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executor decision to alter terms of will

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Roger G.

Junior Member
What is the name of your state (only U.S. law)? IL

Just curious about something that happened long ago and is not an issue anymore except for the lingering resentment. A sibling had power of attorney and was executor of our mom's estate. When she died, he decided that some money she had gifted to me shortly before passing should be given back to the estate. I said I don't think so, so he then deducted that amount from my share when distributing the estate to the heirs. The will said the estate was to be distributed equally among the heirs. Was a law broken, or is it more nuanced than yes/no? He truly believed he had the legal authority to do that, but I disagree. Anyway it was resolved without any legal actions but I'm curious what the law says.
 


tranquility

Senior Member
What is the name of your state (only U.S. law)? IL

Just curious about something that happened long ago and is not an issue anymore except for the lingering resentment. A sibling had power of attorney and was executor of our mom's estate. When she died, he decided that some money she had gifted to me shortly before passing should be given back to the estate. I said I don't think so, so he then deducted that amount from my share when distributing the estate to the heirs. The will said the estate was to be distributed equally among the heirs. Was a law broken, or is it more nuanced than yes/no? He truly believed he had the legal authority to do that, but I disagree. Anyway it was resolved without any legal actions but I'm curious what the law says.
There is a common law theory of Advancement, where an intestate person who gave a gift to an heir has a presumption of being an advance on an eventual inheritance. IL codifies it at:
(755 ILCS 5/2-5) (from Ch. 110 1/2, par. 2-5) Sec. 2-5. Advancements.)

However, your mother had a will and the statute also requires a writing so it would not apply. For federal taxation purposes, there is a concept of Gifts in Contemplation of Death, where gifts given within three years of death may be considered part of the taxable estate. There is no provision for a clawback of the gift I am aware of.

Perhaps there was a claim it was a loan?
 

Roger G.

Junior Member
There is a common law theory of Advancement, where an intestate person who gave a gift to an heir has a presumption of being an advance on an eventual inheritance. IL codifies it at:
(755 ILCS 5/2-5) (from Ch. 110 1/2, par. 2-5) Sec. 2-5. Advancements.)

However, your mother had a will and the statute also requires a writing so it would not apply. For federal taxation purposes, there is a concept of Gifts in Contemplation of Death, where gifts given within three years of death may be considered part of the taxable estate. There is no provision for a clawback of the gift I am aware of.

Perhaps there was a claim it was a loan?
No, there was no claim it was a loan. He made worse claims than that, and claimed his power of attorney allowed him to demand that money back. I told him POA ends at death.
 

tranquility

Senior Member
No, there was no claim it was a loan. He made worse claims than that, and claimed his power of attorney allowed him to demand that money back. I told him POA ends at death.
Yet, a judge decided against you.

As to your question, I think I have answered it. To give more requires more facts. For things that are well past the statute of limitations, I give the serenity quote:
God grant me the serenity to accept the things I cannot change, the courage to change the things I can, and the wisdom to know the difference.
 

Roger G.

Junior Member
Why on earth would you say a judge decided against me? No judge was ever involved, no legal judgment was ever made, and I got my full share of the inheritance as written in the will. I was just curious about the legalities.
 

LdiJ

Senior Member
Yet, a judge decided against you.

As to your question, I think I have answered it. To give more requires more facts. For things that are well past the statute of limitations, I give the serenity quote:
Where in this thread is there any indication that a judge decided anything? The OP stated that it was resolved without any legal actions.

However, I agree that the serenity quote probably applies here.
 

Zigner

Senior Member, Non-Attorney
Why on earth would you say a judge decided against me? No judge was ever involved, no legal judgment was ever made, and I got my full share of the inheritance as written in the will. I was just curious about the legalities.
Why on Earth are you here then? You're asking about the solution to a problem that simply does not exist...
 

tranquility

Senior Member
Why on earth would you say a judge decided against me? No judge was ever involved, no legal judgment was ever made, and I got my full share of the inheritance as written in the will. I was just curious about the legalities.
There wasn't probate? Or at least some form of small claims administration? If not, how long ago did this happen?
 

Roger G.

Junior Member
There wasn't probate? Or at least some form of small claims administration? If not, how long ago did this happen?
It was just a few years ago. The issue of the money never came before the court because I wrote a letter to my mom's attorney and suddenly my sibling reversed himself and gave me my equal share. I was just curious whether he likely did that because the attorney told him he had no legal grounds to do otherwise, or because the attorney told him he should just do it to keep the family peace.

I've not seen anything to suggest he had the legal authority to unilaterally short-change me.
 

tranquility

Senior Member
5 years. Why?
A little more? A little less?

The statute of limitations for a fiduciary breach in IL is 5 years.

http://www.kelleydrye.com/publications/articles/1507/_res/id=Files/index=0/1507.pdf
BREACH OF FIDUCIARY DUTY
„ Limitations period. The statute of limitations is five years (Clark
v. Robert W. Baird Co., 142 F. Supp. 2d 1065, 1074–75 (N.D.
Ill. 2001) (citing 735 Ill. Comp. Stat. 5/13-205 (2010)).
„ Accrual date. The statute of limitations period accrues when
the plaintiff party suffers an injury caused by the breach (see
Clark v. Robert W. Baird Co., 142 F. Supp. 2d 1065, 1074–75
(N.D. Ill. 2001)).
When a person takes control of property for another (What an executor does.) they are said to be a fiduciary. A fiduciary has the highest level of duty to those he represents. I am uncertain as to the actual facts in your situation. But, if I take you precisely at what you say and that you know the facts yourself, there is a potential breach here.

I don't know how things can be distributed according to will without some court oversight. I don't know if you signed or agreed to some settlement in exchange for something. I don't know a lot. But, you are in the end zone of a potential lawsuit for the ability to file. I might see an attorney immediately and run the facts by him. Immediately.
 

Roger G.

Junior Member
There is nothing to file. I got my inheritance. Everyone else got theirs. It's years in the past. Its over except for the effect it had on family relations. No legal actions are or ever were forthcoming.

The only reason I asked is because I was visiting this site for another question and I saw this subforum. I tried to keep other siblings out of the fray to protect them from it, and he dragged them in to try and bolster his position. I claimed what he did was illegal, and another sibling came to his defense and said it was not. I was only looking for clarity on that disagreement because it created much friction between all of us and he never said why he changed his mind. I only know my letter to the attorney helped him decide. :)
 

Roger G.

Junior Member
When a person takes control of property for another (What an executor does.) they are said to be a fiduciary. A fiduciary has the highest level of duty to those he represents. I am uncertain as to the actual facts in your situation. But, if I take you precisely at what you say and that you know the facts yourself, there is a potential breach here.
This is what I was looking for. Thank you. I've told you all the facts. Sibling executor thought he could unilaterally "interpret" the will to his liking and the attorney undoubtedly set him straight so he fixed it before the estate closed.
 

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