What do you do if a will states that real estate is to be sold and divided equally among the living siblings, but the executor feels one of the siblings owes the estate money for writing herself checks and taking the father to the bank to withdraw money out of his IRA account all with the father having alzheimers?

Hello C:

You hire your own lawyer and challenge what the executor did.

excon

Hello C:

You hire your own lawyer and challenge what the executor did.

excon

It was not the executor that took the money!

Hello again, C:

It was not the executor that took the money!Ahhhh..

Then the executor ACTS upon his or her "feelings", and SUES the sibling to get the money back. Maybe the sibling committed fraud, and that would be a police matter. If I was the executor, I'd write the offending sibling a letter giving them 10 days to pay the money back, or face the consequences, and I'd LIST them. I'd SEND that letter certified, return receipt requested, and I'd send ALL the interested parties a copy..

If that doesn't get the money back, SUE!

Excon

Hello again, C:

I've had another thought... The executor COULD subtract what the sibling took from his or her proceeds from the sale.. That way, if the sibling didn't like it, it would be incumbent upon THEM to sue, and not the executor on behalf of the estate.

The sibling probably doesn't have the money to pay back, so subtracting their share seems to be a better alternative. There's probably no accounting either.. If so, the estate needs an accountant.

excon

Please be clear about 'writing herself checks,' which is a separate matter from getting your dad to the bank to withdraw from his IRA (something everyone should do while alive, because that's the nature of IRAs). Did she forge his name, or sign hers? And if she signed hers, I'm assuming that she had joint signing or POA to do so? If not, the bank is liable.

And if dad had Alzheimer's, who was taking care of him while all this was going on? If that sibling, is she not entitled to money for household expenses? Or were all those being taken care of in some other way?

I'm not defending her or anyone, at least not until we hear the details.

Please be clear about 'writing herself checks,' which is a separate matter from getting your dad to the bank to withdraw from his IRA (something everyone should do while alive, because that's the nature of IRAs). Did she forge his name, or sign hers? And if she signed hers, I'm assuming that she had joint signing or POA to do so? If not, the bank is liable.

And if dad had Alzheimer's, who was taking care of him while all this was going on? If that sibling, is she not entitled to money for household expenses? Or were all those being taken care of in some other way?

I'm not defending her or anyone, at least not til we hear the details.

She was helping to take care of him but was writing checks out to cash and having him sign them. No receipts! She did not live with him. She was also using his money to pay her bills like rent, lights, etc. and also tag teaming with her daughter to obtain money in which her daughter used to purchase drugs.

Ok, here's the thing. If she was helping to take care of him, then she could have been using the cash for his care. Since it was cash, its hard to prove what it was spent on.

However, the executor does have a right decide to reduce her share by what she can prove was spent. Seems the executor would have cancelled checks to show the expenditures.

As excon suggested, deduct that amount from what the sibling gets. I would put that money away until any litigation is settled, then divide it among the remaining siblings.

Ok, here's the thing. If she was helping to take care of him, then she could have been using the cash for his care. Since it was cash, its hard to prove what it was spent on.

However, the executor does have a right decide to reduce her share by what she can prove was spent. Seems the executor would have cancelled checks to show the expenditures.

As excon suggested, deduct that amount from what the sibling gets. I would put that money away until any litigation is settled, then divide it among the remaining siblings.

Thank you. We have a lot of cancelled checks with her endorsement on the back with no receipts as I mentioned. We also have those checks made payable to her landlord and others. We just don't want to do anything wrong and get into any kind of legal trouble.

To the OP: you say you have lots of cancelled checks - can you tell who signed the checks? Was your father's signature forged? If not, though I understand the desire to right what appears to be a wrong, the executor has no authority to go back to times while the father was still alive and double-guess what his state of mind may or may not have been. Even though the father had alzheimer's apparently he was never declared incompetent, so if the father decided to give one of his children money while he was still alive that was his right. If I was the daughter I would claim that these were gifts, and if the executor tried to cut me out of the will or give me a smaller portion of my inheritance I would threaten to sue. The only recourse the executor has here is to try to prove that the checks were forged or coerced, or that they were a loan and not a gift, but that's going to be difficult to do.

What ebaines said. An argument might be made that these were advances on her inheritance, but it wouldn't be easy to prove.

