Inheritance rights question - family member still living...

[Advices]

My Mother passed away a couple of years ago. She has a brother and sister who are still alive. Their eldest brother has passed. They had two Aunts - one passed away last year. She has a house which she jointly owned with her sister. The only living aunt is now in a home and the brother of my mother has power of attorney for her and his sister has access to bank accounts which have a considerable amount of money lodged into them.

Money is being taken out of the accounts and being spent - it is not being spent on the remaining aunt. The house is in the process of being sold.

My question is - do I and my sister have any 'right' to an inheritance when the living aunt passes over ? Also, do the children of my uncle who has already passed have any rights? If so, should we start to act now legally as it really upsets me to see people spending some-one elses hard earned money without them knowing about it, it is very upsetting. Thank you.

 

[mathepac]

It all depends, if your aunt dies intestate or if she leaves a will and if her sister who co-owned the house and who pre-deceased her died intestate or if she left a will or if either of the aunts was married with a surviving spouse or surviving children.

 

[Advices]

It all depends, if your aunt dies intestate or if she leaves a will and if her sister who co-owned the house and who pre-deceased her died intestate or if she left a will or if either of the aunts was married with a surviving spouse or surviving children.

Txs so much for reply...

The aunt (who is my mum's aunt so my great aunt) who died (spouse is dead/no children) left all to her living sister (and vice versa).. she and her sister co-owned the house. So, the aunt that is now living (in a home, never married, no children) is entitled to everything (? is that right?).. but out of the living aunts two remaining relatives - one has power of atorney and one is executor (this was only done recently)....both have access to her money and a huge chunk of her money has been taken out of the bank and spent.....which is so so wrong.. the lady is still alive.. I can't believe it..

'Seemingly' there is a will from the living aunt saying all is to be split three ways between my late mum, her brother and sister - their other brother who is now passed is not mentioned....

 

[sinner]

Sounds like you really need to seek some proper advice. i dont know much about a power of attorney but if they are spending her money freely, it must be a pretty powerful document. You should do something about it before it's too late. Why dont you go an see an inheritance lawyer about it and get some general advice which should help you to decide whether to take the matter further.

 

[mathepac]

Sounds like you really need to seek some proper advice...

I absolutely agree.

... Why dont you go an see an inheritance lawyer about it and get some general advice which should help you to decide whether to take the matter further.

But on what basis? As the great-aunt / aunt is still living, her will, if there is one is irrelevant. The allegation is there may be some questionable behaviour between siblings, one of whom appears to have been granted a power of attorney over another.

If there is to be a challenge, then the power of attorney may need challenging, but thats not an issue for an "inheritance lawyer", if such a beast is to be found.

Sad as it seems, and without arguing the right or wrongs of the challenge, any challenge to or investigation of the power of attorney is likely to be protracted, divisive, expensive and the outcomes may seem unsatisfactory.

(I am not a lawyer).

 

[Advices]

Sounds like you really need to seek some proper advice. i dont know much about a power of attorney but if they are spending her money freely, it must be a pretty powerful document. You should do something about it before it's too late. Why dont you go an see an inheritance lawyer about it and get some general advice which should help you to decide whether to take the matter further.

Yes, we will have to approach a lawyer, I just wanted to get some thoughts/advice from others before I go down that route. From what I understand the remaining living aunt is not of sound 'mind' so power of attorney was given over to her nephew to enable him to manage her money, pay bills etc - I understand it is a pretty powerful document but morally would not have thought spending someone elses money for your own luxuries would be part of the deal..as for the other relative been given 'executor' status - I wonder how that was done?..

If it happens that when the house is sold and the poor aunt passes on - that other people are entitled to 'inheritance' - is there any way/law that would enable the money that is being spent by those that have access being taken back? (hope this makes sense)...

 

[Advices]

I absolutely agree.

But on what basis? As the great-aunt / aunt is still living, her will, if there is one is irrelevant. The allegation is there may be some questionable behaviour between siblings, one of whom appears to have been granted a power of attorney over another.

If there is to be a challenge, then the power of attorney may need challenging, but thats not an issue for an "inheritance lawyer", if such a beast is to be found.

Sad as it seems, and without arguing the right or wrongs of the challenge, any challenge to or investigation of the power of attorney is likely to be protracted, divisive, expensive and the outcomes may seem unsatisfactory.

(I am not a lawyer).

Txs for your reply. So basically, are you saying - its not worth the effort because any 'investigation would be very expensive?.. I'm struggling with it morally tbh..A poor woman who worked all her life is sitting in a care home while two others (one has power of attorney and one is executor) are extracting bit by bit large amounts of money from her banks accounts - not to spend on her but on themselves .... I was looking at a programme on 'elder' abuse lately, little did I think I'd come close to it in my own family...

As an aside - to be granted executor - whats the process - would the living aunts solicitor be 'partly' executor ? (that is not worded correctly sorry)..

