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

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 Answer

Barbara Repa, a 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.