My brother knew what the will stated yet he said that my mother "told " him to take all the money. He was the power of attorney, trustee of a Medicaid trust and the executor. He feels entitled to it because he provided most of the care to my parents since he lives in the same state. I believe the attorney told him to put my name on any accounts, but he did not. I am really struggling with this because it was a lot of money. I really prefer not to sue him because he is my brother, suing will be costly and I do't know if time has run out in terms of my ability to sue him. I live in New York, if that helps. Thanks for listening.

Has anyone in this group experienced a sibling who took ALL the money belonging to their parents but the WILL said it should be shared?

My sister took care of our parents for years. I live in another state. Do you think "I" deserve ANY of that money? NO! She earned it. She gave up all of her future personal benefits, i.e. earnings into social security to care-take our parents. Thank you sister, you're worth your weight in gold.

Helpful Answer (15)

nice to see such a reply.

(7)

I'm sorry, I know this is going to sound really harsh - but your parents had assets to pay for their care, and they chose to put those assets into a Medicaid trust, to 'protect the inheritence". So the taxpayers (that's me, because I also live in NY) pay for the care for your parents, who had the means to do so, and you are going to come and ask how you can legally get your half of that money that they saved by using Medicaid to pay for their care?

I know a Medicaid trust is legal; and I know this is an issue of "don't hate the player, hate the game"...but when you put property into an irrevocable trust and name someone as the trustee, the trustee can also legally empty that trust out with no questions asked. That's the risk you take in order to reap the rewards of legally gaming the system.

Sorry, but I can't feel too sorry for you.

Helpful Answer (14)

From the information provided, we see that the Medicaid trust was set up in 2016 when the parents were on community Medicaid and the only asset in the trust appears to be their home (apartment). OP mentions there being a lot of money, but I still don't see how there could have been if the parents were on community Medicaid as far back as 2016 and the only asset in the trust was the apartment. I do know that co-op apartments in NYC can sell for a lot, but this is not an asset that could/should have been sold if the parents were living there. But having the trust set up I presume protects the apartment from Medicaid estate recovery so proceeds from its sale go to the beneficiaries instead of toward paying back what Medicaid (and the citizens of NY) spent on care.

(4)

If your parents were on Medicaid, there is NOT a LOT of money. Funds had to be spent down on your PARENTS to qualify. Sounds like your brother did all the heavy lifting and now you want a cut. God bless you. I hope this doesn’t ruin your relationship with brother. Why not “ talk” to him before you think lawsuit?

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I had this happen. Get a lawyer right away!! I cannot state that enough. I was told it by my sibling the will was none of my business. It is my business. I was not given answers. Ignored. Just smiled at with a cheshire grin, as they walked away. As they stole items, sold off others. And abandoned other items they said to a court they took care of.
You have a right to know, and to get answers.
I got a lawyer and found out all sorts of things. You have a right to know what is going on. You have a right to answered questions, and to see a list of assets. I was never told anything. My sibling lied to me, to another lawyer, tried to leave me with a huge bill and a nursing home lawyer coming after me. I got that stopped. There is much more. You want to know more contact me.
I cannot state this enough. Get a lawyer right away. I felt guilty as heck, but had to do it. And am glad I did it. There was a lot going on that I didn't know about. And sibling walked off with prob >150k.

I still feel guilty, but then think of everything I didnt know about and wouldnt if I hadnt done it. The lawyers of the firm even said my sibling was a piece of work.
Do not hesitate! And do not feel guilty. They will make him give an accounting to what happened. He cannot decide for himself he gets everything. He gets to pay himself everything, and you get nothing. He has a fiduciary duty to carry out the will as stated.
Stop feeling guilty and do it. There is so much that happened to me, I don't want to go into it here. But I am glad I did it. I had no idea how much my sibling hated me until I found out what was going on.
Get a lawyer!!!!!! Do it now! Do not hesitate. Do not feel bad about it. If you think there is something there, there is!! I had no idea the depths my sibling went to to screw me over. Do it now!!!!

Helpful Answer (10)

I know that many of the responses to your post have been that you should sue your brother. It is not your fault that you live far away and did not have the opportunity to do your share of the caregiving. But it is not your brothers fault that he was close by and had to take care of it all. He should be compensated for doing all of the work and taking on all of the stress.

