My mom died after being married to my dad for many years; (2) soon after mom died a much younger woman (Liaretta) started following dad around; (3) eventually just before dad diedhe changed his will and made Liaretta the personal representative of the will; (4) we have filed a petition to revoke the will, but we have discovered that the vast majority of assets were transferred to Liaretta before dad died. We are concerned that by the time we get to trial on the will contest, Liaretta will have spent or transferred the funds she duped dad into transferring to her before he died. What can we do?

A: Generally, assets that were transferred before the decedent's death can be set aside or revoked based on the same grounds that a will could be set aside. Those transfers could be set aside (an action for rescission) based on fraud, undue influence, mistake or lack of capacity. Another option is to initiate a cause of action to establish a constructive trust. However, the standing to bring these actions belongs to the personal representative. What does one do if the personal representative is the abuser? First, the litigant could petition the court to appoint an administrator ad litem. Generally, an administrator ad litem is appointed by the court when the personal representative has an interest that is adverse to the estate (such as when the personal representative sold assets from the decedent before he or she died). Another option is to petition to remove the personal representative based on a conflict of interest with the estate.

Further, the litigant always has the option to petition the court to issue a temporary injunction with or without notice freezing the assets transferred to Liaretta. However, courts are generally hesitant to issue this type of injunction. Further, the litigant has to follow a specific procedure that can become expensive. It should be obvious that it is critically important to have an advocate who is very proactive in discovering assets that may have been taken from the decedent before he died. Contact Matthew A. Linde, P.A.

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Matthew A. Linde, P.A.
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