Inheritance

[elmxl88]

My brother and I are 50/50 in my mom's estate / beneficiaries.
He is married. My mom named him as a beneficiary and not his wife.
If he doesn't co-mingle his inheritance and he should pass away, does she automatically get the money that was left to him.

 

[LdiJ]

My brother and I are 50/50 in my mom's estate / beneficiaries.
He is married. My mom named him as a beneficiary and not his wife.
If he doesn't co-mingle his inheritance and he should pass away, does she automatically get the money that was left to him.

Maybe...at least partially. In most states a spouse is entitled to a certain percentage of his/her spouse's assets if they pass away without a will, and most often they are entitled to that same percentage even if a will would leave it to someone else. Since you didn't tell us what state your brother resides in it is not possible to be more specific. Generally, if there is a wife and/or children a sibling would not normally inherit.

 

[elmxl88]

He lives in Pennsylvania.
Long story, i'll try to be short. My parents (when my dad was alive) made a will where my brother gets a stipend of 5k a month for 5 years and than the lump sum. He's on permanent disability so we are trying to protect his inheritance in the event that they divorce. She has told me that she's not quite there with leaving him.. (perhaps she's waiting for my mom to pass so she can collect 50% of his inheritance which is fairly sizable). My brother made my mother change the distribution where he gets it all upfront. My mom is 88 y/o now and gets very nervous so she obviously caved. Is that duress???? The wife came after me and said how dare i have set up my mom and dad's wishes of him getting a stipend so that if my brother passes away (he has heart issues) I would get the money being held in trust for him rather than her getting what's left if he were to get it upfront. She just showed her cards by saying that.

 

[LdiJ]

He lives in Pennsylvania.
Long story, i'll try to be short. My parents (when my dad was alive) made a will where my brother gets a stipend of 5k a month for 5 years and than the lump sum. He's on permanent disability so we are trying to protect his inheritance in the event that they divorce. She has told me that she's not quite there with leaving him.. (perhaps she's waiting for my mom to pass so she can collect 50% of his inheritance which is fairly sizable). My brother made my mother change the distribution where he gets it all upfront. My mom is 88 y/o now and gets very nervous so she obviously caved. Is that duress???? The wife came after me and said how dare i have set up my mom and dad's wishes of him getting a stipend so that if my brother passes away (he has heart issues) I would get the money being held in trust for him rather than her getting what's left if he were to get it upfront. She just showed her cards by saying that.

A trust would be the best way to protect your brother's assets from his wife. However, an inheritance IS separate property and as long as it is not comingled it would not be divisible in a divorce. If your brother is smart enough to keep the money in a separate account and to not spend it on marital assets he should be able to protect it himself in the case of a divorce.

However, his wife would still be entitled to a share of it if the are married when he passes away.

 

[elmxl88]

A trust would be the best way to protect your brother's assets from his wife. However, an inheritance IS separate property and as long as it is not comingled it would not be divisible in a divorce. If your brother is smart enough to keep the money in a separate account and to not spend it on marital assets he should be able to protect it himself in the case of a divorce.

However, his wife would still be entitled to a share of it if the are married when he passes away.

The will as previously written states(ed) that his portion goes into a trust which will feed a bank account on a monthly basis for him to draw on. That's all set up. He made my mom change it so he gets it all upfront. If my mom passes today, that about 750k each for my brother and I. Half of 750K is 375K for the wife. The issue is that my brother has been trained by the wife to put everything he gets into joint ownership, she wears the pants and controls the purse. I have it in writing that she's pissed that if I maintain control of the trust and they don't get it upfront, should he pass, I get the remainder of what's in the trust and she won't have that. That in itself proves my suspicions.

 

[LdiJ]

The will as previously written states(ed) that his portion goes into a trust which will feed a bank account on a monthly basis for him to draw on. That's all set up. He made my mom change it so he gets it all upfront. If my mom passes today, that about 750k each for my brother and I. Half of 750K is 375K for the wife. The issue is that my brother has been trained by the wife to put everything he gets into joint ownership, she wears the pants and controls the purse. I have it in writing that she's pissed that if I maintain control of the trust and they don't get it upfront, should he pass, I get the remainder of what's in the trust and she won't have that. That in itself proves my suspicions.

