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Tuesday, August 17, 2021

Dad's house was sold right before his death, leaving a beneficiary out of luck

This reader had quite a nasty surprise after her father passed away, and she raises a good question: what can be done after a person's death when the incident giving rise to the problem happened before that person died?

"My dad had a will named me trustee. Named my son his sole beneficiary of his home and over $350 000 dollars, from his bank account the day after he died. I am livid and so hurt! My fathers home was sold right before he died. When it clearly states to be left to my side ! I don’t know what recourse I may have. His estate was cleaned out and his will was probated and all this was kept from me. I’m doing my best to figure this all out, but what a slap in the face to find that there was a will. Someone mailed me the original will and death certificate anonymously. Because My self and my son have been taken advantage of!"

When someone is named as a trustee of a will, that usually means they are both executor and trustee. That's not always the case, but it's important to your situation to understand what happened with your father's will. As always with these questions, I have to do a bit of guessing.

If you were the executor of the will, nobody else could legitimately probate your father's will. Either the will you were given is not the one that went to the probate court, or you mean something different when you say you were the trustee. Perhaps you mean you were named as trustee for anything going to your son. I have no way of knowing. You definitely need to know whether the will you received is the same as the one that went through probate. Contact the probate court and get a copy of it.

Let's say, for the sake of answering your question, that the will in question is a valid will that leaves the house to your son. If the house is no longer in the estate when your father died then the gift to your son is said to have adeemed and your son doesn't get anything.

However...

You said the house was sold immediately before your father's death. I assume this was done by someone using a power of attorney as it is unlikely that your father did that himself. I would look into that. to see whether the person acting as power of attorney is also the person who benefitted from the house being sold. Most likely the person using the power of attorney already knew of the contents of your father's will. That is likely why all of this was done quietly without anyone advising you.

A person acting under a power of attorney has certain obligations. One is to act in the best interests of the person he is looking after even when that goes against his own interests. He is not allowed to benefit financially from the role other than as allowed in the document. In my opinion, taking the step of selling the house violates those basic responsibilities. He basically re-wrote your father's will by selling the house. And how did that benefit your father? This will get even more interesting if the person acting under the power of attorney is the executor and beneficiary.

This is worth talking to a lawyer about. The idea would be to ask a judge to direct the sale proceeds of the house to your son. I believe your note says that your son was also supposed to get $350,000 that was in the bank, so that would be part of the lawsuit as well. The lawsuit is going to be all about whether the sale of the house was done in good faith. The law here is going to get complex, so try to find someone with experience in estate litigation.




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