17 Dec My mom cut my siblings out of her will. What now?
Q. My mother died and she left me her estate, cutting out my two siblings. I have no idea why. Only one account was passed through a beneficiary designation and the rest go to me through the will. My siblings don’t know this yet and I’m not sure what to do. I’m sure they expect we are sharing everything. Help!
A. We’re sorry to hear about the loss of your mom.
And yes, this puts you in a difficult situation.
Eventually, your siblings will find out what your mother did.
Because they are considered legal next of kin – assuming your siblings are your mother’s natural or adopted children and not step-children – they are entitled to a copy of the will once it is probated, said Mary Scrupski, Mary Scrupski, director of estate planning with Prestige Wealth Management in Flemington and Millburn.
This might lead to a challenge to the will.
Scrupski said there are two common grounds for challenging a will.
“Your siblings might argue that your mother lacked capacity when she signed the will,” Scrupski said. “This is a very difficult thing to prove.”
That’s because the legal capacity to sign a will is very low, she said. Even if your mother had dementia, she still might be able to sign a will if she knew who she was, who her family was and what the property consisted of, she said.
Another basis for a will challenge is that the deceased was unduly influenced by someone, Scrupski said.
“This does not sound like your situation if you had no idea why your mother cut out your siblings, but they might argue you influenced your mother to disinherit them,” she said.
In any event, if your siblings decide to challenge the will, it can lead to complicated and protracted litigation.
Depending on your own circumstances and your own feeling about what your mother did, you can always share all or part of your inheritance with your siblings, she said. There is nothing that prevents you from giving your siblings a portion of what you inherit under the will.
It gets more complicated if the account naming you as beneficiary was a retirement account.
“You cannot give away a portion of a retirement account unless you first withdraw funds from the account and pay the income taxes on the funds,” she said.
You might want to sit down with the attorney who drafted the will to find out more about your mother’s intent and to discuss your options. You will certainly need help in dealing with this difficult situation.
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