Dear Moneyist,
My parents have always had a bad judgment when it came to my oldest brother. In addition to being the favorite, they paid nearly $1 million over several decades for schooling, trips, clothing, car, condo, wedding, etc. My other siblings and I received a tiny fraction of that. My brother is very wealthy now, and his lifestyle is quite different from ours.
My parents are trying to plan their complex estate, and I heard my brother was playing a major role. He took a few business classes so my parents think he’s an expert. In one instance, my parents ignored the advice of their estate attorney and did what my brother advised. I’ve also learned that my brother meets with my parent’s estate attorney without them.
All of the potential scenarios for my parents’ estate seem to benefit my brother in some way. One option was to leave everything to my brother and have him divide everything up because my father was convinced it would “save time and taxes.” My brother would cut us all a check from his personal bank account. Another option was to have my brother’s wife be a beneficiary, but my other siblings’ spouses weren’t included.
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What really enraged me was when I found out my brother is my parent’s estate adviser, executor, beneficiary, and legal and medical power of attorney. My father swore this would make things more convenient and cheaper, and centralizing power is what experts advise. Can the same person hold all these roles?
My parents and brother swear that my parents support these ideas, and my brother isn’t trying to manipulate anyone. Everything my brother does is because my parents asked him. Can my parents put something in their wills that says that the wills can’t be contested and, if they are, there will be consequences? Can I ask a probate judge to have an attorney be co-executor after my father and mother die?
All three of them regularly remind me that my brother doesn’t need my parents’ money. But I’d argue that rich people don’t stay rich by deciding to stop finding ways to get more money.
M.R.
Dear M.R.,
Yes, your brother can in theory take on all those roles, but it’s also possible to challenge the executorship of a will by filing an objection with the probate court. The deceased’s relatives can always object to those appointed to oversee the estate. Ultimately, an executor trumps the power of attorney because the latter’s role exists when the principals (your parents in this case) are still alive. “Typically, someone who is inheriting assets from the will stands more of a chance in challenging the executor,” according to Kamper Estrada law firm in Phoenix, Ariz. The most common reason for challenging a will’s executorship is to prevent self-dealing.
But the best time to take action is now, especially if there’s already a significant amount of self-dealing taking place when your parents are alive. It will be far more difficult to challenge your parents’ will and prove that your mother and father actually intended to leave the rest of their children money even though they — inexplicably — decided to leave it all to their (favorite) son. You need a family meeting and an open conversation that includes the estate lawyer. How does he or she think it’s a good idea to leave it to your brother to split their estate? It sounds like he has a lot of influence, even undue influence, over them. The fact that your brother meets alone with your parents’ estate attorney looks like a red flag to me.
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“The degree to which your brother is ‘an active participant’ in your parent’s estate plan could be an issue with the court,” says Blake Harris, principal lawyer at Mile High Estate Planning in Denver, Colo. “ If your brother is merely helping your parents carry out their wishes, your parents’ estate plan should be enforced. If your brother is exercising ‘undue influence’ over your parents’ estate planning decisions, then their estate plan should be disregarded. It is usually difficult to prove that an individual was under ‘undue influence’ after they have passed away.”
If you have correspondence stating that your parents wanted your brother to cut a check, that would clearly help; it’s easier to persuade a judge that other children were supposed to be included when they’re not explicitly excluded. Harris says your parents can certainly put a “no contest” clause in their will. “However these ‘no contest’ clauses are often not enforced,” he says. “Some states disregarded them entirely and others will only enforce them in limited circumstances. Regardless, if you have been entirely cut out of a will, then there is no risk to you in contesting the will and trying to have the ‘no contest’ clause as well as the entire will disregarded.”
Your brother may be betting on your silence or inaction. Don’t prove him right on either count.
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