 

[Bronte]

Isn't it also possible that the aunt in the care home intended the money to go to those with power of attorney? She may have no need for the money anymore.

 

[Advices]

Isn't it also possible that the aunt in the care home intended the money to go to those with power of attorney? Shy may have no need for the money anymore.

Is possible. The power of attorney was not granted/organised by the living aunt - it was organised by the holder of the power of attorney as the living aunt was deemed not to be fit to look after her affairs.

But if theres a will saying all, on her death, will be split three ways i.e. between the person holding power of attorney/executor/my mum who has passed away - who now is entitled ?.. As my mum is seemingly on the will - does that mean being her daughter I am entitled?. I just want to do the right thing firstly by my mum and her living aunt.

And that said, if I am entitled - the other two who have direct access to her funds are already taking money out of her estate - so in that case, do I have a right legally to tell them to stop?

 

[mathepac]

Txs for your reply. So basically, are you saying - its not worth the effort because any 'investigation would be very expensive?..

No - I didn't say that, please refer to my wording. In relation to getting advice I said

I absolutely agree...

and my sentence that included the word "expensive" was

... Sad as it seems, and without arguing the right or wrongs of the challenge, any challenge to or investigation of the power of attorney is likely to be protracted, divisive, expensive and the outcomes may seem unsatisfactory...

.. I'm struggling with it morally tbh...

Of course you are, as would any moral person in similar circumstances.

... As an aside - to be granted executor - whats the process - would the living aunts solicitor be 'partly' executor ? (that is not worded correctly sorry)..

In the context of a will, an executor is the person (or people as there may be more than one) who is / are explicitly named in a will and charged with the responsibility of executing the wishes expressed in the will of the deceased person.

BTW an executor has no powers until the person in whose will he or she is named dies.

 

[mathepac]

... But if theres a will saying all, on her death, will be split three ways i.e. between the person holding power of attorney/executor/my mum who has passed away - who now is entitled ?.. As my mum is seemingly on the will - does that mean being her daughter I am entitled?. I just want to do the right thing firstly by my mum and her living aunt.

And that said, if I am entitled - the other two who have direct access to her funds are already taking money out of her estate - so in that case, do I have a right legally to tell them to stop?

... As the great-aunt / aunt is still living, her will, if there is one is irrelevant...

 

[Advices]

Thank you for all of your comments and explanations.. it is very much appreciated...

I'm still struggling with the fact that someone is spending the aunts money on holidays for themselves/living it up while she is still alive - what advice would you give to me with this regard? Am I right in saying - if I am entitled to something when she passes - and if someone who has access now can spend it - I have no recourse on the funds they have spent?

If there is a will.. (which I understand you are saying is irrelevant as the aunt is still alive) - if there is one (and I was told there was one), when the aunt passes away (which I am not wishing upon her) - will I be entitled ?

Also, even though they are not mentioned on the will, should my aunts previously deceased nephews children be entitled? i.e. will the will be split 4 ways (living nephew/living niece/deceased nieces' child)?

Or if the will 'dissappears' - as I understood it was in the aunts house and moved to a a safe location but not to her solicitors - what happens then, who does the house etc go to? And would the aunts predeceased nephews children be entitled (he is not mentioned on the will)..

 

[Padraigb]

Is possible. The power of attorney was not granted/organised by the living aunt - it was organised by the holder of the power of attorney as the living aunt was deemed not to be fit to look after her affairs.

Does that mean that the power of attorney was granted by a court? If so, its exercise should be subject to the scrutiny of the court.

But if theres a will saying all, on her death, will be split three ways i.e. between the person holding power of attorney/executor/my mum who has passed away - who now is entitled ?.. As my mum is seemingly on the will - does that mean being her daughter I am entitled?. I just want to do the right thing firstly by my mum and her living aunt.

And that said, if I am entitled - the other two who have direct access to her funds are already taking money out of her estate - so in that case, do I have a right legally to tell them to stop?

No inheritance rights exist when a testator is still alive. It looks to me, on the basis of what you have said, as if your great-aunt might be the victim of fraud, and the issue is to have her rights vindicated, not to pursue any right that you think you might have.

I have a vague recollection that a procedure exists for bring a matter to court on behalf of a person who is not in a position (say through mental incapacity) to act for herself. The lawyers here should know more than I do. But I do know this much: to seek to vindicate your aunt's rights could be difficult and expensive, and you might have great problems with proof.

All this, and you don't seem sure that a will exists, or what its terms are.

 

[Vanilla]

You need to establish whether your great aunt has executed an enduring power of attorney giving your uncle and aunt power to deal with her assets. As padraigb says their use of assets should only be done with approval of the courts. If not, have they had her made a ward of court and are they her committee? If neither of these then they should have no access to her funds or house. You could apply yourself to have her made a ward of court and have yourself appointed a committee. Her will, if any, is irrelevant until she dies.

 

[Advices]

Thank you Padraigb.

