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Competing interests of Personal Representative need auditing


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#1 SamuelAdams

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Posted 19 February 2013 - 10:53 AM

My mother died intestate last year at 78 yo, just one year and a couple of weeks after receiving a $275,000 government settlement. Somehow all of that money disappeared leaving 0 home equity and no assets - the sale of her personal possessions were just enough to pay funeral expenses and a few small bills, leaving a $700 account to be split up four ways (deceased brother's children get a split share). I had to correct the lawyer who made it an even split, forgetting Wyoming's Law of Descent.)

Her brother, my uncle, had access to her joint checking account all that time, and in fact suggested she apply for this settlement a about three years ago. He did not hold power of attorney. My sisters and I waived our rights to serve as Personal Representative in his favor as he is an experienced financier.

I have just received the lawyer's Final Report, Accounting and Petitition for Distribution - a month late and too late to file an objection witht the Clerk of Court. (That's *two* mistakes for the lawyer - to whom do I complain?)

I was naively expecting an accounting of that $275,000, but no mention is made of it as, presumably, it was all spent - or transferred - into my uncle's account - by the time of her death.

My mother did not travel and even if in debt before receiving the settlement could not conceivably have burned through absolutely all of it in just over 365 days.

How do I demand a complete accounting of those monies? Is this separate from the estate settlement - if not, can I petition to keep the estate open?

Thank you

#2 knort4

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Posted 19 February 2013 - 12:55 PM

Please be more specific in your description of the reason she got the money--what type of government settlement was it? You or your attorney may want to do a little more research or answer a few more questions before you ask for an accounting. You say the account was a "joint checking account"--joint with whom? If it was a joint account with your uncle's name on it, then by automatic right of survivorship law the money became his when she died and regrettably, there is nothing else you can do about that. I hope you are absolutely certain that he did not hold a power of attorney. If the settlement came from a court case, you need to try to look at the paperwork from the court files to see exactly how your mother's name was listed as a party or recipient from this lawsuit--was she mentioned by name only, or is it listed as "THE ESTATE OF YOUR MOTHER'S NAME". Was this money put into an escrow account handled by the attorney involved in the government settlement and then paid to her? If I were you I would try to find out how the check was issued--whether to your mother as an individual or whether it was to her estate and then seek an attorney's guidance as to perhaps whether the handling of the check was proper or not. If it should have gone to her estate it seems like it should have been handled diferently and there may be steps that you and your attorney can take to correct that error if in fact that is what happened.

#3 Guest_FindLaw_Amir_*

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Posted 19 February 2013 - 02:11 PM

Who is in charge of your mother's estate?

#4 SamuelAdams

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Posted 19 February 2013 - 05:18 PM

Thank you for your replies. I hate being put in the position of someone who essentially accuses a distant uncle of robbing a widow and orphans, but so be it.

I want ocular evidence of honesty. Bank statements going back to Feb 91 would work.

Knort4:

1. The government settlement was from the US Dept. of Labor for a settlement on Part B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA). My father was exposed to radioactivity as a nuclear physicist while working at Hanford in the 50s and died of colon cance in 1998.

2. A year (Feb 91) before my mother died (March 92) she authorized electronics funds transfer to her checking account on a signed form, where she named only herself when asked "Names of ALL persons on the account." No mention was made of my uncle on that form (Is this omission significant to the US Govt.?). She died just over a year later, in March 2012.

I know only from hearsay that my uncle had access to her account well prior to her death and in fact well prior to that payment transfer but I don't know exactly what form of access or on what date his access began. I am lead to believe it was simple joint access prior to the settlement funds transfer (making my mother's statement of sole access inaccurrate), and that he did not have power of attorney at any time (but I have no evidence either way on that) - I have absolutely no evidence of which or when. I am not inclined to take oral assurances.

3. Findlaw_AHK

My uncle is the Prsonal Representative of the estate. Interestingly, he is paying the laywer $3,000 out of pocket for personal services.

Thanks again for your guidance

#5 SamuelAdams

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Posted 20 February 2013 - 03:17 AM

corrections :

Second paragraph should read:
I want ocular evidence of honesty. Bank statements going back to Feb 2011 would work.

2. A year (Feb 91) before my mother died (March 92)

Make that Feb 2011 and March 2012

Can't believe all my typos - evidence of how upset I am over all this. Likely to end in nothing but a destroyed relationship with my uncle, who may well have complied with the letter of the law. How can I know what happened to that $275,000 in one year?

#6 harrylime

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Posted 20 February 2013 - 04:15 AM

How much do you know about that account? Was your uncle a joint owner?

If he was a joint owner, then the funds remaining in the account likely passed to him by operation of law when your mother passed away.

