If my father died intestate, what are my rights to inherit from his estate?

He set up a Trust leaving 95% of his assets to me but that Trust was revoked when my parents divorced. He died without a Will, which means if I open an intestate probate I should get half of the remaining assets. However, my brother, who was the power of attorney for him while he was alive, decided to designate himself the sole beneficiary of all remaining assets, which was a little over $200,000. It is possible that my brother might have a signed document naming him the sole beneficiary with the bank but I doubt it. Which rules — laws of intestacy or the POD beneficiary established by a brother who used bullying to influence a man with dementia into excluding his daughter. Should I open a probate to get half the money?

Asked on February 14, 2016 under Estate Planning, Florida


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

d on what you write, your brother has seemingly violated the law and you could bring a legal action for your share of the estate--and possibly file criminal charges, too. A power of attorney is NOT a will and does not give the person with the power (called an "attorney in fact") the right to dispose of his principal's (the person giving him the power) assets after death. ONLY  will can dispose of the assets of the estates, and the attorney-in-fact may not retain or take any assets not given him by a will or, if no will, instestate succession. Also, since a POA gives the attorney-in-fact the right to act for the principal, that power dies when the principal passes away: a deceased person can no longer act, and so has no power to give to his attorney-in-fact. 
It is possible that while your father was alive, your brother trasferred certain assets to his own name; such transfers *may* be legal if they were within the scope of the power *and* were done in your father's interests or in accordance with his wishes. However, acts done against your father's wishes are void, and those done against his interests would likely be in breach of the attorney-in-fact's fiduciary duty, or duty of loyalty to his principal, and so may be void, too. 
d on what you write, there is reason to think something wrong was done here. You should consult with an attorney about your options to challenge your brother's actions, unless you value family harmony more than the money or principle at stake.

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