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Fraudulent Act by Executrix
My mother passed away in 2012, leaving a will that stipulated her assets were to be divided 50/50 between my sister and me. Her assets consisted of real estate, car, personal inventory. However, in 2007, she made me joint acct. holder with Rights of Survivorship on her bank accounts (savings, checking, CD and MoneyMarket), and we signed the Member Agreement. The Agreement clearly states that the ROS designation would mean that the funds in the accounts would not pass to her Estate upon her death, but would pass directly to the joint account holder as survivor/owner. Upon her death, I notified the bank and requested information concerning the status of her accounts. I was assured three different times by bank personnnel that the money was mine, according to the Member Agreement.
Although I had been named executrix in the will, I declined for personal reasons, and my sister as alternate was appointed. She immediately contested the ROS, first saying I coerced/exploited my mother into giving me the money, then she said that the will stipulated division of her assets, then she said Mom was incapacitated/incompetent at the time the contract was signed. She went to the bank with all of these accusations, showed them her document appointing her executrix and convinced them to release almost $8000 to the "Estate" (her), stating that there was no money for her to pay expenses of the estate. Later, the bank realized their mistake, replaced the money into the account and said they would recover the funds from the estate. There is no readily available cash in the estate and I don't know what my sister told them, but the bank has apologized and said they would not try to recover the money, they would take the loss. My sister never mentioned that there were liquitable assets and from what I have always heard, those assets should be sold to pay expenses. However, now my sister has the $8000, has padded her expense list, sold the car and kept the proceeds for a total of $10,000 - to have a simple will probated. Now,she has demanded I give her more money for expenses. I have offered her $40K cash, said she can have all of the real estate (approx. value $100K), she declined my offer to give her all of Mom's personal inventory (clothes, furniture, etc.), took a $12K diamond ring, refuses to pay me half of the proceeds from the car, and has demanded she wants more money for expenses. I know for a fact, she has deliberately spent most of that money trying to build a case against me by getting all of Mom's doctors reports, doing research on elder abuse, etc. I was the one who took care of Mom, made sure she saw all 12 of her doctors on a regular basis, shopped and ironed, cleaned her apartment and did every thing for her. And now I get threatened with a lawsuit if I don't give in to my sister's demands. I feel she is trying to extort money from me and I don't believe my attorney is really aware of how she is manipulating the situation. In my opinion, she has misrepresented the Estate to the bank, who has finally, after 8 months, given me written confirmation that they are honoring the ROS, although she is still insisting the agreement is invalid and says she can prove it. Right is right, and I haven't done anything she says I did. But I have been advised that a jury could take her side because I was arrested 30 years ago. Isn't that something!? She's the one probably committing illegal or at least fraudulent acts, but I'm the one being punished for doing everything I could to help my mother. She didn't lift a finger to help. So do you believe what she has done constitutes malfesance (sp). Or fraud? |
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Has the will been submitted to probate? The bank did make a mistake, without a court order, they should not have given her any money. Have you now, removed the funds from those accounts and placed them in accounts solely in your name? You should have done so.
If the will has been submitted to probate, then you fight this out in probate court. You ask for an accounting of the estate. Or you ask that that she be removed and you appointed. |
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I don't believe my attorney is really aware of how she is manipulating the situation.. . But I have been advised that a jury could take her side because I was arrested 30 years ago.
... So do you believe what she has done constitutes malfesance (sp). Or fraud? |
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Actually, I was just answering the question asked. OP may ultimately win, but it's not a foregone conculsion. A jury "could" take the executrix's side, but not necessarily.
I'm a bit puzzled by the suggestion that this will end up with a jury trial. Usually, probate matters are not jury trials. It's posslble, I guess, but not likely. |
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I think a jury trial might come in if the executrix is charged with fraud for getting the bank to hand over the $8K. The bank clearly believes a fraud was committed if they returned the OP's money and they may prosecute if the executrix does not return the $8K.
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 Originally Posted by Fr_Chuck
Thanks for answering. |
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Originally Posted by ScottGem
I agree to give her what she wants out of the estate, but I know that somehow she will end up with more than 50% of money, property and whatever else she can squeeze out of this. Like I said, my attorney really doesn't understand how cut-throat she is! I don't know how I can protect what is rightfully mine, except to see a detailed accounting of her expenses and her attorney's fees for work he has done. I have stated, seemingly on deaf ears, that I will not pay for her expenses incurred to build a case against me, and I don't want to sign an agreement until I see what she has spent with MY $8K, no one seems to acknowledge the fact that she has used MY money for all of her expenses. Guess I will be a little more patient and see if she complies. Thanks for your answer and for allowing me to "vent"! |
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Originally Posted by AK lawyer
And what happens if she manufactures enough evidence and plants that seed of doubt? We aren't talking about a whole lot of money involved, even less when you consider the cost to fight it out in court. I don't know what to do. |
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Ok, the situation is that you could be accused of exerting undue influence to get your mother to remove the cash assets from the estate by making you a joint owner. Think about it from her side. The will says a 50/50 split, but you already got a large chuck of what would have been in the estate, so its you who are now getting more than 50%.
This might also be how it looks to a jury or even a probate court judge. Why did mom decide to shortchange your sister after making a will with an equal split? The way you defend yourself is by showing mom was fully competent at the time she added you to those accounts. However that may not be easy at this late date. You really should have done something at the time, anticipating this happening. |
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Even if the bank worked in error, I just want to say (having recently dealt with the deaths of both parents, as sole caretaker) that the two big and immediate costs are funeral and legal fees. Funeral homes expect to be paid before any other creditor and that's the understood arrangement with banks and lawyers. My dad's estate fee from the bank lawyer was 5K and the funeral was 6K.
I went through a brief panic over funds because I failed to get a joint account with my dad while being his caretaker, and had to pay for the funeral deposit and a full tank of oil, and suddenly MY money was down to nothing, with no clue when I would be reimbursed. Fortunately my executor sister is not mean or greedy. You may have a mean sister, but you failed in some respects by not using the cash to pay for immediate expenses and getting reimbursed later as assets were sold. You don't say how much was in that account other than the 8K. I too would not be happy with the ROS when the will said 50/50. I too would think it might have been an innocent mistake on her part at the bank, when what she meant was she just wanted you to be able to sign. A lot depends on how much cash was in the account. That aside, of course you are entitled to an accounting, which you get from the probate court as a matter of routine. And if you feel that the ROS was what mom really wanted you to have, as compensation for taking care of her, fine. But I'd expect that it would have included doing the job of executor, which you passed on. It's too bad this turned sour for possibly all the wrong reasons. |
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Originally Posted by Donald2013;
But there is no telling for sure how the minds of the judge or jurors will work. |
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