Wow - complete disregard for decedent

[sengsational]

Because I figure the decedent already "gifted" to the POA person while alive, this would be too much of an uphill battle.


Because of that, I would not start with a lawyer. I'd use a copy of the death certificate and will to get a copy of the most recent tax return. If there was evidence of significant money, I'd hire a lawyer, otherwise I'd decline to manage the distribution of assets.

 

[Car-Guy]

+1

 

[isisdave]

The OP's very title to this thread -- wow - complete disregard for decedent -- is not consistent with taking care of someone's needs for four years. I think there is more going on than was presented here; perhaps more between OP and the caretaker semi-relative, or between decedent and caretaker.

At any rate, she asked for advice, so here's mine: it depends on the size of the estate after the charitable bequests.

If the remainder is relatively small, like $10,000, ask for some documentation of expenses in caring for the decedent for those four years, including even mileage and any amounts she might have been given. Then make appropriate accommodation for her costs and time when you distribute the assets. In other words, treat it as a claim against the estate.

If it's much larger, then tell caregiver that the estate is going to probate, that she can make a claim if she wishes, and that if the claim is unreasonable, the biggest, ugliest, nastiest probate lawyer in town will be hired.

 

[LateToFIRE]

Because I figure the decedent already "gifted" to the POA person while alive, this would be too much of an uphill battle.


Because of that, I would not start with a lawyer. I'd use a copy of the death certificate and will to get a copy of the most recent tax return. If there was evidence of significant money, I'd hire a lawyer, otherwise I'd decline to manage the distribution of assets.

How is a tax return going to show you what assets remain in the estate? The OP will likely need to be appointed executrix in order to gain access to bank accounts, safe deposit box, brokerage accounts, medical and nursing home bills, insurance records, etc., a paper trail that would show where the assets are/were, what was spent, how much remains (and/or should remain).

That said, you're probably correct about the assets having been "gifted" to the caregiver by now - that is usually how this scenario goes. But, OP needs to know just how much is in question in order to know how to proceed.

 

[euro]

I’d at least consider the thought process of the sister

- since 2020, it has only been BIL and his sister. In her mind the OP’s side of the family is no longer relevant. This is her family. Now an I law is swooping down into her family’s business (as she sees it)

- she has been a caretaker for him, in some capacity for quite a few years. In her mind it isn’t fair that somebody outside of their family who hasn’t been involved gets a share.

- I’m going to assume the will was made when both BIL and OPs sister were alive and of sound mind. I don’t know when they made it if they would have intended to be the same, given the outcome.

- I agree first talk to an estate planning attorney. But I’m not sure I’d be inclined to get in a big fight with the sister from afar. If OPs sisters wealth were from OPs side of the family, via inheritance, I may be more inclined to get involved. If whatever is left was from their (or mainly his) efforts, I don’t know that I’d feel so much entitled to the money, even if it was willed to me.

- if OP felt strongly about the charity getting its share, possibly alert the charity.

- while I can see the OP wanting to carry out BILs wishes, would BIL have wanted that to happen potentially at the expense of his own sister (assuming she has probably run afoul of her POA responsibilities )

While I don’t have all the details and I’d definitely listen to the estate planning attorney, all else equal I’d be inclined to walk away if it was going to be a lot of effort for modest sums.

It is always tempting (and understandable) to ask: "what would the deceased have wanted", but in MY experience, this is ALWAYS doomed to failure. There are laws, there is a will, and there is a clear process to be followed. "What ifs" have no place here. The person left clear, legal instructions and that is what the focus needs to be on. Any spurious statements, letter, promises, etc are irrelevant. Period. This can have really "unjust" consequences sometimes, but it is the only way to proceed. Once the estate is distributed and closed, all parties are free to agree to whatever they want (i.e., the OP is free to gift whatever share she might have received to the possibly well-deserving caretaker.

 

[The Cosmic Avenger]

As noted, the OP does have the option to decline to be executrix and leave it to the court to appoint one. I think I would give that strong consideration in this case.