There is a possibility that you could make an argument that your mother, in making your uncle a joint owner, did not actually intend for the account to transfer to him upon her death - that he was a joint owner only for convenience purposes or that he exerted undue influence on her to set up the account that way. That is generally a difficult argument to make since there normally is not much evidence regarding the deceased's intent.

You would really need to consult with a Wyoming attorney to determine where Wyoming law stands on that issue and what your chances of a successful challenge are.

#7 knort4

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Posted 20 February 2013 - 07:15 AM

You say it's hearsay from someone telling you he did not have POA, but I suspect that whoever told you that may be lying or may be sympathetic to your uncle. It's hard to see how he could have cashed this money without having POA. Do a GOOGLE search using the phrases in the search box simultaneously" "Wyoming" and "elder financial abuse" and "Wyoming" and "abuse of power of attorney" to find out if Wyoming has laws regarding this. As far as getting bank statements, I thought that only executors or administrators would be the only ones that a bank would release that information to. You or your attorney really do need to focus in on getting information about how the settlement check was issued--exactly whose name was on the check (I'm wondering why it wasn't made payable to your father's estate, and why no effort was made to determine if there were other beneficiaries involved besides his spouse) because that is going to be the determining factor in looking at how business law operates in your state and whether he is in fact guilty of wrongdoing or not--it looks highly suspicious and if the law is in your favor you or your attorney may be able to negotiate with him to return some or all of the funds in order to avoid his being threatened with a lawsuit. I was just wondering--did your father leave a last will and testament that was probated in court or did he also die intestate? You also need to inquire as to whether a federal income tax has been prepared for your mother's last year of life and whether any type of Form 1099 or any other type of tax document was issued to her regarding the settlement that was received.

#8 Guest_FindLaw_Amir_*

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Posted 20 February 2013 - 07:34 AM

I agree with the previous poster, you may want to consult with a local Wyoming Probate & Estate Administration Lawyer to address this issue. Many lawyers do offer a free consultation.

#9 knort4

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Posted 20 February 2013 - 12:10 PM

Would it be possible for you to go through your mother's personal papers to try to find any relevant paperwork regarding the claim with the Department of Labor, paperwork that would show the claim ID assigned to your father? Claims were handled through the National Institute for Occupational Safety (NIOSH, a division of Centers for Disease Control), specifically through the Office of Compensation Analysis and Support (a link to their office is shown on the www.cdc.gov website). Perhaps you, after consulting with an attorney, could contact them to see what, if any, information they might release to you as a surviving relative, but their website says they can release certain information only to an authorized representative (such as personal rep or executor) or someone with written permission. Sure would be great if they could provide you with a photocopy of the front and back of the cancelled check so you could see exactly what happened. Even if he in fact did not have power of attorney, let's hope he didn't force her to sign the check over to him.

#10 Fallen

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Posted 20 February 2013 - 12:36 PM

You'll get an accounting for pre-death financial review only if you hire an attorney and get that person to start digging into this via the probate court. Because you've inexplicably left this far too late for no apparent reason, you'd presumably have to ask for leave to address this "out of time", and having a damn good explanation for why you'd wait until the end of the probate period to bring it up (even if the attorney never sent you another thing the entire time, e.g., an estate inventory).

Whether you'll be successful, we cannot know. This ain't a DIY project (which I gather is something you're pondering, given the very vague "how" question).

Even if she put the brother as a joint owner on a bank account, there are still ways to look into whether she thought it was a constructive trust situation just because he insisted X-Y-Z and that he'd handle this or that. (Also sounds like you were pretty disconnected from your mom's life, btw.)

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#11 SamuelAdams

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Posted 20 February 2013 - 04:25 PM

>Fallen

You wrote:
you've inexplicably left this far too late for no apparent reason, you'd presumably have to ask for leave to address this "out of time", and having a damn good explanation for why you'd wait until the end of the probate period to bring it up (even if the attorney never sent you another thing the entire time, e.g., an estate inventory).

I wrote, on original post [dates added in brackets]:
I have just received the lawyer's Final Report, Accounting and Petitition for Distribution [Feb 16, 2013] - a month late [filed with Clerk Jan 10 2013] and too late to file an objection with the Clerk of Court [Feb 15 2013 deadline for Feb 19 filing].

I promptly [Feb 17 2013] emailed the estate attorney, cc'ing my uncle, the Personal Representative, that the estate distribution was innacurate, according to Wyoming's Rule of Descent, and that USPS records proved I and my siblings were not given any time at all to file a timely written objection with the Clerk. He replied by email the next day that my distribution correction was noted and would be made, not mentioning his failure to give adequate notice, which proof I had attached - all three siblings received the very first notice no sooner than two days before the deadline for written response.

