Attorney for Property Accounts After Death: Executor's Rights

You are the executor, and the estate looks smaller than it should. Money left your parent's accounts in the last months or years, and the person who held the power of attorney will not give a clear answer, or has not given one at all.

This article explains what records the former attorney must keep, how to ask for them, and when a court passing of the attorney's accounts may be the next step. It is general information, and these situations often turn on details that a lawyer should review.

Why the executor has an interest

A continuing power of attorney terminates when the grantor dies. After that, the deceased's real and personal property vests in the personal representative as trustee for the persons beneficially entitled, subject to payment of debts. Your job as estate trustee includes collecting the assets and distributing the residue to those entitled.

If money went missing while the attorney was acting, collecting the estate's assets can include asking where it went. First the facts need to be understood.

What the former attorney must keep, and what to look for

An attorney under a continuing power of attorney is a fiduciary who must act diligently. The Substitute Decisions Act also requires accounts of all transactions to be kept in accordance with the regulations.

The regulation says an attorney or guardian must retain accounts and records until certain events, including the incapable person's death and delivery of the accounts and records to the personal representative. Whether and how a former attorney hands them over in your case is worth confirming with a lawyer.

• Bank and investment statements covering the period of the power of attorney may help you trace the money.
• Receipts and invoices for payments made for the grantor's care and living costs may explain some withdrawals.
• Any records of transfers to the attorney or family members, and the reasons for them, may be important.
• A copy of the power of attorney document itself is useful to have on file.

How to ask for records

Start calmly and in writing. Explain that you are the estate trustee, say that the power of attorney ended at death, and ask for the accounts and records to be delivered to you. If you do not yet have a certificate, say so, and note that the person named in the will typically applies for it. Banks and other institutions may also release statements to you once your authority is established; what each one requires varies, so ask them directly.

Keep a copy of every request and the date. If the attorney cooperates, review the records before reaching conclusions. Many gaps have ordinary explanations, such as cash used for care costs, and others do not.

When a passing of the attorney's accounts may be the next step

Under section 42 of the Substitute Decisions Act, the court may, on application, order that all or part of an attorney's accounts be passed. The attorney, the grantor, or the persons listed in section 42(4) may apply. Whether an estate trustee, or a particular beneficiary, falls within that list in your case is something a lawyer should confirm, as is the exact process and any deadlines.

A passing of accounts is a court review of what the attorney did with the money. It is usually considered when requests for records fail, when the records that arrive do not add up, or when you need a formal answer before distributing the estate.

Keep your own role separate. If someone asks you, as executor, for accounts, an executor need not render an account other than by inventory unless a person interested in the property or a creditor asks. On passing your own accounts, the judge may make full inquiry into the property and its administration and may inquire into complaints of misconduct, neglect or default causing loss to the estate. So expect your own records to be looked at too, and keep them in order.

What to do next

• Confirm who is the estate trustee and obtain the certificate if one is needed.
• Write to the former attorney asking for accounts and records, and keep a copy.
• Collect bank statements for the period of the power of attorney from the institutions.
• Prepare a simple timeline of large or unusual withdrawals and transfers.
• Do not confront family members with accusations until you have reviewed the records.
• Speak to a lawyer about a court passing of accounts under the Substitute Decisions Act, and about time limits.

Frequently asked questions