My mother recently passed away; she had blood cancer, which was diagnosed 2023. I was to receive half of all her assets. My brother, the executor of her will, coerced her during her illness to give him power of attorney. My mother and brother liquidated her significant 401(k) account into a fund to help with home/nursing care.
My brother is now stating that the balance, which was not consumed by nursing-home costs, is lawfully his. I have requested a copy of the power-of-attorney document. I have, in-hand, all wills by my father and mother where it clearly states all assets are to be divided equally, including stocks in her 401(k). I also have texts stating that the funds were liquidated for this purpose.
My understanding is that he failed in his fiduciary duty as the POA was void at death.
What can I do?
The Sister
It may or may not have been a good idea, at the time, to liquidate your mother’s 401(k) to pay for her nursing home, but desperate times sometimes call for creative measures. To do it all at once raises questions about tax implications and your brother’s motivations for creating such a pile of cash. Given that he now lays claim to it, the answer seems to paint him in a bad light.
The only way he could access this money — as you say, his POA duties were null and void upon your mother’s death — is if he deposited this money in a bank account with his name on it. Either that, or he added his name to an existing account in your mother’s name. It’s an old trick: telling an elderly parent you’re a co-signer while making yourself a co-owner.
Larceny, the theft of someone’s property, is a felony in most states, depending on the amount stolen. She is likely betting on your legal inexperience and good nature to get away with it. There is a statute of limitations on elder financial abuse in most states, and you should treat this as such.
