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  1. #1
    Wetdrench Guest


    Hi my grandma passed away recently and left a sizable inheritance. Prior to my grandma's death, however, my mother shifted all of my grandma's monies into her account. My mom also changed my grandma's will.
    My grandmother was present for the authorization of these activities, but i know now that my mom took advantage of her since she couldn't read. After the changing of the will took place, my grandmother had stated to me how her will was to be delegated, repeating this information numerous times prior to her passing.
    My grandma passed away last April, however no will has been read or probated. Since there aren't any monies in my grandmother's account, can her will be null and void? What can be done about this situation? Can the will be probated? I would appreciate any advice, i am just at a loss for words...

  2. #2
    depeche Guest


    Wow! There are a whole lot of issues here. You're mom is not the only one has thought that transferring large sums of assets before death must be a great way to avoid estate taxes. But, you know it can't be that easy...or everyone would do it. That is why we have a "Gift Tax" in addition to estate tax. Any amount over $10,000 gifted to any one person in any one year counts towards a person's (your grandma) lifetime exemption equivalent. Last year, it was $650,000 that one could pass like this combined at life and at death. For example, if your mom transferred $1 million to your mom shortly before your grandma's death, your grandma (or her executor/trustee/heir) must file a gift tax return (Form 709) on her behalf, reporting $990,000 of gifts. Since this is greater than $650,000, there would be gift tax liability beginning at 37%. Of course, there are also some penalties and interest for late filings. And, the real downside (besides that fact that it was virtually useless) is that if your grandma had appreciated property (e.g. Microsoft stock), the beneficiary will not get the step-up in basis they would have if it had passed by inheritance.
    The second issue regarding the will & probate also seems messy. First of all, if your grandma had no "probatable" assets (e.g. nothing titled in her sole name), this does not make the will "null and void" it just means that it would have no practical effect because no assets would actually pass according to its terms. Generally, a will only controls assets in the decedent's sole name. Also understand that there is a difference between filing the will & probating it. At least in Illinois, I know that all known wills are required to filed w/i 30 of knowledge of its existence. However, a probate estate need not be opened, unless necessary to pass assets (In IL, over $50,000). Regarding changes to the will & its terms, this concerns the potential of a will contest. There are several bases, but it appears that "undue influence" may be at issue here.
    Again, there are a lot of issues here and I highly recommend that you and/or your mom see an estates attorney ASAP. What state did your grandma reside?

  3. #3
    Wetdrench Guest


    Hi Depeche, thank you very much for your prompt reply, I really appreciate it (and need it)! Umm, my grandmother lived in New York the last two years of her life; prior to that she resided in Massachusetts. My mom said she changed my grandma's will in order to make it a New York will(it was previously a MA will). What my mom didn't say however is that she also changed the monetary amounts that were stated in the MA will to weigh heavily in her favor!
    My mom did pay some estate taxes, however i am not sure on the exact amount, i think it may be $35K.
    Also, i have already visited two estate lawyers, one mentioned "undue influence," the other insisted that there was nothing i could do since there was no monies left in my grandma's name.
    Any additional advice would be greatly appreciated, thank you! Help!

  4. #4
    ALawyer is offline Senior Member
    Join Date
    Dec 1999
    Several States


    Please recognize that you'd be suing your mother, and that's not the best of all possible ways to have a happy family, and the outcome is not clear as it is not unusual for parents to leave assets to children, not grandchildren.

    You probably should consult with and get the advice of a NY estate / probate lawyer

    This is intended as general information only and NOT LEGAL ADVICE. You are not my client, and I have no obligation of any kind to you. To retain a lawyer, go to [url="http://AttorneyPages.com"]http://AttorneyPages.com[/url]

  5. #5
    Wetdrench Guest


    Hi ALawyer, Umm, my mom, my grandma and I made a clear verbal agreement in how to divide my grandma's estate prior to her passing. Sure this verbal agreement isn't legally binding, but i didn't think i would have to necessitate something written from my own mother! My mom reneged on our agreement and i just can't sit here and do nothing about it.
    By the way, she isn't my mother anymore; she has become a totally (in)different person since she has had full control over my grandma's monies.
    I've already visited two NY estate lawyers; i intend to visit a third. Thanks to all who responded, i really appreciate it!

  6. #6
    depeche Guest


    If there was no money left in your grandma's sole name, then the attorney is right that attacking the will would be fruitless as nothing passes under the will -- hence, it was never probated -- nothing to challenge. It sounds, however, like a large sum of assets was transferred just before to death to your mom as a "gift." To get that money, you would need to attack that transfer under a coercion/undue influence or capacity argument. This would obviously be very fact-specific. But, if your mom essentially wrote the check and told you grandam to sign it, and your grandma couldn't read or didn't know what she was doing, then she didn't form the necessary INTENT to make a gift. This would probabaly be a suit in equity and you may want to ask for a contructive trust or equitable lien, depedning on the type of assets.

  7. #7
    Wetdrench Guest


    Thanks again for the valuable info, it is much appreciated.

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