I agree, although I do want to point out that the reason many people don't do that is that a third party then gets paid for services that would otherwise go towards a family member. However, that seems to be the least of the OP's worries now.

 

[rk911]

This may be naive, but I was just blown away today. My brother-in-law, who has been living in Memory Care for the last 5 years, recently passed away. I heard the news a week ago and today I pulled out a copy of his will and realized I was named the executrix. I called his sister, who has been acting as his POA ever since my sister (his wife) died in 2020. After asking how she and the family are doing, I told her I had read over his will and as the executrix, I would need to get a complete list of assets so I could begin the probate process with his will. My sister and her husband had identical wills. Both had charitable bequests and then left the remainder to their sisters, split 50/50.

She suggested that she could just handle everything since as his POA, she had been handling his affairs for the last several years. I told her I needed to fulfill my legal responsibility. Besides, my BIL left a significant portion of his assets to charity, after which any residual was to be split 50/50 between the two of us. She said she should get everything because she had been doing the work to visit him and manage his affairs the last four years, and did not seem inclined to cooperate with the idea of probating the will. Just WOW!

I will be reaching out to an attorney who handles contested estates on Monday. Another attorney I know volunteered to write her a letter, but I’m thinking of engaging a firm who could handle litigation over the estate if it comes to that. I am not sure of the funds involved once his charitable wishes are fulfilled and any creditors are satisfied, and I’m fairly confident it is not a huge amount, but it is just not right for her to disregard his wishes so blatantly.

Has anyone else experienced something like this? If so, any advice?

Best advice...let the atty handle any disagreements or challenges. Try not to take it personally. I've been either the successor trustee or an 'assistant' to the named successor trustee for family five times since 2003. Except for one incident everything went smoothly. The atty for a named beneficiary wrote to me and 'demanded' to know what each of the other named beneficiaries were receiving. My atty handled that.

Be open with your SIL. My first time as successor trustee involved a trust with five named beneficiaries. I provide each with a quarterly report which included where I was in locating and paying debt as well as an updated value of the trust holdings.

Your obligation and role as Executrix is to follow your BIL's wishes as written. Keep that in mind and you'll do fine.

 

[CRLLS]

Many have asked if the estate is worth the effort. If it were me, I would ignore them. If I cared enough to accept the appointment while alive, usually this is agreed to beforehand, and want to respect their wishes, I would take the high road and fight tooth and nail to follow the Will. If one would fight for the money side, they should fight for the no-money side too. Being executor (executrix) is a job that pays in the heart, not in the pocketbook. As such, whether required or not, with Will in hand, I would open Probate proceedings. That way the courts reinforces the executrix appointment.

I have seen different results with different families. One where there were some sketchy transactions that came to light after the death. As a beneficiary it was never mentioned. Best just let it be. Another where the Executor expected problems with one of the beneficiaries. Fortunately those expectations were never surfaced, and everything went smoothly. One never knows what might occur.

 

[sengsational]

How is a tax return going to show you what assets remain in the estate?

After tax accounts will show dividends and interest. Withdrawals from tIRA and 401k will show as income. The investment house and bank will get identified for more research into balances. It's not perfect, but will probably show how prepared the POA person was. If they've already run off with the money, and I didn't really need the money, I'd just say "life is too short", and move on. My personal approach would be that I don't want to fight an entrenched battle, especially if there's little low hanging fruit.

Many have asked if the estate is worth the effort. If it were me, I would ignore them.

Good point. Doing what you agreed to is laudable. I might be willing to fight for no booty if I thought the writer of the will would have wanted it. But if I imagined the writer rolling over in his grave when he learned of the clash between people he was fond of, then I'd let it go. So it would depend on something outside the written word and law for me.

 

[MarieIG]

The primary beneficiaries here are charities. It is laudable that OP is seeking to effectuate the wishes of her sister and BIL.

 

[Aerides]

If it were my sister, who pre-deceased her husband, and then one of his sisters took on his care, I'd be willing to forgo my own financial benefit - assuming she really was involved and took good regular care.

