Dear Quentin,
My dad died on Nov. 12, with no will, in Indiana. He has three children. He moved to be near his home town in Indiana from Louisiana about four years ago. One of my siblings was there during his illness and signed a do-not-resuscitate.
My dad has a small life-insurance policy, a 401(k), a small pension, totaling less than $ 100,000. My siblings and I do not know who the beneficiary is on any of these things. We suspect he may have made my uncle — his only sibling — the beneficiary.
I was told (by my uncle) that his ex-wife would receive his small pension because she was the last wife before he died, and that is the law in Louisiana.
Dad has a home in Indiana that he recently refinanced for about $ 50,000 less than it is worth and has a truck worth about $ 10,000 more than he owes on it. He has various personal possessions, none of it worth very much: clothes, household items, photos, etc.
My siblings and I all live in Louisiana. Due to hurricane damage to our homes only one of us has the means to travel right now. We have generally agreed that one of us will travel to Indiana and remove the mementos, photos, etc.
“‘He has possession of my father’s wallet, personal papers, and keys to his home.’”
That is where things get sticky.
My uncle accessed my father’s checking and savings while he was dying to purchase a niche in a cemetery. (My siblings and I were able to handle much of the next-of-kin paperwork remotely. )
My uncle has removed my father’s truck from his house, and drove it to his own house. He has called all of the creditors and account holders and reported the death. He did all of this without a death certificate.
He has possession of my father’s wallet, personal papers and keys to his home. He is refusing to turn any of these items over to us, despite not being the next of kin.
He insists that my siblings and I cannot touch anything in the house until it all goes to probate. We did not ask him to do anything. He says he has an appointment in December to see an attorney. Why?
He insists we need an executor. One of my siblings has agreed to handle that. And even if we all agreed to let my uncle act as executor, he has not been appointed anything yet.
Honestly I don’t think my uncle had any business accessing the funds while my dad was under a DNR and too ill to know what was going on.
He has already been through the house multiple times, opened the safe, disposed of medications. Who knows what else? I know he may have our best interests at heart, and may have a need to be involved.
Can he keep us out of the home? Are we permitted to donate household goods, clothing and remove mementos? No one is trying to reverse potential beneficiary decisions or steal from the siblings.
Do we need probate for the house? It is starting to make us feel very stressed in a time when the siblings wanted to video chat and heal and find peace.
Caught Between the Uncle and a Hurricane
Dear Caught,
Bereavement is a difficult time, even without such shenanigans from your uncle.
Let’s generously assume that your uncle wants to protect your father’s estate, and make sure that everything is above board and distributed equally. He is correct that your father’s estate must go through probate, so all of his assets are accounted for and distributed to his heirs. He is most certainly incorrect in the way he went about it. This should be addressed as soon as possible.
Your uncle was likely trespassing in your father’s home, and had no legal right to remove his property or his papers. A lawyer should request the return of those items so he/she can settle your father’s estate. If your father died without a will, his assets should be distributed among his children. His insurance, 401(k) and pension will be distributed to named beneficiaries.
All other assets should go through probate. Probate is only avoided if your father had a living trust. That does not appear to be the case here. Hire an estate attorney and appoint an administrator of your father’s estate (or an “executor,” if there was a last will and testament). Your family should not remove mementos from the house until his estate has been settled.
The estate lawyer has myriad functions, some of which are outlined here by RMO Probate Litigation: “Collecting proceeds from life-insurance policies, assisting in the payment of bills and debts, resolving income-tax issues, obtaining appraisals for the decedent’s real property [and] transferring assets in the decedent’s name to the appropriate beneficiaries.”
I wish you both a speedy and satisfactory resolution of your father’s estate.
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