It can take longer than it seems like it should to let go of those sorts of “not fair” feelings. there is something about cherished items that is rough. My sister has the family clock & all of us would want it, but she asked first, probably before i was born and everyone is totally fine with her having it, but boy oh boy, no one wants it to go to her extremely unstable kids who would not value it and not take care of it. There is no value to the clock other than sentiment.
I have noticed my parents having an odd habit of wanting to give things to the only son. Unbeknownst to anyone and undiscussed with them, Mom & Dad sent the Creche to my brother and his wife. Wife opened the old seriously used thing and trashed it, well, all of us kids had played with it and any of the sisters would have wanted it because of the memories, we all knew who broke which pieces. There are just weird emotions attached to things, emotions that are far more intense than outsiders would think that item deserved.
I had a friend, 6 siblings & some dissention so they had an auction, everyone was given cash from a bank account & they all bid on items, the proceeds of the auction were then divided 6 ways at the end. One sister, though, deliberately bid up the price on the item everyone knew my friend wanted, at least according to my friend. The auction sounded like a smart way to solve the issues.
Anyone who does not want to receive or partake in a bequest can disclaim, but that requires additional documents that meet legal requirements, etc. There are state and federal legal requirements (fed. requirements are really only a concern if the estate approaches federal taxable limits) for the validity of disclaimers.
Unfortunately, if your dad’s will states that a (either) house goes to all siblings, that house will have TO GO to all siblings upon probate of his will. Said house will be retitled according to his will (the will acting as conveyance), barring disclaimers by the siblings who your dad hope will be generous to S2. Then, you are stuck with that result. Someone should really know what the will says so that further complications after your dad’s passing can be minimized.
Perhaps it is best to assess monetarily what the “pot” is now, so that your father’s wishes can be addressed outright. But this is a very difficult and sensitive topic, isn’t it.
I’ve seen that situation so many times. A house has a sibling living in it. It’s a significant portion of the estate, so for all to get their equal shares, the house has to be sold, or the sibling has to get a mortgage on it to pay out everyone’s piece of the house. Sibling in house can’t or won’t get the loan, won’t move from house, putting other sibling in the position of having to take legal action, splitting the family, or forego getting anything from that house.
Variations on that theme, but similar scenarios happen a lot.
Yes, estate attorneys are familiar with these scenarios and variations on the theme. The person who owns the asset has to make some choices, which sadly can affect the dynamics of the survivors–sometimes in very bad ways–forever. This is one of the reasons we beg our folks to spend or give away all their assets so there is nothing to fight over. There are 7 of us kids and 6 of us are married. The one who is unmarried has no kids, one couple has one child, two of us have 2, two have 3 and one has 4 kids. What is “fair” in such a situation? Our folks gave all of us an UG and 6 of us also got grad/pro educations as well. Everyone APPEARS to be doing pretty well financially, but of course there are differences among us financially.
My H is the POA for two of his mom’s accounts (checking and one saving). He can sign her checks for her. This arrangement was done at the bank where the accounts are. I believe all her banking accounts have TOD arrangements. Will my H be able to use these two accounts to pay her bills after her passing BEFORE the accounts assets transferred and her will probated? We are in Texas.
Not legal advice, obviously, and it’s an easy thing to check with the bank or your estate lawyer to confirm, but IIRC POA generally terminates upon the death of the grantor of the POA. The executor is the individual who has authority to act on behalf of the estate. If there is no will, then it’s whoever state law appoints to act as administrator. But, you should confirm with your counsel.
First off, Attorneymom: Thank you for all your helpful information, my attorney would have charged plenty to answer all those questions! Secondly, just an opinion on the “resident sibling” problem. My husband’s parents lived far away and when they passed we never received anything from the estate, despite their claims while living that everything would be divided equally. My BIL and SIL handled all of their healthcare, assisted care and end of life care. I never said anything because family harmony comes before everything else. Now I am the primary caregiver for my mom, and even though she is in assisted living it is like a full time job. Her assisted living costs approach $8000/month and the bookkeeping of insurance claims, miscellaneous bills and disposition of her condo and contents has been daunting. My point is that having someone nearby to care for an elderly parent should be heavily factored in to the accounting when considering division of an estate. The dollar amount is one thing, but the cost to one’s psyche can be priceless.
I cared for my mother for the last 4 years. She became very fragile this year, and needed full care after a hospitalization in early Novermber. She lived with us and, yes, there was a true cost in having her. Increased cable options since watching TV was her main activity, increased heating bills, special foods for her,…the list goes on. Not to mention that she did not want anyone else care for her in her last months than me, and I went along with it. I did benefit from some of her income while she was alive, though it was meager, but the cost to psyche, my time was enormous. My brothers were spared most all of that. But other than personal effects, which my brothers have no interest in having, whatever financial assets she has, (not a huge amount but a tidy sum) will be split equally, despite the situation, and that I have a large family, and the others do not. I have no problem with it at all, as I figure I got some benefits while she was alive, more than the others did.
I agree wholeheartedly. Not everything that is valuable is measured in terms of dollars and the time and emotional costs of caring for aged parents go beyond dollars. However, it is incumbent on the aging parents to take those “differences” into account (if they choose to do so) and, as importantly if they do, to explain their reasons to their heirs. Otherwise not all their heirs may see things quite as equitably as you do.