So we have an incompetent estate attorney. So I see no problems there in asking for an extension.

Your final parenthetical remark is both singularly unhelpful and unwelcome.

#12 SamuelAdams

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Posted 20 February 2013 - 05:04 PM

>Knort 4 - re: your most recent reply

Actually, my second post correctly specified the payee: "The government settlement was from the US Dept. of Labor for a settlement on Part B and E of the Energy Employees Occupational Illness Compensation Program Act of 2000 (EEOICPA)".

I have my mother's signed EN-20 statement authorizing an electronic funds transfer of an approved $275,000 settlement to a checking account she stated as in her name only (the form asked: "Names of ALL persons on the account"), together with a USPS receipt and an acknowledgment letter dated 18 Feb 2011 stating the funds would be deposited by 4 March 2011.

I have no bank records. Only executors -- or personal representatives, as they are called for intestate cases in Wyoming -- have such access.


But it seems clear the money went into her regular checking account.

What is not clear is:

1. When did he get access to that account, or another with access to those funds: before or after distribution of funds?

2. What form was that access - joint access checking account &/or power of attorney?

3. What financial transactions did a 78 year old woman cause to deplete $275,000 in just over 365 days, leaving absolutely no personal estate or home equity whatsoever??

4. With whom, and why?

#13 SamuelAdams

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Posted 20 February 2013 - 05:48 PM

>Harrylime

Thanks. I am afraid you may be right: if my mother authorized a joint checking account, the letter of the law may be fulfilled in giving a reasonably well-intentioned brother carte blanche to hold himself innocent of robbing a widow and orphans. A lifelong stockbrocker is suspect in any case.

I have also looked at elder abuse law in Wyoming. They are well positioned to investigate bank fraud - and cost nothing. I have enough paperwork and credible claim for investigation, given high proportion of elders financially fubared

Trying to figure out if I:
1: call my uncle and ask some pointed questions, for what may be last conversation (he has refused all details to date)
2: call a Wyoming estate lawyer for a free consult (though I have no funds for follow-through)
3: call elder abuse hotline in Wyoming and let them loose

#14 harrylime

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Posted 20 February 2013 - 06:04 PM

Trying to figure out if I:
1: call my uncle and ask questions
2: call a layer
3: call elder abuse hotline in Wyoming and let them loose


There is no reason that you can't do all three.

Things may be different in Wyoming. But my experience is that elder abuse agencies have their hands full with potential abuse of the living. You may or may not get much interest.

#15 knort4

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Posted 21 February 2013 - 07:43 AM

Contacting your uncle would serve no purpose--he has not cooperated up to now and has no reason to cooperate now, especially if he thinks someone (you) are trying to gather evidence to use against him for possible criminal activity. Calling a Wyoming "estate" attorney would not be the best choice--I would be consulting with a business law attorney--and if you mention the value of the disputed funds ($275,000) that would whet their interest and perhaps accept the first consultation for free in hopes of charging a fee later on or after recovery has been accomplished--plead poverty and they will at least talk to you to evaluate your case. Right now you have no direct proof of elder abuse, so your best scenario to get satisfaction is to have your own attorney to represent your interests. The Department of Labor would not technically be a payee, although they are a participant in the claims process; when I mentioned the word payee to you, I was referring to who the actual payee was who was shown on the check that your mother received--if it was made payable to her, then it could properly have been processed through her bank account, but if the check was made payable to the ESTATE OF YOUR FATHER'S NAME and your uncle went ahead and deposited that into her personal account, that is improper and needs to be corrected. You may even have to file a lawsuit against uncle before you get discovery on the actual check. My previous posting that you could have contacted the CDC about this case perhaps was not the best choice--I did further research and I will provide a link that shows you or your attorney may want to contact the Department of Labor by phone or by e-mail:( http://www.dol.gov/owcp/energy/ ) to find out if you have rights as a survivor to request your father's claim file--and it also shows that a check can be processed by electronic transfer deposit if a form is submitted to request that--perhaps that was the option your mother or your uncle chose and there might not even be a paper check to follow the trail of? Hmmmmmm---very interesting!!!

#16 Fallen

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Posted 21 February 2013 - 08:56 AM

In future, it'd be best to put someone else's remarks in quotation marks vs. going the bracket response route. A bit difficult to follow.

My point is that you don't wait until the end of the probate process for a final distribution phase to raise questions about what's in your mom's estate even if there were no initial accounts/inventories send to you. It's unclear why you believe the final distribution report would be the appropriate time to be raising questions/issues about expenditures, even if they were post-death (and it appears here that you're referring to stuff that was gone before death, or as of/shortly after death).

