How can I make sure that my sister inherits mom's estate without a will?

5 answers | Last updated: Oct 08, 2016
A fellow caregiver asked...

My parents had 7 children. One died at 2 years old and one at 49, several years ago; so there are 5 of us now. Dad has been gone many years; Mother is now 96 and one divorced sister lives with her and cares for her. We other siblings agree she should inherit Mother's estate, which will be mostly just her house and a couple of acres of land. This sister has no home, having lost it in a bitter divorce. The rest of us have homes and will be happy to give her our shares. However, the deceased sister has 4 grown children with families. We need to know if we must offer them the share that would have gone to their mother? If my sister must do this, she may need to sell to give them their share, which destroys our intent. Mother has no will and will not agree to even talk about this. She's rather old-fashioned! This will be in Tennessee. Thank you!


Expert Answers

If your mother dies without leaving a will, the distribution of her property will be controlled by Tennessee law, specifically what is called "intestate" law. [Intestate" is legalese for dying without a will.}

I do not know Tennessee intestate law. Generally, state intestate laws (every state has them) specify that intestate property go to the closest legal relations. There may well be a provision in Tennessee intestate law that requires that your deceased sister's share of your mother's intestate property go to that sister's four children.

Of course, those four children could refuse to accept that inheritance. [Legally, that is called a "disclaimer."] But I have no idea if they would all agree to do so. In any case, it's risky.

However old-fashioned your mother may be, I suggest that by far the best thing to do is to have her sign a will, leaving her property to her sister. The will should be drafted by an attorney, or at least checked by one, because to exclude one's children (or children or a deceased child) from receiving property of a parent, that must be done expressly and explicitly.

However old-fashioned your mother may be, that is not, in my opinion, a valid reason for her to refuse to write a will. Her sister has lived for her and cared for her. All your mother's living children agree that this sister should inherit your mother's property. For your mother to refuse to write a will that insures this will happen is not, in my opinion, being "old-fashioned." [Old-fashioned people have written wills for centuries.I suggest that you and your siblings doeverythingl you can to convince your mother that the right thing to do, and the ONLY right thing to do, is for her to sign a will leaving her property to her sister.


Community Answers

Dorisj answered...

Thank you, Mr.Clifford! However, you misunderstood the info. It is MY sister, not my mother's sister, who is caring for her. I will attempt to find out online what the intestate law is in Tenn. I do not think there is much hope in getting my mother to agree to a will; we have tried, believe me! She simply says she doesn't care what happens after she is gone! I guess the correct adjective, instead of old-fashioned, is STUBBORN! It may be that she would want her deceased daughter's four children to inherit, and that would be fine with all of us, except that our sister would need to sell, if that happens. She doesn't have adequate funds to pay their shares. We all plan to "sell" our shares to her for $1.00 each, if need be. Thank you again for the information!


Hugs4me? answered...

I, too have been faced struggling with a similar situation. My dad died Sept. 2010, I promised him if anything happened I woukd take care of mom. They were married 61 yrs. Dad did pretty much everything or I did. Mom always let everyone else do everything if she could; never wanted to learn how to take care of things. My son also passed away 4 months before my father, so I wasn't ready to take on caring for mom. My grandchildren are grown up (20 & 21 yrs. old)and their father raised them alone for years. My parents never had a will which is, to me, so irresponsible. It places a burden on the rest of the family to sort it out. What I have been doing is distributing as much as I can while I am still alive to my grandchildren and everything else has been written out, so everyone knows what is to heppen when I'm not here. I don't want them to fight or be at odds with each other. My companion of 19 yrs. is totally in sync with all of us so there won't be any problems. I guess it's like a living trust. It's never too early to start taking care of your affairs. Thank you!


The caregiver's voice answered...

Sadly, this is all too often the case--our elder loved ones don't have their estate plans in place.

FIRST, I'LL OFFER MY OWN EXPERIENCE AND THEN RECOMMENDATIONS BASED ON MY AND OTHER CAREGIVERS' EXPERIENCES.

MY EXPERIENCE

My father didn't think setting any of this up was necessary as he planned to live another 15 years. He was 85 when he said that and experiencing early dementia.

It took a lot of patience and helpfulness. It was he who asked me to serve as his POA of his bank account so that I would help him make sure the bank didn't forget they had his money. (Symptom of dementia.)

It was I who suggested him giving me a POA--this was after my husband and I agreed to move him from his WI home of 45 years into our CA home since my brother who lived in our father's home seemed to NOT be caring for him.

In need for certainty, I later went to court to get a voluntary conservatorship ("guardianship" in some states)--a costly and intensive process but nothing compared to what could happen if my siblings decided to sue me for one reason or another. This way the court oversight provided guidance of my activities and required my siblings to rise an issue if they had one--they did.

RECOMMENDATION

Draft an agreement among the living siblings and even the children of the diseased sibling (if they agree) to leave the estate to the divorced caregiver sister. Although this agreement is not a will, it MAY stand in court as your mother's estate is settled. Oral agreements can be easily changed. Written agreements are better.

Meanwhile, let your "old fashioned" mother know that by not stipulating her will she will create more pain and trauma for her heirs as they wait for the courts to settle everything in probate--could take a year. Depending on the size of her estate, it could be subject to taxes leaving even less to her heir(s).

Finally, check to see if there is an existing will with your county records office. People sometimes will file with their county so it's on record. Who knows...there may be a will or some other document filed already.

I am not an attorney, but know enough to (be dangerous--;o)know what questions to ask or what I need to be concerned about.


Gybo answered...

My 95 year old grandmother was the same way. She didn't want to talk about any money issues, wills, or funeral arrangements. She was always very short and got angry if you pushed it or brought it up to often (more than once every couple years). This has been going on since she was in her late 70's. She was independent then but the family just wanted to know if she had a will.

I have been caring for her for 5 years and through time I found the real reason. She always felt people asking were just waiting for her to die so they could have her stuff. I eventually broke the ice and now have full Power of Attorney, Medical POA and I have set up a trust where I am a co-trustee.

Some ideas:

  1. Have each child write a short note stating their desire to have your sister the beneficiary. The notes should include why they feel that way and a sincere desire that it is a VERY long time before anything like this happens. Present it as "you don't care what happens when you are gone so let's just go ahead and make sure sis is taken care of since she is there for you right now. Then we don't ever have to discuss this again and all of our conversations can be about the good stuff."
  2. Discuss that if she ever became to ill or disabled knowing the house is there with your sister may avoid her from having to go into a nursing home. (maybe transfer the property before she passes).
  3. If she still battles it your sister should sit down and have a very serious heart to heart. Mom. When you say you don't care what happens when you are gone I hear you say I don't care if I am taken care of. I doubt this is true otherwise I wouldn't be devoting this part of my life to helping you. I care about you and I am sure you care about me. If you don't care about me should I care for you? Of course find your own words. Hopefully sis is not just using her and is prepared to move on if you mom doesn't cooporate.
  4. Another option. Just don't worry about it. It's her property and if she doesn't want to deal with it then make the best of it when the time comes. Love her, care for her and be there for her regardless of the situation and gain the rewards that come from that. It is possible she will come around eventually once she realizes that it's not about someone getting her posessions. Good luck and God Bless