Exclusion From Family Estate

[13Hour]

It finally hit me tonight.

I was going through papers that my late father had left behind, explaining how he wanted all family possessions split equally between myself and my older brother. Both my mother and father signed this document. Two signatures. In this document they are asking my brother and myself to pick family items to keep--stating that everything else would be split equally between us, including all monies and real estate.

My father died over a decade ago. My mother developed Alzheimer's Disease.

My mother, brother and his family live back East. I live in the West. As my beloved brother and I were discussing how to further care for my mom and her property--I raised an objection over my father's house being rented or sold.

It was then a curious thing happened.

I was informed rather coldly that I "had no say" in this matter--as my brother had complete Power Of Attorney over my mother's Estate and finances. He further stated that in was in possession of a NEW WILL, different than the one that both my parents had designed and registered. Even more interesting, this new Will does NOT follow the wishes of my father or mother that "all things" be divided equally between us--their only two children.

This NEW WILL divides the proceeds from the family Estate between what my brother euphemistically called "...all of mother's children"--which just happens to include his two children as well.

To shield his duplicity, he quickly added that this new WILL includes his wife--and my wife. My wife and I have NO CHILDREN, a choice that we made, ergo any property or proceeds will be split with a Lion's Share going to HIS FAMILY.

In an attempt to further threaten, and bully me--he added that he had been my savior--that my mother was going to cut me from her WILL completely for failing to visit her often. I was stunned. I am still stunned. I will always be stunned. My mother would never do such a thing and came to visit me often with her boyfriend, who is an officer and a gentleman. But even if I had never seen her again, she would never--being in her right mind--do such a thing. We are not, or at least we were not, such a family?

For background, we were raised in a rather privileged environment. I became a writer, while my brother became "somewhat" of a businessman. He lives a lavish lifestyle and is many millions in debt, while I am a quiet minimalist who pays as he goes.

I have always been faithful to my brother--as I thought he was to me--but clearly that is not the case. So there are two issues that I must deal with: the first is heartbreak and a sense of devastating loss. The other is legal.

I have always tried to support him and his family in any manner I could, while clearly he regards me as somewhat dimwitted--largely because I am reserved. He is gregarious, often charming, so much that he has endeared himself to investors and bankers who seem to have little hope in recovering seven figure loans--and they still loan him more money. I recall something one of his managers once said: "...he could tell people to go to hell, and they'd ask for directions."

To be fair to him, and his wife, during my mother's long decline--they were the ones who cared for her and made all the arrangements for her comfort. Fortunately money was never an issue. My father was a wonderful provider--and what hurts most is that he was honest and caring and always fair--so I do not know where such behavior comes from.

I have NOT told my brother how I feel. I'm a good listener.

I also know how dearly my mother always loved my brother's children, and so part of me doesn't even mind this flimflam. It's not what he did really--it's the way that he did it--and often the thought will surface and wake me at night.

I don't know what I should do.

As an extra note, I am surrounded by legal experts in entertainment and contract law--but I have been too embarrassed to even ask a simple question. How does one explain?

My brother seems to have covered all the bases, gaining a Power Of Attorney with his wife in the second position of authority, should anything happen to him--and they did this by "working" an old woman with advancing brain disease. Cunning as they are, they were able to execute a WILL that unfairly excludes me for not having children. My guess, if he didn't feel I was capable of fighting, then he would have excluded me completely--even though he claims he is my defender.

At last report he said he was considering putting my father's house on the market for sale--then somebody called to say there is a sign on the property selling the land--but I was not notified by anyone.

As for his legal foundation--I have plenty of written materials to counter his claims [including my father's WILL], along with witnesses who would testify in any proceeding. But they old, and this is sad. What is the correct course of action?

As an aside, one emotional reaction my wife and I both had--was to consider reconstitution of our own WILL to exclude my brother's children, and we are worth many times more than this estate which stands at 1.5 million in land value alone. The thought of blaming the children for the sins of their parents is unfortunate--they are teenagers who think their dad is a honest gentleman, who is highly successful--rather than buried under a mountain of debt.

He's fooled us all.

Any advise you might be able to give would be most appreciated.

Thanks!

[Mr. Knowitall]

You have to recall the rages that can strike people with Alzheimer's - it is quite possible that your mother did make angry comments about you at some point in time, not out of true anger but as a symptom of her illness. It's also possible that your brother is making things up in order to try to keep you at a disadvantage. My grandmother, who had a form of dementia, once complained quite bitterly that my father never visited her - after he had visited her five days in a row.

If you believe your brother is mishandling your mother's estate, you should consider petitioning a court to replace him as guardian. If that is done, you would then have an opportunity to inspect the will and try to determine if it was executed when your mother was incompetent, or as a result of coercion or undue influence upon your mother. (That is, assuming you haven't seen the will.)

If you wait, you can contest the will after your mother passes away. But if he is acting inappropriately, by then your brother may have squandered much of her estate.

[13Hour]

Thanks!

