How can we get my sister to legally sign off the estate that the will probated?

A fellow caregiver asked...

My mother passed away 4 weeks ago and my brother and I have been named co-representatives. There are 3 of us and the younger sister has been financially abusing our mother for over 15 years (since our father died in 1996). I found most of our mothers check registers, bank statements, notes written to herself over her distress over paying my sisters and her children's bills, etc. The will, dated 1983, has not been updated. In 1994, my sister went through a divorce and our parents helped her and her 3 children get re established near them. They bought a house with the understanding that my sister, whose name is on the original mortgage, would take over the mortgage. That never happened, even though she has lived in the house at least 12 of the 17 years. The will never mentions that house which was "right of survivorship" and upon our mothers death went to her. The will now reads to share the estate that is left which is a bank account of under $15,000. and a house worth approximately $34,000. I have uncovered that our mother was paying our sisters mortgage, gas and electric, utilities and property taxes as well as "lending" her money for well over the last 10 years. My sister was working and collecting social security disability. We feel as though she has gotten more than her share and want her to legally sign off the estate that will be probated. The paper trail indicates over $50,000 has been paid out for her bills and over $30,000 has been "loaned" with no indication of payback to her and her adult children. Do we have a case? There is also over $2,000 spent after my mother went into the hospital using her debit card, of which she had no power of attorney, within a 10 day period. Please help us decide how to get her from getting any more from the estate!

Expert Answer

Judy and Fred co-mediate family property and financial conflicts, and each work individually as mediators as well. Judy Barber, a mediator and family business consultant, assists clients in resolving overlapping family and money conflicts so they are better able to make sound estate planning decisions. Frederick Hertz is an attorney and mediator who specializes in resolving co-ownership matters involving families, siblings, spouses, cohabitants and domestic partners.

Based upon your summary of events there appear to be four different facets to the issue of your sister "signing off the estate." First, you say that the house your parents bought with your sister has been transferred to her "“ though you don't mention whether there is any equity in that house. If there is little or no equity then this is not something that you need to focus on. Second, your mom apparently was paying many of your sister's bills, to the tune of about $50,000. Third, your mom made more than $30,000 in loans to your sister, without arranging for getting them paid back, though it's not clear why some of these payments were gifts and others were conceived of as a loan. And fourth, your sister spent about $2,000 on a debit card of your mom's, apparently without her approval.

From a legal perspective you will need to analyze each of these four problems separately, and depending on the law of your particular state you may or may not be able to "debit" some or all of these obligations against your sister's share of the estate. Hard as it may be for you to acknowledge, in most such situations it is very difficult to "take back" a gift, even if you think your sister took advantage of your mom. There's a fine line between unwise generosity (which is nonetheless legal) and elder abuse or undue influence (which can result in an obligation to repay the funds), and you may find it hard to prove that what your sister did was legally wrong, even where it is clearly wrong from your point of view. It's a different story where there is evidence of a loan or unauthorized use of a debit card "“ as that may be much easier to demonstrate. We recommend that you explain this entire story to a local attorney who has experience in presenting such claims in the probate court, so you can get an objective read on the likely legal outcomes for each of the four elements in your claim.

But even if you have legally valid claims, I doubt you would ever be able to recover very much of the money your sister already has obtained, since it probably has already been spent. If her one-third share of the remaining estate is only worth about $13,000, the last thing you want to do is spend twice that amount on a lawsuit seeking to recover what is, in effect, barely one-sixth of the $82,000 that she has already received. Thus, even if your lawyer tells you that you have a strong legal case, it may not be worth it financially to pursue her.

We also want you to consider whether it will be emotionally good for you, or for anyone in your family, to pursue this claim. Your feelings seem entirely legitimate, but it's equally important for you and your brother to accept your sister's limitations and needs. Your mother may have felt an obligation to help her, and even if you don't share that sense of duty you still may be able to find a way to come to terms with her ways. Keep in mind that the main person who benefits from "forgiveness" of this sort of situation is the one doing the forgiving, which is you.

In the end, it probably is worth asking her to disclaim her one-third of the estate, in light of what she has already received. You can frame the question in a non-judgmental way, and also you can make it clear that you are not expecting her to pay anything else back. Then, hopefully she will see the justice in your request and accede to it without your having to pursue a legal claim. But if she utterly refuses to compromise, you should make your decision about next steps based upon what is best for you and your brother, both financially and emotionally.