How do I prevent a probate battle before Mom's passing?

15 answers | Last updated: Nov 01, 2016
A fellow caregiver asked...

My mother is 81 and in excellent health. However, a time is coming when she will pass, leaving a substantial estate for my sister and I to roughly split. My mother is not very forthcoming with me as to where all of her estate is distributed. I feel that my older sister is privy to such info and, therefore, in a position to do some things with the estate out of my view. How can I deal with these suspicions now so as to head off a nasty probate experience?

I've brought the subject up to my mother and sister stating that I don't want my sister and I to go through a messy inheritance process like her brother did. They seemed to appreciate the proactive discussion, but I still feel uneasy as to what may actually happen. I feel that my sister will get the bulk of the estate claiming that it was mom's wish. I feel like I'm going to have to make a formal challenge the day after mom passes because I don't trust my sister to do the fair thing. How should I proceed so that we are in fact treated equally in Michigan?


Expert Answers

Barbara Repa, a Caring.com senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

There are already two hopeful signs in the hard situation you describe: You brought up the tough topic of your fears about an unfair distribution of the estate with your mother and sister"”and they were open to discussing it.

If your mother doesn't have a will or trust that clearly spells out her wishes about who should get what property after she dies, encourage her to do so. These legal documents are fairly bulletproof; the survivors are simply required to carry out the directions expressed in them. While they don't always avoid every mess, since survivors sometimes feel they should have gotten more or different property, at least they take the guesswork out of the issue.

Since there appears to be some idea that your sister might act unfairly"”and she might harbor the same concerns about you"”you might also encourage your mother to name a different person to act as the executor or trustee charged with collecting, managing, and distributing the property after her death. That would remove the onus from both of you.


Community Answers

Amd answered...

sounds ssoooo familiar! you are not alone. Dealing with exact same thing,only my mother is on her death bed..


Rjones answered...

Contact a local attorney who specializes in wills/trusts/probate. They would be the best one to advise you of the best way to handle this. There is no better time than the present to take care of this hard issue. It will cost a little money, but the time, effort, and money saved will be worth it when you mom eventually does pass. Good Luck.


Biely answered...

A will is not always bulletproof. A year ago my father passed away with a will dividing his assets equally between my sister and me. However, unbeknownst to me (and I firmly believe to my father either), all his bank accounts listed my sister as either beneficiary or on the account because she lived close to him. Therefore, his will was considered without assets. Legally I received nothing. I know that was not my father wishes. My sister and I have not spoken for over a year. It is a very sad situation since we were always very close. I agree with RJones about contacting an attorney now who will counsel and mediate this issue before it is too late like with my sister and me.


Rjones answered...

Thats why you need a trusted attorney who can advise the best way to avoid pitfalls.


Punkersad-sharon midlothian, il answered...

I am kind of in the sisters position but am not. I am on my mom's checking and savings account because I paid the bills and I had to watch it. My mom had a habit of buying $2000 worth of magazines (just pennys per day!!!!)If she needs to go on medicaid then the house will be transferred to me because I have been her caregiver for 5 years. I plan to follow her will and devide everything 6 ways but I think there might be a problem with gift taxes. Right now I am just collecting the stuff from my dad's death so we want to get that settled and find out what he had before I set up my mom. My lawyer for the guardianship does not understand why I dont keep the house because I have had to quit my job and have provided free caregiving. I know that my siblings would help if they were allowed to or were able. So I dont feel that I should really get anything more than them. The hassle and bad will created by greed is not worth the money that I would inherit. Sure it would be nice but I can survive. I am a big girl now and dont need her money. My neighborhood is occupied by alot of people the same age with parents dying left and right. In many cases families are broken up by arguments and fights at a time when they need to pull together.


Eleclyt answered...

THX, biely, I now know why my brother is squirreling away Mother's SS and other incomes. He has guardianship and conservator power.

I don't know where I'll get the money for an attorney


Biely answered...

To sadsack - that is the difference between you and my sister. You will do the fair and honorable thing when your Mom passes. No amount of money is worth the pain I felt when my sister refused to abide by my father's will. I not only felt the loss of my Dad but also my sister and her family as well.

To eleclyt - Check with your state agencies to see if you can get free counseling or some attorneys might set up a payment plan.


Eleclyt answered...

Sadsack, I believe there is an allowance for $ gifts. Anyone can give anyone $X each yr. I think X=10,000.


Punkersad-sharon midlothian, il answered...

Thanks for the information.Eleclyt. I really will have to look that up.


Adjunct prof.rosellfernandez answered...

Lots of good and bad advice. Let's see I am now researching probate for my mom.I have the same situations as above. However my philosophy is as follows: if my mother wanted my sister to have more than I --well hellooo? respect the wishes of the person. Greed factor. 2. beneficiary on accounts, that's right. That is how the banking industry will respond to that issue. The sister had the choice of adding her name on as well if she was concerned; however she was not the one paying the bills? correct? correct. The sister was doing the work, let her enjoy the fruits of her labor and too bad for the lazy sister who did not assist.The person who says she was the caregiver for five years and her mother could now get Medicaid if necessary? that has to do with transference of property and funds, not that one took care of a parent for 5 years. The 5 year rule is applicable for property ownership. Finally, a trusted lawyer? hahaha...some lawyers know their stuff and way too many don't. Here is my take on all of this. I stopped by sister from taking the house all to herself..long before our mother passed on. I talked to mom, and I made a legal move.

