship court order probably granted power of attorney to both guardians, so they certainly could have invaded the assets for their own personal use.

>
>The brothers now want to petition the court to have the court
>appoint a neutral party guardian. The sister has co-mingled
>the mother's money with her own.

Comingling is a breach of fiduciary/trust. You have a case in probate for reimbursement plus any lost income on the investments. The counterargument will probably be that they had to pay their reasonable expenses in order to allow them to care for the mother. Very fact dependent circumstances. Judge will be highly skeptical of money that a guardian(s) spent on themselves.

>3. Is it a law in every state that you have to file with the
>probate court the assets of a deceased person, a will if any,
>and who will get the deceased's assets?

Depends on whether or not there are creditors. The purpose of the probate is to resolve the estate of any debts owed, including heirs, beneficiaries, creditors, taxes, etc. But, if no one challenges the estate, then the guardian could just ignore probate in the hopes that the problems would fade away, and no one would ever challenge the estate.

>Brothers insist sisters did not file with probate court (my
>lawyer is checking on that for me). My father's mother died 2
>years ago (in Pa.) and he told me he HAD to file with the
>probate court by law.

Well, there's the law, and then there's what people actually do. If all the money's gone, and the guardians's have no assets with which to reimburse the estate/trust, then you will be pretty much SOL, unless you contact the district attorney and file an embezzlement complaint, which if prosecuted, could result in some jail time (and that would get you sole custody of your child, now wouldn't it?).

>
>4. What do the brothers have to do legally to get the sister's
>to show the father's assets upon death?

File a complaint with probate court claiming breach of trust and fiduciary.

>5. Would they have to file an OSC to have the court appoint a
>guardian?

Depends on what the procedural posture of the existing probate case is. But, it's in probate court, for sure.