What if the personal property bank accounts named in a Will are gone before the testator passes?

My sister got POA from mom, who has Alzheimer’s, and took all of the personal property to pay for nursing home expenses. She now wants to be rembursed for additional costs from the estate. Can I put a claim in for the money that she took?

Asked on September 14, 2018 under Estate Planning, Texas

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

No, you cannot. A will has NO effect prior to the testator's death, and does not control the disposition of her assets. She could have spent them or given them away; or a person with a POA from her could spend them on her behalf (e.g. for nursing home expenses) or for her benefit. The will gives you no right to challenge pre-death expenditures, and based on what you  write, you sister used her POA properly, for valid expenses, so there is no ground to challenge this on the basis of violating fiduciary duty.


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