Question: When it came time to sort out my father’s estate and probate his will (my sister and I are the sole beneficiaries). we began to suspect that during the last years of my his life when he was most vulnerable, our stepmother – who has two children of her own by prior marriages -- used Dad’s power of attorney to fatten her wallet and benefit her and her children. Dad inherited more than $500,000 when our mother died six years ago, yet his estate is reporting only $45,000 in assets.

When we confronted her, she said Dad’s funds were used to pay for his care and their joint living expenses. We know there is a premarital agreement and that she relinquished claims against his estate.

Our lawyer who told us that under Dad’s power of attorney, our stepmother could have done practically anything with his money without making an accounting. We haven’t been able to get any of Dad’s records because, as executrix of the estate, our stepmother refuses to produce them. The lawyer says even though we are beneficiaries, we are not entitled to any of these records due to privacy laws.

Because our father’s estate is now so small, the lawyer suggests we put it behind us rather than run up large legal fees. But we are devastated and believe Dad was taken advantage of. Is the law such that a devious stepmother can walk away with everything, or do we have any rights to ensure that family assets are passed on in accordance with our father's wishes?

Answer: Unless your father’s funds evaporated like the morning dew at sunlight, we tend to agree with you that something is amiss.

The remarriage of elderly people can cause many intra-family problems unless addressed in advance with appropriate documents that clearly state the intentions of the individuals involved and provide required safeguards and protections. Not to do so often results in conflicts.

First, consider seeking the opinion of another lawyer. As his spouse, your stepmother had a fiduciary duty to your father not to benefit herself or her children from his assets – that is, unless his power of attorney was so broad as to specifically allow her to do so, which seems most unlikely to us.

Try to find a copy of the power of the attorney from your local clerk of court -- assuming it was recorded -- and review it carefully to find out exactly what authority your father gave your stepmother as she may have overstepped her authority. Check the gifting provisions, especially.

Since you and your sister are the sole beneficiaries under your father’s will, we will wager that in return for the transfer of assets to your stepmother at the time of the premarital agreement, she waived her rights to share in his estate. Otherwise, she would now be making a claim for her elective share or as an omitted spouse. In addition, we assume there would be provisions about support issues, including who was to pay what and from what source.

Taking the NextStep: We believe you and your sister may have a good faith basis to bring an action to remove your stepmother as executrix based upon alleged malfeasance as your father’s fiduciary. Through the discovery process, your lawyer should be able to get the records you need, not to mention your Dad’s medical records that may shed light on his state of mind during the time you believe the funds were diverted. If you are correct, you should be able to have your stepmother removed as executrix and seek to have the funds returned to the estate.

Be forewarned: This is tough, lengthy litigation, and no lawyer will take this on without a sizeable retainer and expense deposit from you and your sister. So measure your steps carefully and don’t bite off more than you can chew.