Hello again, C:

What doesn't look provable NOW, may be imminently more provable AFTER an accountant puts the books in order. That's your next step.

excon

What I would do in a case like this is, do as your instructed by the will. But when it comes to the ditribution of funds for the person in question I would deduct the suspected amount and put it in a trust. Explain to them the descrepency that has been found and ask for an explination before the funds can be released. If they claim the "cash" was an advance in what was to be given then that portion goes to the rest of the heirs. If they were the sole caretaker you also have to consider reasonable pay for the work they were doing vs a private nurse or facility. They may by the laws of your state be entitled to compensation and that is what the checks may be about.

My bank has a minimum charge of 2,500 for a trust...

No need to create a trust. The exceutor just keeps the estate open and keeps the money in the estate account until the issue is resolved.

A trust account is not necessary. ANY account in the estate name is sufficient. Though the money should be kept separate. This was what I meant by putting the money away until any litigation is settled.

I guess I should have never asked a question on here because the story is too long to tell what this family member has done. If only everyone knew the WHOLE story they would truly understand why the executor feels she doesn't deserve anything. And yes there were cancelled checks showing "LOAN" written in the memo. Checks were handed to the father to sign with him trusting the daughter to do the right thing. On the other hand he had no clue what she was doing. Very sad that children take advantage of their own parents when they have been taking care of them their whole life. It's also sad that a 61 year old woman can't stand on her own two feet!

Hello C:
the story is too long to tell We GET it. But, STORY is not the stuff we're interested in. Frankly, our advice will also protect the sibling in case you're WRONG.

That's exactly WHY we suggest that you actually get to the BOTTOM of it, instead of accusing the sister when you have NO proof. That's the reason I suggested that you have the books AUDITED. When YOU look at a check with "loan" written in the memo, YOU have NO IDEA what it means, or what to DO about it. A CPA DOES. IF this sister ripped off her father, HE'LL be able to determine it.

Excon

Hello C:We GET it. But, STORY is not the stuff we're interested in. Frankly, our advice will also protect the sibling in case you're WRONG.

That's exactly WHY we suggest that you actually get to the BOTTOM of it, instead of accusing the sister when you have NO proof. That's the reason I suggested that you have the books AUDITED. When YOU look at a check with "loan" written in the memo, YOU have NO IDEA what it means, or what to DO about it. A CPA DOES. IF this sister ripped off her father, HE'LL be able to determine it.

excon

The thing is we do have proof!

Hello again, C:

The thing is we do have proof!Then the solution is simple.. Sell the house, divide the proceeds, and pay the offending sister with receipts for the money she stole. If she doesn't like it, she'll sue. If it winds up that she TOOK more than her share, you SUE HER.

But, your "proof", probably ISN'T proof enough for a court of law, and it's NOT proof enough for me. I think what you have is rank speculation.

So, we're back to getting the books AUDITED..

Excon

Not sure if an accountant is necessary but a lawyer is so that's the path we will probably end up taking. I don't see how paying your rent with money that was not yours justifies being paid for taking care of an elderly parent. If you are a good son or daughter you should take care of your parents and not expect to be paid for it in return. Just my opinion.

Hello again, C:

I don't see how paying your rent with money that was not yours justifies being paid for taking care of an elderly parent. I HAVE opinions too. But, we hear STORY all the time on these boards, and we DON'T form our opinions on it.

Look. NOBODY here is defending your sister (I presume that's your relationship). She PROBABLY is a crook. But, you don't KNOW. You DON'T know what arrangement she had with your father. Maybe she paid a bill for him and he agreed to pay her rent for her that month. You DON'T KNOW!!

ScottGem wondered where the siblings WERE when your father needed help. I wonder too. How come you show up when the money is about to be split up? The TRUTH is, IF your father was incompetent, SOMEBODY, maybe YOU, COULD have had him legally declared so, and had somebody the family TRUSTS handle his affairs.. But, that isn't what happened, is it? Yes, I have opinions too.

It's GOOD that you're going to hire a lawyer... But, if you don't know EXACTLY how much she stole, an attorney won't either. That's why HE'S going to HIRE the CPA that you don't want to hire.

If it was ME, I'd hire the CPA FIRST to find out whether she's stolen anything or not...