I appreciate your response. I do have a copy of the NEW WILL, and the Power Of Attorney--both carry her signature and were executed about one year before she was placed into a permanent care facility. Today, she doesn't even remember who here children are, and we do not expect that she will survive for many more months.

I am certain that while my "brother" was caring for her, they nibbled into various savings.

Of immediate concern is that my parent's house is being SOLD "unknown" to me, and also being sold in a down-market because clearly my "brother" has a use for this money.

How can I prevent this sale? How can I stop this from happening now?

If there a way to file some type of Injunction or Restraining-type Order without challenging his "legal custody" this late in the game?

Also of concern is a line [Power Of Attorney or New Will] that says any challenges to the estate will be carried, in cost, by the estate. Ergo filing a legal action would be like spending my parent's funds in legal fees. I don't recall if that's in the NEW WILL or the Power Of Attorney--I find it too painful to pull from my closet--and it made my blood boil when I saw it.

So is it possible to just enjoin him in some manner to STOP the SALE of this property, and how can I keep him from spending my parent's money to defend against my actions?

Can I sue him personally?

Thanks again for your consideration!

[Mr. Knowitall]

If you believe your brother is mishandling your mother's estate, you should consider petitioning a court to replace him as guardian. Once the petition is pending, the court would be in a position to restrict any sale and supervise any use of your mother's assets.

[13Hour]

Dear Mr. Knowitall,

Yes! You were 100-percent correct, and I do thank you.

Your sage advice enabled me to overcome what was a hurtful embarrassment, that any member of my family could act in such a fashion--placing money above loyalty or love or honor. It still hurts, and that damage will never be undone...

Based on your answers I was able to speak intelligently to senior lawyers with a solid firm, who quickly assured me that such troubles are actually becoming commonplace, sad as that is! From the research they sent: "As baby boomers approach their golden years, the U.S. is on the brink of the largest intergenerational transfer of wealth in its history. Bequests are expected to total $10.4 trillion between 1990 and 2040, according to a study by Cornell economists Robert Avery and Michael Rendell." This, of course, lends itself to massive fraud, manipulation, and even elderly abuse [which is not the case here].

In my particular circumstance we would have to prove that "Undue Influence" was used upon my aging mother, and that she "was not competent at the time she signed" the NEW WILL, which was written by a friend of my brothers. I have no doubt that we could do this, setting ourselves on a rather tortuous legal path--while the firm quickly examined other possibilities.

I think they have found a better way in this particular case.

The single largest asset in my mother's estate is her house, which sits on enough land to be sub-divided several times. Because of my brother's burning desire for cash, he is trying to sell on the cheap in a down-market. To that end, the senior Real Estate Attorney for the firm made a quick overture to him yesterday--pushing the price down--and I am told we can drive the price down even further.

At this point I will buy the house [unknown to him] through a device the firm is working on now.

If there could be a silly part of such greed and sadness, it would be this. Once I have purchased the property I can develop one lot, and with the right house, the sale of that property could completely cover the purchase cost of my mother's home, therefore this approach to regain my family home costs nothing. Further, under this NEW WILL, both my wife and myself will collect part of the sale from my mother's home, which is merely the two of us getting our own money back again. This makes our purchase fairly cheap.

As for other funds, CDs etc., I'm afraid any recovery would cost more time and funds then it would be worth.

Again, I do appreciate your help--this is a wonderful resource!

Thanks!

[yikes9999]

I am familiar with the "ghost buyer" purchase that you are working on, and can tell you that we had a similar problem in my family and we were successful in doing same. It's a painful process when you have to combat greedy siblings over such matters, especially when your mother is still alive.

Consider not excluding your brother's children completely, as they are your only surviving blood relatives, and your father would probably have wanted his grandchildren to receive the benefits of his life's work after you and your wife have passed. It's hard to comport yourself with dignity when your own sibling is being so flagrantly pompus and greedy, but in the end he will likely squander whatever he receives of your parents' estate as the previous poster stated, and his children may very well end up with nothing. As adults they may also have to wrestle with the fact that dad was not the superhero in life that they thought he was. Therapy is expensive, and so are lawyers, especially when they are battling from opposite ends of the country.

Try to find the best solution that will cost the least both emotionally and financially, as life is short and you've indicated that you don't really need the money. Your brother isn't likely to change his ways unless he crashes and burns completely financially. The best outcome would be that this happens in his lifetime and he eventually learns what is truly valuable in life. This could provide an opportunity for the two of you to reconcile, but odds are probably against it. I know this isn't really legal advice, but your story moved me as I have seen similar things happen in my own family as well as other families I grew up with. Best of luck to you for peace and healing throughout this long, painful and distracting process.

[lwpat]

Further, under this NEW WILL, both my wife and myself will collect part of the sale from my mother's home, which is merely the two of us getting our own money back again. This makes our purchase fairly cheap.

Your brother will use up all of the money and claim he spent it on your mother. This is exactly what happend to us. After you complete this purchase, you need to file for guardianship and have him produce the records. There may be enough to get him removed. Expect to spend at least 20,000 in legal fees just for this.