Guardian of mother trying to change estate agreement

What is the name of your state? New York
I am administrator of my father's estate (he had no will). His wife (my mother) is under treatment for a mental illness, but is now mentally competent. She wants to give my brother and myself more than the intestate share from our father's Estate (instead of the first 50,000 and half she only wants to take 50,000 and leave the rest to pay for my brother's college education and other expenses). My Aunt (mom's sister and guardian) has said "No". Can she do this? My father paid for me to go to college and he was going to foot the bill for my now 23 year old brother. Doesn't a spouse have the right to disclaim a part of an Estate to benefit her children. She already recieved $500,000 via non-probated assets (house, 401K, etc.) and a $40,000/year pension (from dad's retirement plan) so she is not in a bad financial position.

IF she is menatlly competent, she can disclaim if done in a proper manner -- get a lawyer to assist you to make sure she is going to do it right -- and if it ever comes up, although with her other assets and pension I doubt there will be, there may be medicaid issues down the road.

(1) Why does the Aunt have any say-so in this situation? Is it possible she is objecting because maybe her share of the estate might be larger if it doesn't go to your mother?

(2) Does this Aunt have any financial control over your mother as far as being her guardian--does she get to approve or reject your mother's request for money or does your mother handle that herself?

It's nice that your mother wants to give a larger share (for good reasons) to your brother and you, but it would be improper and the probate court judge might not approve it. It would be much better for your mother to just go ahead and accept whatever her share of this estate is going to be, and then when she gets the money she can do whatever she wants to with it, give you and your brother however much she wants to (that is, if her expenditures don't have to be approved by the aunt/guardian).

Your mother should stop telling your aunt about her intentions in this estate matter--since the aunt might do something to affect the outcome--your mother should just keep this entire matter confidential to herself and not discuss any estate business any more with this aunt, to avoid complications.

Do you all have a probate lawyer you can go to for advice about this matter?

DANDY DON

My Aunt is my mom's legal guardian but she is only guardian of the person, not conservator (guardian of the estate). There is no conservator. My Aunt would inherit nothing from my father's estate because she is my mother's sister, not my dads. I think she is just a control freak, I don't know. I have an attorney but he is in NY (my brother and I live in Texas). He almost never returns my calls. Don't know what to do. Also, my brother was left homeless by my father's death (hence I took him in). I feel like I should get some sort of "child support" even though he is 23. His health insurance alone is $309 a month and I am have no idea how I'm going to put him through college (I'm 25 myself and do not have enough saved). Sorry about my rambling. Just don't know what to do.

It might be easier (as said previously) for your mother to just gift your brother the money. All she has to do is write out a check or give cash of $11,000.00 (the maximum per year). Then January 1 of 2003, she can gift another $11,000.00. It is as simple as that, no forms, no questions by anyone.
Or if she wants to make sure that it goes for college expenses, she could write the check to the college for the tuition etc.
Communication about this is important with your mother. Don't develope hard feelings about this situation.
curb1

Thank you all for your advice. My mom cares a lot about us and hopefully my Aunt will not stand in the way of her doing the right thing.