You are free to file a motion with the court for leave to file your objection to the report out of time (a/k/a late) based on you not receiving it until X. Again, I don't know whether this will do you any good.

"So we have an incompetent estate attorney."

There is no "we" here, I'm afraid; the estate attorney works for the personal representative/the estate. While you're an heir at law of the estate, it's not the same thing as the attorney working for you.

My last comment merely pointed out the obvious in a matter of fact way; it doesn't make sense that you wouldn't know what your mom was doing with her dough (or what the uncle was doing with it) unless you were disconnected, and it seems you've been sabotaging yourself since her death without realizing it (by remaining disconnected from the probate process).

I'll echo PG's advisory "warning" with a twist: (Many) legal issues are complicated. Explanations and comments here might not fully identify or explain the ramifications of your particular problem. I do not give legal advice as such (and such is impermissible here at any rate). Comments are based on personal knowledge and experience and legal info gleaned over a quarter century, and every state has differing laws on and avenues to address most topics.  If you need legal advice, you need to consult (and pay) a professional so that you may have someone to hold accountable.  Acting on personal and informational advice from a stranger on the internet is a bad idea -- at least not without your own thorough due dilience/research and confirmation as it applies to your situation.  :)


#17 knort4

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Posted 22 February 2013 - 07:44 AM

If I were you I would give serious consideration to sending the DOL a letter (which includes your e-mail address and telephone and both of your parents' names and dates of death) saying something like "I'm checking into my deceased father's and mother's personal affairs to clear up loose ends. I found an electronics funds transfer form that authorized the settlement money to be deposited in her account. Was that ever done? What was the date and what was the amount? What bank was it deposited in and what is the routing number/account number, please? And ask them why wasn't this money made payable to my father's estate?" Since you are a surviving relative, they will probably be sympathetic enough to give you some basic information about how your father's case was handled and they will tell you what information you are eligible to receive and what information you can not receive due to privacy laws. Do NOT tell them about your uncle's involvement in this matter because then that would tip your hand to let them know you were on a fishing expedition trying to gather evidence.

#18 Tax_Counsel

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Posted 23 February 2013 - 01:09 AM

Since you are a surviving relative, they will probably be sympathetic enough to give you some basic information about how your father's case was handled and they will tell you what information you are eligible to receive and what information you can not receive due to privacy laws.


The DOL employees may be sympathetic, but under the federal Privacy Act of 1974 (codified at 5 U.S.C. ยง 552a), they may not disclose information about this to OP. Specifically, subsection (b ) states:


(b ) Conditions of Disclosure.-No agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains, unless disclosure of the record would be-

(1) to those officers and employees of the agency which maintains the record who have a need for the record in the performance of their duties;

(2) required under section 552 of this title;

(3) for a routine use as defined in subsection (a)(7) of this section and described under subsection (e)(4)(D) of this section;

(4) to the Bureau of the Census for purposes of planning or carrying out a census or survey or related activity pursuant to the provisions of title 13;

(5) to a recipient who has provided the agency with advance adequate written assurance that the record will be used solely as a statistical research or reporting record, and the record is to be transferred in a form that is not individually identifiable;

(6) to the National Archives and Records Administration as a record which has sufficient historical or other value to warrant its continued preservation by the United States Government, or for evaluation by the Archivist of the United States or the designee of the Archivist to determine whether the record has such value;

(7) to another agency or to an instrumentality of any governmental jurisdiction within or under the control of the United States for a civil or criminal law enforcement activity if the activity is authorized by law, and if the head of the agency or instrumentality has made a written request to the agency which maintains the record specifying the particular portion desired and the law enforcement activity for which the record is sought;

(8) to a person pursuant to a showing of compelling circumstances affecting the health or safety of an individual if upon such disclosure notification is transmitted to the last known address of such individual;

(9) to either House of Congress, or, to the extent of matter within its jurisdiction, any committee or subcommittee thereof, any joint committee of Congress or subcommittee of any such joint committee;

(10) to the Comptroller General, or any of his authorized representatives, in the course of the performance of the duties of the Government Accountability Office;

(11) pursuant to the order of a court of competent jurisdiction; or

(12) to a consumer reporting agency in accordance with section 3711(e) of title 31.


The estate represents the decedent and the personal representative of the estate could get the information upon request to the any agency. But the agency may not disclose it to curious relatives, sympathy or not.

#19 knort4

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Posted 25 February 2013 - 09:15 AM

The DEEOIC link does provide a claimant status page where a claimant can check the status of a claim with a Claim Identification Number.

#20 knort4

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Posted 26 February 2013 - 09:54 AM

If your father had a last will and testament that was probated in court, then the executor of his estate could also contact DEEOIC to get information about the claim.




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