Excon

I guess I should have never asked a question on here because the story is too long to tell what this family member has done. If only everyone knew the WHOLE story they would truly understand why the executor feels she doesn't deserve anything. And yes there were cancelled checks showing "LOAN" written in the memo. Checks were handed to the father to sign with him trusting the daughter to do the right thing. On the other hand he had no clue what she was doing. Very sad that children take advantage of their own parents when they have been taking care of them their whole life. It's also sad that a 61 year old woman can't stand on her own two feet!

First, this is a legal question asked in a legal forum. So our answers need to conform to statutory law.

As excon said, we DO get it. We understand it's a sad situation. We also understand you have proof. The question is proof of what? What you have proof of may not be proof of malfeasance. That's what the law is concerned with. The executor cannot just withhold from the inheritance because they fell the heir took advantage. A court has to agree with that. That's why the best and legal course of action is to withhold the amount the executor feels justified and keep that money separate until an litigation over it is completed. If the litigation support the executor's claim that the monies withheld were funds gotten by fraud or advances on her inheritance or whatever, then they can be distributed.

Hello again, C:
I HAVE opinions too. But, we hear STORY all the time on these boards, and we DON'T form our opinions on it.

Look. NOBODY here is defending your sister (I presume that's your relationship). She PROBABLY is a crook. But, you don't KNOW. You DON'T know what arrangement she had with your father. Maybe she paid a bill for him and he agreed to pay her rent for her that month. You DON'T KNOW!!!

ScottGem wondered where the siblings WERE when your father needed help. I wonder too. How come you show up when the money is about to be split up? The TRUTH is, IF your father was incompetent, SOMEBODY, maybe YOU, COULD have had him legally declared so, and had somebody the family TRUSTS handle his affairs.. But, that isn't what happened, is it?? Yes, I have opinions too.

It's GOOD that you're going to hire a lawyer... But, if you don't know EXACTLY how much she stole, an attorney won't either. That's why HE'S gonna HIRE the CPA that you don't want to hire.

If it was ME, I'd hire the CPA FIRST to find out whether she's stolen anything or not...

excon

Didn't see the post where ScottGem asked about the other siblings helping the father. Everyone took care of my father-in-law and never asked for a dime. They did so because they loved him, not by how much money they could get from him to pay their bills. We are talking thousands of dollars here. We are not in it for the money. We are in a situation now where the money the sister took could have been used for home repairs, taxes, etc. but the other siblings are going to have to start paying for these things out of their pocket. The one sister we are talking about doesn't have any money, hasn't worked for the last 11 years and thinks there is money in the estate so she doesn't have to pay her part. This is what I'm trying to get across. I know an accountant so I will call and talk to him first as you are suggesting and we will go from there.

Also, what you feel is proof may not be proof in the eyes of the court.
Just be prepared for a shock.
Life isn't always fair.
I took care of both my parents, who died 6 years apart. Fortunately my dad, who died last, was mentally sharp until the last day. Fortunately my siblings had no fears that I would abuse their future inheritance, and they thanked me repeatedly. I never did a tally of what I contributed and what my dad spent. And I didn't think my time needed to be paid for, because I wanted to do it.
I understand about the drugs and use of his account for her own bills. But without his word that the ones that didn't say 'loan' weren't a gift, they are probably going to be considered a gift. Canceled checks that say 'loan' on them need to be digital pictures from the bank, not physical checks. Those are not going to hold up in court for the obvious reason - the word 'loan' could have been written on them at any time.

We are not in it for the money. We are in a situation now where the money the sister took could have been used for home repairs, taxes, etc. but the other siblings are going to have to start paying for these things out of their pocket.

This isn't something that anyone should be paying for except the estate. That home is to be sold. The only thing is if there are leins on it for taxes that may need to be addressed. Dumping money into the home implies an investment. That is not the job of the Executor. The choice to be made is either to sell the home short (fixer upper) or revamp it by directing the funds from escrow at the time of sale.

Just remember that all that have a vested interest will share in the profits including the sibling in question. So it might be best to sell "as is" and let this matter be behind you.

It's OK to be concerned about money, especially misuse for one person's gain.
I hope I didn't sound high and mighty. I was just lucky.