If we were talking about a huge amount of money (millions) and your brother hired out the caregiving, the tax filing, the managing of everything to someone else, this would be a different conversation. But if she had a Millers trust (Medicaid), then there is hardly any money and you probably owe him money for all of the time spent in dealing with all of this. Trust me, until you have dealt with it, you don't have a clue.

My suggestion is to send him a heart felt thank you note for taking on the nerve racking, life sucking, never ending job of caregiving and let it go.

Helpful Answer (9)

So well put, Jamesj!

If you left the caregiving to your brother— you have no idea what he has endured.

I took care of my parents, often paying additionally all kinds of their expenses out of my own pocket….

Some of my siblings sued me (on a fishing expedition) anyway and lost. They lost more than parents and a sibling, they lost plenty of other family members, plenty of money and what was left (if anything) of their dignity!

if you weren’t there for your parent and your brother, shame on you for coming around for money now!

Disgusting!

(5)

There's no way around it. If you really want to do something about your brother's behavior as the executor of your mother's estate, you would be wise to speak with a probate attorney. Of course, you will want to first find out about the statute of limitations.

There appear to be a few things going on here. His POA is void now that your mother is dead. I'm guessing the Medicaid trust is a Medicaid Asset Protection Trust and that now your mother is dead the assets in the trust are to be distributed to named beneficiaries. You also mention accounts and I take that to mean Pay on Death accounts (bank checking accounts for instance) or Transfer on Death accounts. Your mother would have had to sign a document naming your brother, you, or someone else as beneficiary of a TOD or POD account. If she had any beneficiary accounts that did not name a beneficiary, the asset becomes part of her estate governed by her will. If you haven't seen your mother's last will and testament, you should be able to access it through the probate court in the city/country where she was living.

From your description, you believe your brother has breached his fiduciary duty as your mother's executor and possibly as the trustee of the trust. You can present your case to the court yourself but you'll probably be better off hiring an attorney. At the very least, the attorney can write him a letter to inform him of the laws he may have broken and what remedies you may have.

If you really want to avoid hiring an attorney, you can check to see if the probate court where the will was filed has a mediation program. You and your brother sit with a neutral third-party who gives the two of you a chance to work this out.

Helpful Answer (5)

thanks so much for your speedy reply. Because of the trust, the will does not have to be probated. That was also one of the reasons it was done. There may be one or two TOD accounts with my brother's name on it and I understand that belongs to him. My dad gave me a list of his assets (which are considerable) in 2014 about the time the will was drawn up. There were 2 accounts with my daughters names on the IN TRUST FOR them. They are adults. When my brother was P.O.A I anticipate that he took those too. There were bonds, etc.

My brother, who is a psychologist and I should be able to try to work out our differences ourselves, however I do not know if he is willing to do so. I plan to at least speak with him to tell him how I feel about his actions so I can get it off my chest, (I do like the idea of a mediator but i hope we can work it out ourselves.).My mom only passed a few months ago and this has been an emotional journey for me.

Perhaps I can request in court that the will be probated but I don't want there to be any issues with the selling of the apt so I may even wait until that is done a number of months from now.

When he matter of factly told me he took the money 5 years my husband and I met with an attorney and said he could write a letter to my brother then . I chose not to do so because my parents ere alive, my parents would have been upset plus they could have changed the will . Interesting that my parents always talked about how important family is and this is what he does to me .

At that time my brother said, "so sue me". Once I bring up the money issue at this point I am sure that he will be floored. He probably anticipates that I was just going to let it go. My husband and I are on social security and have small pensions. My brother and his wife have plenty of money. Although we don't have a lot of money my husband says to just not give him any money for minor repairs on the apt. etc and just move on. He sees how this ordeal is affetig me. I can't let it go because what he did is wrong. I don't mind even letting him have a larger share since he was able to do more since he was physically closer to my parents, but e doid nt leave one cent to me. And before all this, we had a decent relationship.

Ty for letting me vent. Any other thoughts would be appreciated I talk to my husband about this everyday. At least he will get a break by visiting our new twin grandbabies in Florida. He hasn't seen them yet.