From recollection I think my late mum and her brother/sister were involved in arranging the power of attorney through a solicitor as they believed she was not fit to do this herself (I think a report from a hospital doctor backed this up) - I'm assuming it was then granted by a court - I will have to check this.

Yes, I totally agree that it looks as if my great-aunt is a victim of fraud. What should I do in this case? go to a solicitor - are there any ones that specialise in this type of thing? I am only interested in first acting for my late mum and trying to ensure that right is done by my great aunt. From the feedback I am having though, I reckon it could cost me a lot of money. With regards to proof - the aunts home is paid by her pension and there is money over for clothes/minimun heat in house etc (house is empty) so she does not have any need for anything else (as yet) - can withdrawals of large sums of money (i'm talking 30k each time) and no account of where that money going be proof of fraud?

Also, who can say who an executor will be?.... If the person is incapacitated and someone else is looking after her affairs (having power of attorney) - surely the same woman cannot state through her solicitor who the executor will be? Can an executor only be given the 'role' through a will?

My late mum told me a will existed (I have not seen it myself) - everything to be split 3 ways between her and her brother/sister(her other late brother was not mentioned). Can I ask my great aunts solicitor is there a will ?..

 

[Advices]

You need to establish whether your great aunt has executed an enduring power of attorney giving your uncle and aunt power to deal with her assets. As padraigb says their use of assets should only be done with approval of the courts. If not, have they had her made a ward of court and are they her committee? If neither of these then they should have no access to her funds or house. You could apply yourself to have her made a ward of court and have yourself appointed a committee. Her will, if any, is irrelevant until she dies.

Thank you Vanilla, I'm sure I remember my mum saying something about a ward of court - again, do I approach my great aunts solicitor to ask this?..

And if they have been granted ward of court - with my great aunt still alive, can they sell her house and bank the money?. If they can, whats to stop them spending the proceeds from the house also?

Thank you again for your help.

 

[Bar101]

I have recently discussed setting up a power of attorney for a living person - "just in case". Having read the "standard" sample documents it appeared to give the person appointed an awful lot of power with limited restrictions. In other words if your aunt is well cared for in the home, you may have a major battle on your hands to fight this. They can certainly sell the house, but if she is a "ward of court" you could certainly force them to prove they have provided sufficent funds for her future well-being. However they could simply move into your aunts house to "take care of it" and sell their own house.

You do have another problem you need to consider. Given your mother is now deceased you have no inheritance rights to monies left to her in your great aunts will (when she eventually dies) unless it explicitly states that the inheritance should pass to your mothers children in the event of your mothers death. My understanding is that any assets left to a deceased beneficiary will simply be divided amongst the other named beneficiaries.

This lapsing of an inheritance would not apply if your mother had being left this money by her parents. Section 98 of the Succession Act allows for the inheritance to pass to the children of a beneficiary where the testator is a parent of the pre-deceased beneficiary.

 

[Advices]

I have recently discussed setting up a power of attorney for a living person - "just in case". Having read the "standard" sample documents it appeared to give the person appointed an awful lot of power with limited restrictions. In other words if your aunt is well cared for in the home, you may have a major battle on your hands to fight this. They can certainly sell the house, but if she is a "ward of court" you could certainly force them to prove they have provided sufficent funds for her future well-being. However they could simply move into your aunts house to "take care of it" and sell their own house.

You do have another problem you need to consider. Given your mother is now deceased you have no inheritance rights to monies left to her in your great aunts will (when she eventually dies) unless it explicitly states that the inheritance should pass to your mothers children in the event of your mothers death. My understanding is that any assets left to a deceased beneficiary will simply be divided amongst the other named beneficiaries.

Thank you for your reply. I understand they are planning to sell the house which is unoccupied and then halve the money (this I have been told of today). My biggest concern is that the lady is still alive and her money is being spent (not on her) - its truly awful.

I will have to find out details of a will - if any.

Do you know, if there is no will - what should happen when she passes on- would it go to her last two living relatives? or would it go to all of the living relatives?

Thanks for your time.

 

[Bar101]

Try this diagram which shows the succession plan when someones dies without a will (intestate).
[broken link removed]

As the grand-niece you are far behind the nieces and nephews.
The diagram is courtesy of http://www.traceysolicitors.ie/faqs.html which also includes some additional help on wills.


This next suggestion is a extremely "long shot" and is not based on any experience.
It might be worth at least asking an experienced Probate Solicitor if section 98 could be applied in this case where your aunt has no children.

 

[Vanilla]

The woman is alive- the will is irrelevant.

Sounds to me like your grandaunt has been made a ward of court and that either your uncle or aunt are her committee. They have to apply to the court for approval to sell her house or to use her money. Accounts for her assets must be given in each year and all money accounted for. It is very unlikely that they are pocketing the money themselves. How do you know that they are withdrawing such large sums? Rumour and speculation? Or have they been going around with the bank book, showing the withdrawal and smirking?

If you are genuinely concerned for your grandaunt's welfare contact the wards of courts office- there are procedures that one can start if there is a genuine problem with the committee.