You can't force your mother to change the will back to where it was and you can't force your brother to protect himself against his wife in the case of a divorce. Therefore, there is little that you can do at this point.

 

[Taxing Matters]

He lives in Pennsylvania.
My brother made my mother change the distribution where he gets it all upfront. My mom is 88 y/o now and gets very nervous so she obviously caved. Is that duress????

There isn't enough information to determine that. Whether there was duress depends on the law on the applicable state law. Was your mother living in PA when the will was changed? Is she living there now and expected to die in PA? If the answer to both is yes, then Pennsylvania law would apply. PA courts have long used the following definition of duress: "Duress is defined as that degree of restraint or danger, either actually inflicted or impending, which is sufficient in severity or apprehension to overcome the mind of an individual of ordinary firmness." W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 627 (Pa. Commw. Ct. 2017). So if he got her to change the will/trust using just the ordinary kind of pressure a child would apply to a parent it would not be duress. However, if he threatened to kill her or to hurt her to get her to change the will, that's duress.

What your brother's wife might get any part of the inheritance he receives from your mother depends on several things. First is whether your brother and his wife end their marriage by divorce or by death of one of them. If marriage ends upon death, it matters who dies first. If he dies first, in general she'll get some portion of your brother's estate, either by him giving it to her in his will, through the wife's elective share of the estate if he has a will that leaves her out, or by the laws of intestate succession if there is no valid will for your brother. Also, of course, it depends on the total mix of assets he has. If his estate is mostly made up of his assets it would be possible to provide the wife with her share of the estate with just his assets and excluding any assets he inherited.

In the end she's likely to get at least some part of his estate if he dies first will still married to his wife. It is not unsual for a spouse to give a good chunk or even all of his/her assets to the surviving spouse. Apart from the share she gets by statute, It really ought to be his choice what happens with HIS estate, including what he gets from your mother. If he wants his wife to get it all, then he's entitled to make that choice. You are getting half your Mom's estate and he's getting the other half. That strikes me as a fair arrangement. You aren't entitled to more than that and you certainly aren't in a position to dictate what your mother or brother does with with his inheritance.

The wife came after me and said how dare i have set up my mom and dad's wishes of him getting a stipend so that if my brother passes away (he has heart issues) I would get the money being held in trust for him rather than her getting what's left if he were to get it upfront. She just showed her cards by saying that

I'm getting the same vibe from you as you are getting from her, to be perfectly frank. You are angling to get more of your mother's estate instead of being satisfied with what she elected to give you. It's her assets to do with as she wants. She could revise the will to leave you completely out of getting anything if you make too much of a big deal about this. Given that, you should be appreciative of the half you are getting and anything you get from your brother should be considered an extra bonus. Does your brother have kids? If so you'd be unlikely to get any of his estate other than what he expressly gives to you. I get that you want to get an additional chunk of his estate that you might get under the old trust arrangement, but wanting more doesn't give you standing to challenge your mother's decisions on what to do with HER money.

 

[zddoodah]

My brother and I are 50/50 in my mom's estate / beneficiaries.
He is married. My mom named him as a beneficiary and not his wife.
If he doesn't co-mingle his inheritance and he should pass away, does she automatically get the money that was left to him.

When (not if) your brother dies, his estate will be administered in accordance with (1) the terms of his will or (2) Pennsylvania's intestate law (i.e., the law that dictates who gets what when someone dies without a will. If your brother has a will, then we have no way of knowing what will become of the money. If your brother dies without a will inherit the entire estate (including any money remaining from his inheritance from your mother), unless your brother is also survived by children and other descendants. If there are children and other descendants, who are also children/descendants of the surviving spouse, then the surviving spouse receives the first $30,000 of the estate plus 1/2 of the rest. If any of the children/descendants are not also the surviving spouse's children/descendants, then the surviving spouse simply receives 1/2 of the estate, and the children/descendants split the other half.

My parents (when my dad was alive) made a will where my brother gets a stipend of 5k a month for 5 years and than the lump sum.

