What steps can heirs take to stop a former power of attorney after death and recover misused estate assets?

Detailed Answer

When a person dies, any power of attorney they granted ends immediately. Under North Carolina law, a power of attorney terminates on the principal’s death (N.C. Gen. Stat. § 32C-2-703). After death, only the court-appointed personal representative may collect and manage estate assets.

If an agent continues to use the former power of attorney or has already taken funds or property improperly, heirs can take these steps:

1. Notify the personal representative. Heirs should immediately inform the personal representative about the agent’s unauthorized actions. The personal representative owes a fiduciary duty to the estate under N.C. Gen. Stat. § 28A-2-1 and must secure and recover estate assets.
2. Request a formal accounting. Heirs may demand an accounting of estate transactions. The personal representative must file an inventory and account with the clerk of superior court under N.C. Gen. Stat. § 28A-14-1. The accounting will show any asset transfers by the former agent.
3. File a caveat to block distribution. If heirs believe assets remain at risk, they can file a caveat in the clerk’s office. A caveat pauses distribution until the court reviews the issue (N.C. Gen. Stat. § 28A-12-6).
4. Seek removal or surcharge. Heirs may petition the court to remove or surcharge the personal representative if they fail to act. Surcharge lets the court hold the personal representative accountable for losses caused by the former agent’s misuse of assets.
5. File a civil action. If assets remain missing, heirs can sue the former agent for breach of fiduciary duty or conversion in superior court. They may recover the value of misused property plus interest.
6. Report criminal misconduct. Misuse of estate assets by a former agent may constitute embezzlement or theft. Heirs can report the conduct to law enforcement or the district attorney for possible criminal charges and restitution.

Key Steps for Heirs

• Confirm the power of attorney ended at death under N.C. Gen. Stat. § 32C-2-703.
• Alert the personal representative and request an estate accounting.
• File a caveat to freeze estate distribution if assets are at risk.
• Petition the court to remove or surcharge the personal representative for inaction.
• Pursue a civil lawsuit for breach of fiduciary duty or conversion.
• Report the agent’s conduct to law enforcement for criminal prosecution.

If you suspect a former agent has misused estate assets or if you need to halt unauthorized actions, contact Pierce Law Group. Our attorneys have many years of probate administration experience. We will protect your loved one’s legacy. Email us at intake@piercelaw.com or call us at (919) 341-7055.