But the charity angle - if my sister and her husband had wanted a substantial sum to go to charity, yeah...that I'd fight for. That's honoring my sister's wishes (though, in reality, the smarter thing to do would have been for a significant donation to be arranged at the time of her death, vs. waiting for him to pass as well - a lot can and does happen after one spouse dies.

If this BIL had re-written the will in the past few years, all of this would be moot. And for all we know he just wasn't in the mind or strength to do so, and perhaps made some comments to his sister that implied she should get more, or not. Lots of unknowns.

But I'd get a lawyer to handle it and step back.

 

[Texas Proud]

I read one post where they stated that going to financial institutions is an option... I disagree...


When my mom passed I knew she had a benefit at her teachers retirement account... so I called as Executor and told them who I was and was looking to find out who was listed as beneficiary... they would not tell me... I tried a number of ways and nothing...


One time I called and forgot to tell them I was the Executor and low and behold, I was the beneficiary and they talked to me... Now, I told them my name each and every call but if I said 'Executor' they would not do anything...


I would bet that many places will do the same if the account does not go to the estate...

 

[pacergal]

Thanks to everyone for the input. His sister was the POA, and her responsibilities ended upon his death. They live in TX. I was involved in his life, although it became more difficult as he deteriorated because my involvement was via Zoom or FaceTime. I didn’t question his sister about how she was managing his funds, except for one time when she sold the condo that BIL had jointly owned with my sister. I asked her what she was doing with the proceeds. She claimed she just put them in his account. I repeatedly suggested ideas to her for how to use some of the funds for his benefit - hire a companion to visit him more frequently in Memory Care since she wasn’t visiting too often, get him better hearing aids, etc. I know she never hired a companion and his hearing aids never seemed to improve in my conversations with him.

I think a good next step is to talk wit a TX probate attorney and get advice as to potential next steps, costs, and outcomes. The SIL and I always had a cordial relationship and we spoke a few times a year, but I don’t care whether we maintain a relationship. With the way she’s behaving, she seems to be an evil person and I wouldn’t want her in my life anyway.

She is not having any type of service for him. Both he and my sister wanted their ashes commingled and scattered, but with this latest development, that probably won’t happen. I had suggested I would fly to TX and bring my sister’s ashes so we could honor that wish, but that seems unlikely at this point.

I think this is a good plan.
I am sorry for the loss of your sister and her husband.
Best wishes to you.

 

[LateToFIRE]

After tax accounts will show dividends and interest. Withdrawals from tIRA and 401k will show as income. The investment house and bank will get identified for more research into balances. It's not perfect, but will probably show how prepared the POA person was. If they've already run off with the money, and I didn't really need the money, I'd just say "life is too short", and move on. My personal approach would be that I don't want to fight an entrenched battle, especially if there's little low hanging fruit.

Thanks - makes sense!

 

[Willers]

I read one post where they stated that going to financial institutions is an option... I disagree...


When my mom passed I knew she had a benefit at her teachers retirement account... so I called as Executor and told them who I was and was looking to find out who was listed as beneficiary... they would not tell me... I tried a number of ways and nothing...


One time I called and forgot to tell them I was the Executor and low and behold, I was the beneficiary and they talked to me... Now, I told them my name each and every call but if I said 'Executor' they would not do anything...


I would bet that many places will do the same if the account does not go to the estate...

This was exactly my experience with the banks to whom I've spoken. Once I was identified as a beneficiary they gave me all kinds of information they wouldn't provide when I called the first time as an executor.

 

[RetMD21]

Scuba, please update us with the outcome

 

[Route246]

Scuba, please update us with the outcome

I went back and read the entire thread. It is a lot to digest.

One item that I've seen in many wills is that any contesting of the will results in the contesting party getting $1.00 (or $0.00 or some small amount). This usually stops anyone contesting.

Money can bring out the real personality of people.

 

[Texas Proud]

I went back and read the entire thread. It is a lot to digest.