That sounds more like a trust than a will (possibly a trust created by the will - i.e., a testamentary trust).

we are trying to protect his inheritance in the event that they divorce. She has told me that she's not quite there with leaving him.. (perhaps she's waiting for my mom to pass so she can collect 50% of his inheritance which is fairly sizable).

What his spouse might receive in a divorce is very different than what she might receive when he dies.

My brother made my mother change the distribution where he gets it all upfront. My mom is 88 y/o now and gets very nervous so she obviously caved. Is that duress?

We weren't there (and I bet you weren't either), but "made [her] change the distribution" certainly raises the possibility of coercion or undue influence.

The will as previously written states(ed) that his portion goes into a trust....

What sounded like a fairly simple situation in your original post has now become incredibly complex. While your mother is still alive is the best time for her to fix anything about which she is concerned, and she should consult with an estate planning attorney. Legally speaking, this isn't any of your concern, so all you can really do is suggest that the concerned individuals consult legal counsel.

 

[elmxl88]

You can't force your mother to change the will back to where it was and you can't force your brother to protect himself against his wife in the case of a divorce. Therefore, there is little that you can do at this point.

My mom is changing things back to the way it was and we have an appointment next week.

There isn't enough information to determine that. Whether there was duress depends on the law on the applicable state law. Was your mother living in PA when the will was changed? Is she living there now and expected to die in PA? If the answer to both is yes, then Pennsylvania law would apply. PA courts have long used the following definition of duress: "Duress is defined as that degree of restraint or danger, either actually inflicted or impending, which is sufficient in severity or apprehension to overcome the mind of an individual of ordinary firmness." W. Chester Area Sch. Dist. v. A.M., 164 A.3d 620, 627 (Pa. Commw. Ct. 2017). So if he got her to change the will/trust using just the ordinary kind of pressure a child would apply to a parent it would not be duress. However, if he threatened to kill her or to hurt her to get her to change the will, that's duress.

My mom has always lived in New York. Not sure of the laws there. Another scary point is that my brother told me that he too was given power of attorney last week at the lawyers office and my mom has no recollection of her signing that paper.

What your brother's wife might get any part of the inheritance he receives from your mother depends on several things. First is whether your brother and his wife end their marriage by divorce or by death of one of them. If marriage ends upon death, it matters who dies first. If he dies first, in general she'll get some portion of your brother's estate, either by him giving it to her in his will, through the wife's elective share of the estate if he has a will that leaves her out, or by the laws of intestate succession if there is no valid will for your brother. Also, of course, it depends on the total mix of assets he has. If his estate is mostly made up of his assets it would be possible to provide the wife with her share of the estate with just his assets and excluding any assets he inherited.

In the end she's likely to get at least some part of his estate if he dies first will still married to his wife. It is not unsual for a spouse to give a good chunk or even all of his/her assets to the surviving spouse. Apart from the share she gets by statute, It really ought to be his choice what happens with HIS estate, including what he gets from your mother. If he wants his wife to get it all, then he's entitled to make that choice. You are getting half your Mom's estate and he's getting the other half. That strikes me as a fair arrangement. You aren't entitled to more than that and you certainly aren't in a position to dictate what your mother or brother does with with his inheritance.

Yes, we are getting equal parts. My mother wants to make sure my brother will be ok, he hasn't worked in 10 years due to his injury. This money will help him greatly. What we are worried about is her taking 1/2 the money when he puts it into joint account. She can sell the house they live in and move. His name isn't on the deed.



I'm getting the same vibe from you as you are getting from her, to be perfectly frank. You are angling to get more of your mother's estate instead of being satisfied with what she elected to give you. It's her assets to do with as she wants. She could revise the will to leave you completely out of getting anything if you make too much of a big deal about this. Given that, you should be appreciative of the half you are getting and anything you get from your brother should be considered an extra bonus. Does your brother have kids? If so you'd be unlikely to get any of his estate other than what he expressly gives to you. I get that you want to get an additional chunk of his estate that you might get under the old trust arrangement, but wanting more doesn't give you standing to challenge your mother's decisions on what to do with HER money.