(1)

I could not give advice unless I knew what the care involved and for how long. I have a greedy sister who does not help in any way with mom, she can't even be nice, but is certainly concerned about getting stuff when mom goes. Was your brother there everyday for years, or was it just an occasional grocery store run?

Helpful Answer (5)

Sadly, there is usually one person who takes on the caretaking role for a reason: their heart demands it or they may just be looking to have all the gold in the end. With the demands of being caretaker, I would say the largest percentage of caretakers did it based on their heart and love of the elder. They aren't there for the money.

With that said, it really doesn't matter who helped and who didn't if there is a will or if there isn't. With a will, certain people will inherit as named. Without a will, all the heirs come into play and everyone gets an equal share ---- if a probate is opened. Sometimes there is very little that passes to probate because of beneficiary designation: Life insurance, for example. Ex: Mom told everyone for years she had a $100K life policy and she listed oldest child as beneficiary and told everyone for years that oldest child should share it with everyone. Mom passes and oldest child is the legal owner of the life policy. There is nothing to require oldest child to divvy it up with any of the siblings. Mom's trust may have been broken, but the law isn't. That life policy won't even be listed in the probate because it was not a 'leftover' of her assets.

I would say, whether or not all the siblings helped - mom loved them all the same. Most parents leave everything to all children equally for that reason.

(2)

Obviously you have to talk to a lawyer. Probate varies in every state. Unless you’re talking way in excess of $2 million, you’re going to end up fighting over a pittance. I suggest mediation if at all possible. I don’t think your brother is “greedy” for expecting to get the lion’s share if he was the one caring for your mother. Showing up for inheritance and not being there for years is the definition of greed.

Helpful Answer (5)

The mother made a decision about how to have her assets distributed. Presumably she signed legal documents to that effect. Probate law is probate law, and from Swansmom's report, the brother has broken the law. Maybe he has, maybe he hasn't. But if he has, he should pay the price for it.

Having said that, I agree that mediation is a good idea. My county's probate court has a no-cost mediation program. Mediation is better than court if family members want a relationship going forward.

(2)

Executer of a will is legally obligated to distribute assets as specified in the will and cannot just "take" the assets. But it sounds as though Mom was on Medicaid so I can't imagine how there would be "a lot of money." Also, no matter what the will says Medicaid is entitled to be repaid after a recipient passes away if there are assets remaining such as a house, which would have been an exempt asset during the recipient's lifetime. You mention a "Medicaid Trust." Is this a Medicaid Asset Protection Trust? This is a type of trust that can be set up at least 5 years before a person expects to go on Medicaid. These trusts have a trustee and named beneficiaries and are exempt from the Medicaid estate recovery program. If you were named as a beneficiary of the trust, brother can't just take the assets of that either. Have you seen the will and the terms of the trust? Anyone named in a will must be allowed to see the will and be notified when it is probated. Brother may be entitled to be paid out of the assets of the trust and the will for his role serving as executor and trustee but he is legally responsible for carrying out the terms of both. It does sound as though he did a lot (most?) of the heavy lifting for your parents in their elder years becasue of his proximity, so it's perhaps understandable he may feel entitled to a larger share--but that doesn't translate to it being legally allowed.

Helpful Answer (4)

Hi. Ty for responding. The will was drawn up in 2014 and I did see it. My parents have an Irrevocable Medicaid Trust from 2016 (My parents were receiving Community Medicaid...they still lived in their cooperative apartment) My brother is the TRUSTEE AND POWER OF ATTORNEY . There will be no probate due to the fact that they have the trust. The ONLY thing that was put in the trust was the cooperative apartment. No money was put in it. I am not completely sure why that was. Either it was recommended by the attorney for easy access to pay for things for my parents or my brother requested (or suggested to my mom) that it not be put in (so that I would not inherit any of it). At one point early on he said that the attorney was going to talk to him about putting my name on the accounts jointly with my brother but he did not do this. I spoke to him for one and one half years about his needing to do this . My mom told him the same in front of me. He did add my name to a new bank account , put over $5,000 in and then took it out inside of a week for some B.S. reason. (I guess he just wanted to appease my mom). According to the trust once the last parent is deceased, the apartment gets transferred to my brother and I. My brother in addition to being a beneficiary is ALSO the Executor. We are selling the apt. I hope that at the closing we both get separate checks. He is behaving civilly so far in terms of my being able to go to the apt to get things that I want nothing valuable monetarily though

I think about this everyday, how despicable his actions have been. We call each other about things regarding the apt and he acts as if he has done no wrong. Talks to me about his plans for the day, etc.

