Expert: Jack Toomey - 9/16/2009

Question
QUESTION: Say someone dies (a mother), and there is a dispute over some of her possessions.  The children say the item(s) belong to them, but the husband of the deceased says they were left to him not the children.  The children remove the items from the residence of the deceased and the living spouse.  The husband then files a complaint with the sheriff threatens to charge the children with felony theft.  Can he do that?  What proof would they need to have?  No one saw the children take anything and they have denied they took the items.  



ANSWER: I don't understand part of your question.  What do you mean by "files a complaint with the sheriff threatens to charge.....".  Who is threatening to charge?  The sheriff or the children?

Sorry.  Who is doing the charging?  The sheriff or the husband?

---------- FOLLOW-UP ----------

QUESTION: Thanks for answering so quickly!  And sorry I didn't make the questions clear.
The husband filed a complaint against one of the two adult children of the deceased (mother).  The sheriff has taken the complaint and says the husband wants to press charges against the adult child of the deceased (mother).  The husband has hired an attorney, the adult child really doesn't have the funds to hire an attorney and does not live in the same state as the husband of her mother (the deceased).  The mother left several different versions of a will, however, the husband never filed or executed the will of the deceased (its been almost 4 years.  The husband has remarried (a couple of months ago) and has made a new will which leaves everything including the deceased (mother) stuff to the new wife and the new wife's adult children.  The children of the deceased were invited to the wedding of their mothers husband to his new wife.  While there, they removed items that had belonged to their mother.  The husband and the new wife want those items for themselves and don't want the children of the deceased to have them.  Thanks!!!

Answer
Sandra,

I'll be honest.  Your first question was a lot easier to understand than the second with all of the various players involved.

I don't understand why the husband needs an attorney if he is alleging that one of his own children stole things from the estate of his deceased wife.  The prosecutor's office acts as his attorney.  You originally asked if the husband could charge one of the adult children with theft and how could he do that without a witness.  Many crimes do not have witnesses and its up to the police to investigate and determine who committed the crime.  I am assuming that is what is happening now.  It seems like a fairly easy case to investigate since the obvious suspect(s) are the people who had access to the property.

I will tell you this.  In MY jurisdiction there is no way that this would be investigated as a criminal case.  It would be referred to the civil courts since it has everything to do with the execution of a will.  That does not mean that every police department would take that stance.

I don't know who is who but it could be that is why the husband has an attorney and that is to sue to get the property back.

This is once of the most confusing questions that I have ever had but in the end it is against the law to take property that does not belong to you so if the sheriff is investigating then it could result in criminal charges against whoever stole the property.