When (not if) your brother dies, his estate will be administered in accordance with (1) the terms of his will or (2) Pennsylvania's intestate law (i.e., the law that dictates who gets what when someone dies without a will. If your brother has a will, then we have no way of knowing what will become of the money. If your brother dies without a will inherit the entire estate (including any money remaining from his inheritance from your mother), unless your brother is also survived by children and other descendants. If there are children and other descendants, who are also children/descendants of the surviving spouse, then the surviving spouse receives the first $30,000 of the estate plus 1/2 of the rest. If any of the children/descendants are not also the surviving spouse's children/descendants, then the surviving spouse simply receives 1/2 of the estate, and the children/descendants split the other half.




That sounds more like a trust than a will (possibly a trust created by the will - i.e., a testamentary trust).




What his spouse might receive in a divorce is very different than what she might receive when he dies.




We weren't there (and I bet you weren't either), but "made [her] change the distribution" certainly raises the possibility of coercion or undue influence.




What sounded like a fairly simple situation in your original post has now become incredibly complex. While your mother is still alive is the best time for her to fix anything about which she is concerned, and she should consult with an estate planning attorney. Legally speaking, this isn't any of your concern, so all you can really do is suggest that the concerned individuals consult legal counsel.

My mom and I are going back to the attorney to bring it back to the original way. It was a will that dictated the distribution via stipen which was than later absorbed into an irrevocable house trust where I am named now on the deed as owner of her property. Within that house trust, it also states that I am to open an account which will feed by brothe the stipend monthly.

 

[Zigner]

I'm glad your mother is going to an attorney to discuss this. Hopefully, the attorney will speak with your mother alone for at least a portion of the time to better determine her true wishes and help her create a plan that will accomplish what she desires.

 

[elmxl88]

Since going

I'm glad your mother is going to an attorney to discuss this. Hopefully, the attorney will speak with your mother alone for at least a portion of the time to better determine her true wishes and help her create a plan that will accomplish what she desires.

Since this has all come to light and I found out what happened, I have gone back and forth with my brother and his wife. As I get information, i relay back to my mother. She is starting to see what really happened. My brother said he signed a paper giving his POA. My mother doesn't recall this or he's lying to me. The wife accused me of setting up a stipend so that if/when my brother passes and he hasn't collected all of his money, I will get the remainder and not her. Why is she so concerned, why would she even write that to me.., frankly it's not her business if this is the way the will was written when my dad was still alive.
Also, what's concerning is that on their wedding day, I overheard her say to her daughters "we finally nailed Joe". My now ex husband and aunt also heard it. I reminded her of that remark today and she outright denied it. I told her I would go back to my ex husband which I'm on good terms with to confirm what we all heard. #1, I haven't heard back from her... crickets LOL and #2 by ex texted me back confirming that and said "Ido remember her making that statement at the time since it was an odd thing to say." I shared all of this with my mom. I also tried to explain to my mother that my brother has to put all of his money in joint accounts and i know for a fact that in NY if inheritance hits a joint account, in 24 hours plus one minute, it become marital property.
When my brother was hospitalized in Dec with open heart surgery, she said a few times that she's not ready to divorce my brother hmmmmm.
I don't trust her for a hot minute.

 

[Eekamouse]

Nor she you, apparently.

 

[elmxl88]

Nor she you, apparently.
[/QUOTE

There is a note in the lawyer's office written by myself that my brother will received 50% of everything left by my mother. That note has been notarized and signed and 2 witnesses present. That will stand up in court no doubt. I have no intentions of withholding anything that my brother is entitled to.
I have also had some spare time today to do some digging up of documents. They were married in 2008 and moved into her home. In 2011 she had the deed changed. Not joint owners but from her previous married name to her new name (my brother's last name). That was pretty dirty of her to do especially since my brother pays for 1/2 over everything but has no claim on it.

 

[zddoodah]

Hopefully, the attorney will speak with your mother alone for at least a portion of the time to better determine her true wishes and help her create a plan that will accomplish what she desires.

Agree. This is quite important.

 

[elmxl88]

Agree. This is quite important.

Unfortunately my mother is afraid to do anything like this because of anxiety. She used to think there were cameras in the ceiling watching her and taking photos of her credit cards if she took them out. She knows I'm watching out for my brother and she wants me present at all times.