One item that I've seen in many wills is that any contesting of the will results in the contesting party getting $1.00 (or $0.00 or some small amount). This usually stops anyone contesting.

Money can bring out the real personality of people.

But what about the person who takes the money and does not want to give it back? Not sure if this has been done but it seems like it is... they did not contest it but just ignored it and hopes to get away with it...

 

[LateToFIRE]

But what about the person who takes the money and does not want to give it back? Not sure if this has been done but it seems like it is... they did not contest it but just ignored it and hopes to get away with it...

Yup, with modest/mid-sized estates where the amounts are not big enough for someone to hire a lawyer and contest, this is what often happens. Someone (caregiver and/or member of family) simply keeps/appropriates assets for themselves. Burden of proof on the estate/executor.

ex. Discovered one sibling had had themselves to added DM's bank account - nothing I could do - period. Another sibling had use of DM's credit card - nothing I could do but cancel it. One of them had the car - what am I gonna send the cops after them. No, sometimes you just have to move on.

 

[MarieIG]

If it were my sister, who pre-deceased her husband, and then one of his sisters took on his care, I'd be willing to forgo my own financial benefit - assuming she really was involved and took good regular care.

But the charity angle - if my sister and her husband had wanted a substantial sum to go to charity, yeah...that I'd fight for. That's honoring my sister's wishes (though, in reality, the smarter thing to do would have been for a significant donation to be arranged at the time of her death, vs. waiting for him to pass as well - a lot can and does happen after one spouse dies.

If this BIL had re-written the will in the past few years, all of this would be moot. And for all we know he just wasn't in the mind or strength to do so, and perhaps made some comments to his sister that implied she should get more, or not. Lots of unknowns.

But I'd get a lawyer to handle it and step back.

With a couple, frequently the first to pass wants to look after the survivor's comfort first, as one may not know the amount necessary or the needs of the survivor, and leave the remainder to charity. It may depend upon the amount of the available estate.

 

[Scuba]

I spoke with a TX probate attorney, who agreed we should probate the will, which of course SIL hadn’t planned on. The next step is to file with the court and have a hearing to appoint me as executor, which should be relatively straightforward. The law firm will assist in obtaining financial records after I’m appointed executor and once we see what there is and how it was titled, we will go from there.

The moral of this story is to be really careful who your POA is. I am my MIL’s POA. DH and I are not in her will at all and I’m the one managing her daily care as well as finances. I wouldn’t dream of taking her money to compensate me for my efforts. It’s a labor of love, and her beneficiaries will get her money that remains when she dies.

DH and I have agreed that we are willing to spend some of our own money to make sure we at least try to carry out BIL’s wishes. However we are not going to devote our lives to this. We will put forward a reasonable effort and see where it goes.

If SIL gets away with stealing his estate as her own, she will have to live with herself. Ironically she is a very religious person so it’s strange to me how she reconciles what the attorney refers to as theft with her religious values. At this point, I have no desire to maintain any relationship with her regardless of how the estate situation is ultimately resolved.

 

[pb4uski]

Does SIL have a copy of the will so she understands her brother's wishes?

 

[Scuba]

Does SIL have a copy of the will so she understands her brother's wishes?

Yes, she absolutely does. That’s why she had him do a different one. She didn’t think his other beneficiaries needed to be in it.

 

[obsessed]

Yes, she absolutely does. That’s why she had him do a different one. She didn’t think his other beneficiaries needed to be in it.

Wait! She had your BIL draw up a subsequent will or tried? After he was in memory care? This adds a wrinkle to the story.

 

[Scuba]

Wait! She had your BIL draw up a subsequent will or tried? After he was in memory care? This adds a wrinkle to the story.

Yes. When I contacted her to discuss proceeding with probating his will, she informed me of this as described in the original post. She reluctantly admitted it after I refused her offer to help me out by taking over as the person to manage his estate. She said she had done it a year ago, after he had been living in Memory Care for 4 years. Obviously she was expecting me to just walk away and leave her to it.