The Moneyist: My mother wants to give me 70% of her estate — my sister is furious

Dear Moneyist,

My beloved father passed away in September 2013 and left everything to my mom in his living trust. My sister and her husband just had fraternal twins at a relatively advanced age for having children (she is 47 and he is 51). They are now demanding to know what will be given to my sister and their kids. I was named the executor of the estate for both of my parents’ living trusts.

My mother has always had a strained relationship with my sister and her husband. As a result, my mother does not want to show them what they will receive.

Since they’ve had kids, she will leave my sister’s family money, but it will not be a 50/50 split between my sister and me. It will be more like 30/70 (me receiving the 70% of funds, in addition to the family house). She knows this will upset my sister, but my mom and I both feel that I’ve done a better job of taking care of my parents during their old age and, overall, have had a more positive and uplifting relationship with them. My mother says it’s her money and she will do with it what she sees fit.

My brother-in-law and sister are now threatening to contact a lawyer to sue her to force her to view the living trust. Can they legally do this? Also, when my mother passes away, if my sister and brother-in-law don’t agree with the terms of the living trust, can they come after me to counter the conditions of the living trust as I am the executor of her estate?

Anthony in Houston

Dear Anthony,

Happy Mother’s Day in advance. (I wanted to get that out of the way first.)

Clearly, your sister and her husband want a secure future for their children, and a hefty chunk of inheritance would make that a lot easier, especially when it comes to financing their education. With a 30/70 split, they may still get that. Children may provide leverage when asking an ageing parent to add a zero or two to an inheritance, but that doesn’t appear to have worked here. From what you say, I assume that (a) you are single as you haven’t mentioned a partner or children and (b) it looks like this strained relationship with your mother shows no signs of abating. (Let’s hope they don’t read this, or else they will already know their cut without going through the courts.)

Children may provide leverage when asking an ageing parent to add a zero or two to an inheritance

Your brother-in-law or sister could not sue your mother for signing a testamentary document simply because he is not happy about who gets what in your mother’s will, says Donna Barwick, senior fiduciary officer at wealth advisory firm Wilmington Trust in Atlanta. He could challenge the validity of the document if there are grounds such as lack of testamentary capacity. “In that regard, a child with a close relationship is sometimes accused of unduly influencing the parent because of that close relationship or dependency,” she says. “Or, in an extreme case, that person could perhaps be sued for tortious interference with inheritance. But the executor or trustee couldn’t be sued for carrying out the instructions in a valid document.”

Your sibling and her husband have done you a huge favor by giving you a heads-up on his plans. This gives you time to enlist a good lawyer to document conversations with your mother to determine her wishes, preferably not in the presence of either of the grandchildren; it also gives your mother the opportunity to document her mental capacity to understand the size of her estate and how she wants to divide it, Barwick adds. “Make sure that all of the state law formalities of execution are complied with,” she says. The Moneyist has received far too many letters from people who fear their elderly parent is being coerced into giving a new girlfriend or boyfriend, or trusted son or daughter, all their money.

If you wanted to face their ire today, your mother could also set up a living trust for her grandchildren, your sister and you. “Sometimes lawyers recommend a living trust, as opposed to a will that does not become effective until death, because the person is alive and able to testify as to their intentions,” Barwick says. (Assets put in a living trust avoid probate.) Although living trusts can be contested just like wills, your mother could clearly state her reasons for her decision, if what you say is true (and I have no reason to doubt you). This is particularly useful for someone who fears that a husband or wife won’t honor their will after they’re gone. I’ve had more emails from greedy family members about inheritances than I’ve had hot dinners. (Well, almost.)

Good luck with yours and, when the time comes, remember to enjoy your 70%.

Do you have questions about inheritance, tipping, weddings, family feuds, friends or any tricky issues relating to manners and money? Send them to MarketWatch’s Moneyist and please include the state where you live (no full names will be used).

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