Legal Question in Wills and Trusts in New York
New Will?
My mother cannot find her original Will. Does she need the Original Will (she does own her own home).
I am the executor of her Will.
Recently my borhter petitioned the court for guardianship. He had no medical evidence at all that she was incompetent. My mother agreed to have a guardian appointed to her because she did not want my brother involved in her finances or care anymore. I was appointed guardian. My question is my brother took alot of money from my mother ($100,000.00) from her without her consent or knowledge over a four year period. He used this money to pay his wife to come visit my Mom. How does my mother go about getting all of most of this money back from him. Can I as guardian and/or or as executor have the right to get it from him when my mother passes away or does that need to be put in a new Will. I have a notarized note from my mother stating she wants to be paid back this money. I talked to one lawyer and they didn't want to get involved because my mother was appointed a guardian and they thought it might not be valid. I have not yet gotten the guardianship papers yet from 3 months ago, so I am not sure that the papers say she is incompetent. Any advise on how to proceed.
Thanks!
1 Answer from Attorneys
Re: New Will?
If mother is deemed incompetent she cannot execute another will. Normally the Court directs the guardian to file the original will with the Surrogate�s Court. I would check with your mother�s prior attorney to determine if he is holding the will.
If a family member improperly took money from the mother, you would have the right � as her guardian � to commence an action for the return of the money. You may be able to commence the action on behalf of your mother before your commission is provided by the Court.
The cause of action against your brother continues after your Mom�s passing. You, as executor, would have the right to commence the action on behalf of the estate.
If you want to further talk about this problem feel free to telephone.
Mike.
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