Also, wills are often written years in advance of the final years for most people and circumstances do change drastically. They and TOD arrangements must be revisited every time circumstances change.
Re: Post #101 and disclaimers. My understanding is that if the will states that a portion of the estate goes to Child A and in the event Child A predeceases the grantor then to Grandchild A, a disclaimer would act in the same way as if Child A died. In other words, Child A may wish to disclaim her portion to go to one of her siblings, but the law would operate to give Child A’s portion to Grandchild A.
While you’re still relatively young and healthy, buy long-term care insurance. You may not qualify if you wait too long, and most people do end up needing some help paying for assisted living. We bought ours a couple of years ago, and tried to do the same for our parents, but mine were rejected (only my mother applied, because my dad was already terminally ill), and my ILs refused to submit to the tests and invasive questions.
Now, we’re trying, with the help of our excellent FP, to figure out how much money we should allow to support our parents when they need it, but my widowed mother is too proud to acknowledge she needs help, and my ILs just evade questions about everything, including money. And it’s pretty hard to plan for something when you don’t have all the facts you need to make a good decision.
You are correct in general about disclaimers. Disclaimer cannot direct who disclaimant’s portion goes to. The effect of the disclaimer must be understood in the context of the will’s provisions, intestacy succession, or if asset is held by a third party like a financial institution, the governing contract.
Generally, if the will in question just said “to the children” in equal portions, then one child disclaiming increases the other children’s shares. If there is a per stripes survival provision, then it’s possible that the children take. I say possible because state law governs the effect of disclaimers and they vary.
My H is the will executor and there is no counsel. The in-laws had their will done a long time ago and none of kids know any detail of the will. My H does not want to take his mom to see an estate attorney because he is so drained mentally from caring for her. Sadly none of his siblings want to have anything to do with her either. I wish my H were not the executor and I know it is going to take a long time to sort through her estate.
If your husband is the executor named in the will, he should get his hands on a copy of it so he knows precisely what it says. (I don’t recall if you said he has done so.) The “good news” is that the executor has a great deal of authority to act on behalf of the estate but that requires that the will be filed for probate and his status “certified” by the probate court through the issuance of letters testamentary. Third parties will rely on his letters testamentary as proof of his authority to act as executor which, of course, makes him a fiduciary with regard to his mother’s estate.
Sadly, those who may not want anything to do with an elderly parent while alive tend to become interested when there is an estate to divide. Once the will is probated, certified notice will be sent to all named beneficiaries with a copy of the will.
Your H can take steps now while his mother is alive, especially as he is her attorney-in-fact to clean up matters: making sure he knows what accounts and assets there are, consolidating accounts to reduce the number of accounts that need settling later, setting up TODs with her agreement for these accounts, making sure her designated beneficiaries for retirement accounts are properly documented. If he is the only child who has contact with her, she is within her rights to trust and favor him should she wish to do so. Unfortunately, the other children may disagree but, fact is, after she passes, things are pretty much set in stone barring charges of self-dealing and overreaching.
I realize these are difficult housekeeping steps to take when someone is already preoccupied with day-to-day care. The only suggestion I have in that regard is that you can help with that, in an administrative assistant’s capacity.
Your H can see if a wills & trust lawyer can come meet her. That can get expensive, but depending on your circumstances, it may be a good investment.
We had an estate planning attorney come to my terminally ill relative’s home on a Friday evening and return after working all weekend on Monday for her to execute documents. The relative died in Tuesday, content that she had all her affairs in order as best she could. It gave her peace of mind and was money well spent.
Over 20 years ago, my in-laws (then in their late 60s/early 70s) asked each of the 5 kids to put together a top 10 list of the items they wanted from the house - all furniture and decorative items were up for grabs. Several of the kids put only the big ticket things like furniture, china, silver tea service, etc. on their list. H is the youngest and put in for small things like the antique dinner bell and some smaller china pieces that his grandmother had hand painted. Over the years, these items were given as birthday or Christmas gifts. H got the dinner bell early on, as it was the top of his list. There were (are!) some hurt feelings, as several said “I wanted that”, to which my MIL responded “it was on his list, not yours”. Morale of the story - you can’t please everyone, no matter how hard you try to be fair with distribution of property.
I have a bit of the opposite problem - I’m an only child of an only child and have way too much family heirlooms.
That’s a great idea. It takes into account the children’s preferences, yet the ultimate decision was made by the gift giver.
Our D is an only child, and we will keep that in mind when we sort our things out to lighten her burden. That’s as much a gift as anything we can give her.
Yes, it is a blessing to tidy up and not leave a mess for our loved ones to sort through. We are slowly trying to dirt through and discard as well. We have two kids but tons of “stuff.”
My mom was 19 when her mom died (dad had died when she was 12), so several aunts helped her pack up the stuff, but she never used it. A few of the things we came across in the basement, she just shook her head and had no idea where they came from. There was a trunk of vintage linens that she had never unpacked. I’m just happy she’s still in good health and was able to make the decisions on what to keep and what had no sentimental value to her.
and everyone is totally fine with her having it, but boy oh boy, no one wants it to go to her extremely unstable kids who would not value it and not take care of it. There is no value to the clock other than sentiment.