If you are fighting for money in an estate, it's because your mom or dad didn't want you to have it, and did not want to tell you to your face. How is that for a reality check? Even though my own children are brats to the "t" when I depart I want them to have whatever I had and I don't want judges, lawyers or any state interfering and depriving them. But I am alive and saying now and will include it in my will. No stranger has the right to interfere in my family and my wishes..why should lawyers and the state get money that they (kids)can use after am gone. Come on. Stop being greedy. You didn't get anything, move on, you stole your brother or sister's inheritance then know that there is a payback. Lawyers are stupid. and I am in law school at 62-years of age because I am sick and tired of them. I will help people by giving out correct information.


Biely answered...

I don't think you gave any helpful solution to the person asking for advice. Yes, I agree if the parent wants one sibling to have more or even all of the estate, then that is fine. However, the problem lies when the will is divided equally but due to other issues surrounding bank accounts,stocks,bonds,etc., one sibling acquires more or even all of the estate regardless of what the will says or of the wishes of the parent who didn't not realize what would happen to their various accounts when they passed!


Www.eeadmin.com answered...

I hope this isn't too late to answer your question!

This is very common, you are not alone! Parents often name one of their children as the primary executor and power of attorney to their will and estate. Exclusive Estate Administration has dealt with several cases where there has conflict/dispute over the distribution of the will or estate. Based on my first and second-hand experience, it is best to be preventative of conflict between family members.

Meet with an experienced neutral (3rd party) professional whom you both trust. (Make sure that the professional you both agree on is licensed and bonded!) This is can be an emotional experience for anyone, higher a professional and FOCUS on what is important, your mother. Hope this helps.

Visit: www.eeadmin.com

P.S. Exclusive Estate Administration has professional expertise and proven methods that will save you thousands of dollars in estate taxes and help to avoid probate.


Geo2015 answered...

How do you prevent a probate battle before Mom's passing? If I could provide the definitive answer to this question I'd be a Billionaire overnight! You need to be strong! For sure, you need some serious cash around to protect your share of the estate, to protect your inheritance, which only comes around once, so to speak. But you need the strength to talk to your Mom directly, to protect what is yours… and you need the strength to see your sister as she really is, her real motivations for example… and the courage to talk to her directly, in a tough, quiet, yet businesslike way. So many people in your position, or right smack in the middle of probate, are dealing with similar problems -- in fact I spoke to a woman recently who can't find any of her probate records... The only other heir, her brother, also made himself executor and fired the original probate lawyer, while hiring his own allegedly corrupt attorney. A 7-figure estate gone missing along with all the paperwork, Will, Inventory Sheet, the entire probate file at the probate court -- everything supposedly gone. And the woman I spoke to thinks her brother has absconded with the cash and real estate and vanished to another state, after throwing her a mere $7,500. Obviously, you are concerned that your situation may morph into something like the nightmare probate estate scenario I just described... so you want to avoid that, of course, and you are listening to your instincts telling you something is not quite right with your sister. First off – Talk to your sister and be very direct (I suspect you are not that direct with her when addressing tense matters like this) and ask her what her intentions are regarding the estate and management of the probate process… and sticking to what the Will says about equal shares, etc!! If the Will isn’t clear about this – talk to your Mom and get her to add some “equal shares between siblings” language to the Will, witnessed and signed… possibly with her attorney present. You might want to make absolutely sure your sister doesn't become executrix, and look into taking on that role yourself; plus choose your own (experienced) probate lawyer, if you can. If you can't hire the attorney you want for the estate for whatever reason, and/or you don't have access to a lot of cash right now -- but you do want to hire your own attorney soon after probate has started, to protect your inheritance interests -- you can always look into really fast, secure inheritance loans... or probate loans with an established inheritance advance firm like www.heiradvance.com, or www.inheritanceadvance.com, or www.inheritancenow.com – it’s a good confidence booster for sure. If you get yourself a nice big inheritance advance soon after probate has been filed... you'll be able to afford your own probate lawyer within a few days, you’ll feel a lot more confident all around; in fact it’s a super fast turnaround – you usually get your inheritance advance 48 hours after your inheritance loan or probate loan paperwork has been received by the inheritance advance firm. And inheritance loans don’t require you to answer questions about employment history or income status or credit scores… Anyway, you get the picture. Inheritance loans, or inheritance advances, are much easier and much faster than bank loans. The inheritance advance application form takes 3 minutes. Your estate or trust fund paperwork is the key to getting approved for an inheritance advance, along with several other factors – but the inheritance advance process will be fast and smooth, and will give you the financial foundation you will need to protect your inheritance and the estate in general. Good luck!


A fellow caregiver answered...

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