By the way. My mom had 2 full time aides. My brother helped out by paying bills , dealing with the home care agency if there was a problem with getting aides, etc. I offered to help where I could but for the most part he refused. We both live in the same state. I live an hour and one half away (I made an error in my initial question as we DO live in the same state).
He has been pleasant since we have not spoken about money for a few years. Soon it will come up because the apt has to be painted. etc.
My concern is that if I try to sue him (for breach of fiduciary responsibility as a P.O.W) there may be a statute of limitations in terms of when I can do this.

(1)

Swan, Basing your hopes of $ now in 2022 on what $ there in 2014 imo does not work & only keeps you in unhappinesses. I think you’ll find that the folks actually spent down their $ to private pay for care, and/or do co-pays and to deal with their normal costs of living expenses and whatever costs their co-op board mandated. TOD or POD went upon death to whomever was named as beneficiary on those accounts….. if folks had it be your bro in 2014, 2017 or a week before they died, and did not name you, it is what it is.

Regarding their home, so it is a co-op in the Bronx?
If YES, the structure of what co-op’s are in NYS matters big time.

Your brother imo wasn’t being nefarious in what happened w/creating a NY Medicaid Asset Protection Trust involving parents co-op.
If I’m not mistaken, here’s why….. co-ops are beyond unique in how they are NOT an asset considered “real property” for NY Medicaid. So as a co-op is not considered real property, it’s not countable asset. You cannot & do not actually truly own a co-op outright a home or a condo. You have shares and a proprietary lease. Legal structure for coops are a BLANKET MORTGAGE, so single mortgage over entire structure AND coops require involvement and approval of co-op board for a unit to be “sold” which really is a transfer of the proprietary lease. And co-op boards have shown they DNGAF or a rats butt about Medicaid as there is no true asset there for Medicaid.

Co-ops do not get sold per se, like what we traditionally think of the process for selling a home. So again if I’m not mistaken, its because of this uniqueness of the legal structure for co-ops that it’s kinda routine for elders living in a co-op to have their share put into a NYS Medicaid Asset Protection Trust and Income Trust. There’s a bunch of NYC atty who do MAPTs exclusively. The co-op boards encourage folks to get the Medicaid Trust done. Its an irrevocable Trust that enshrines the co-op structure as above pesky interlopers like Medicaid or other debtors and places elders income sources into a Trust. Income Only Trust. There is no look back for community based Medicaid so your parents doing the Trust was a totally legit move to be ok for community Medicaid.

NYS Medicaid Trust / MAPT are not the “keep guv mint from Maws $” type of dubious asset transfers that seem to flourish in other states.
NYS imo ones happen to get beyond the problem having elders truly “at need” for Medicaid services not being able to get Medicaid due to the legal structure of co-ops. NYC has huge #s of elders in coops in all the boroughs. Co-Op City development in the Bronx has 44K residents alone. That the MAPTs endup allowing the unit to be “sold” with $ going to whomever named as beneficiary as per the MAPT and also allows no real worries on capital gains, is a side benefit.

If you decide to get an atty to deal with all this, please ask their level of experience in dealing with MAPTs and co-ops. On your being upset on things needed to be done to parents old unit, the Board may have a very specific list of requirement that must be done before a lease transfer can happen. If the “owners” heirs or family doesn’t do things on the list, the Board can hire someone to paint, clean, remove furnishings. Doing things to piss off the Board not in your or your brothers best interest. Remember the Board has the ultimate decision making ability on the co-op getting “sold” & paperwork gettting done.

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Has anyone in this group experienced a sibling who took ALL the money belonging to their parents but the WILL said it should be shared?

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