How do I protect Moms finances without paying a ton to either a lawyer or brother?

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How do I protect Moms finances without paying a ton to either a lawyer or brother?

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My brother tells me that he is going to file a lawsuit against Mom and I.

This is his complaint.

I was the POA for my Dad..he passed in September.
I am the POA for my Mom. She is the executor and sole inheritor.

I have been moving Moms money into various investment accounts. Mostly depositing checks from Insurance and pensions, getting into very safe investments.. I figure that even with low interest...the principal needs to be safe..there will be enough for Mom for the next 10 years.

Brother wants some of that money...he feels he should have been an inheritor. In fact, he thinks I probably influenced my Dad to change his will. (Not so...will was written in 1976).

I did everything to conclude the business of my Dad..on my mother's behalf.

Brother says..he will drain the account just paying for the legal fees...or I can just talk Mom into handing over $40,000 now.

I guess he doesn't have much money....so winning against him might result in a monetary aware for legal bills..I bet he cannot pay. How do I protect Moms finances without paying a ton to either a lawyer or brother?

Elder Law

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Katie, another thought if your brother begins to threaten again. If he did sue your mother, forcing the shock and trauma of having to defend herself, it might be considered emotional abuse of an elder.

Being sued is traumatic; for someone with difficulty speaking, for someone who's old, and for someone being sued by her son, that's a major traumatic event. That would be something to include in responsive pleadings (if he does file suit).

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This is another good reason to put the money in accounts with the WROS designation. Basically...what it means is that Mom already owned those account and needed no will or court to transfer it to her.

My purpose was only to expedite the movement of money for her. As she has great difficulty speaking (stroke) talking on the phone is near impossible. Without time consuming help from someone, she would be unable to make her wishes known.

What we have done is sit for a couple hours each day and write everything down. Oddly, mom can read it clearly...just cannot say the words clearly from off the top of her head. So, she works out what she wants to say by telling me..I enter the words into her 'mini talk"....what words I can get...then we refine it till it says what she wants. Then we go to the bank or broker. Sometimes she will get flustered and still not be able to say it..even reading. But, at least we have it all worked out in advance. And the 'mini talk' will say her words for her if she is stuck. (This device from lingraphica is a great tool!).

My brothers first objection seemed to be that Mom avoided probate to begin with. He didn't like the idea that the court wasn't taking all the financial step..instead I was. Even understanding that mom cannot speak quickly enough to get into the conversation (and people rarely will take the time to wait for her to pull it together), I think he didn't "get" that this was moms money, and avoiding probate was completely legal and made good sense....avoiding the large cost of probate. i guess he believed that probate would have given him some of that money.

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There would have to be some legal basis for stepping in and challenging a will which leaves all assets to a surviving spouse. It could be something like the case of the glamorous but exploitive second wife. It could be some claim of mental incompetence at the time the person made the will. But it can't be just because someone feels they should have inherited something after all. It couldn't even be "Dad always told me he would leave me the house!".

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Iggy, see an attorney and ask how to have a provision comparable to an in terrorem clause added to the Will, since Florida apparently does not recognize this protective measure.

As to your specific questions, you're wise to plan on consulting an attorney, since answers here would most likely be from people who like me might have a legal background, or might otherwise have good experience on which to base their answers.

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In some states that I am aware of, even with a will leaving everything to the wife, the children can challenge it (which makes a good case for setting up trusts so your wishes are not at the mercy of unscrupulous heir wannabe's and the courts). I am not clear about who can be the executor if the named spouse executor is not competent. Can a POA or guardianship allow you to step into the shoes of the named spouse? Anyone have experience with that? I think, as with most of these questions where people who are not legal people provide answers, the best answer is from an attorney experienced in these matters in the state(s) in question, as every state is different. That is going to be my next call, because I am now in that situation, and when I researched Florida law, I discovered that the able-bodied able to work kids can challenge the will and take the money meant to care for the surviving spouse until her death. Talk about the law stepping and undoing your last wishes - geesh! Good luck!

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I would definitely file a complaint with police, but also sit tight until you get sued. Clearly he can't win and you may be able to sue him for your legals costs in the event you have to defend it in court. If he doesn't have much money he's not going to be able to afford the lawsuit and is probably just trying to scare you.

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Katie, thanks for the very helpful (and encouraging) response. I'm glad your attorney set your brother straight and he backed off.

Truly, it is good to read that an unsettling and frightening situation has been resolved by intervention of an attorney. Too often these kinds of situations don't get better, sometimes get worse, or the poster is uncomfortable acting, for whatever reason.

And, I'm also glad that your attorney is co-proxy under the POA; that adds quite a bit of clout that an individual might not have.

If your brother were ever sued by an attorney on your half and on the attorney's behalf as well, your brother would literally be hit by a legal tornado. I've worked on a few legal malpractice suits; attorneys really know how to hit the jugular with they go after another in their field.

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Finally, the only issue was with just the credit union. The bank and brokerage had no issue with WROS. This will prevent that from going into probate when Mom passes.

The credit union would not even consider a POD (pay on death) designation on the account. As there is enough money there to force this into probate...the plan is to move $14,000 into long term CDs in my name...one this year, one next year.....and transfer the rest out. Those CDs will be used over the course of the next couple years to pay Moms bills. The terms at the credit union is just too good to miss... Anywhere else pays poorly AND will charge a fee for withdrawal! Since we know that some funds will be used monthly to pay bills, etc...this is the ideal place for it to come from.

Detail records of the use of this money is already provided to the family attorney monthly.

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All of Moms money are in a series of accounts in her name. Brokerage, CDs, bonds, etc.

Yes, brother was handed a copy of the will. In the first provision, Mom is sole inheritor should she survive him. brother and I are only named in the event Mom pre-decease him.

moms will provides an even split between us. The only exceptions being the family jewelry, which goes to me. As is has passed down through the women of the family only. But..Mom gave it all to me years ago, and I gave it all to my Daughter a couple of years ago.

So, it is clear that my brother just wants some of the money handed to him..now. He might 'get' that the money is going to be spent for Mom, and if she lives as long as her mother...that will be another 12 years. Long time to wait to inherit!

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Ok..sorry to be so long getting back here.

This is the story. Everything was in Moms name. She and Dad held everything I. JT WROS. There is no probate. Mom is the owner, and always was.

My brother is NOT co-POA. The family lawyer is my co-POA.

So...the family lawyer sent a tightly worded letter to brother. The upshot being, he oversees the financial move I am making on behalf of Mom, and agrees with how it is handled. if brother wishes to bring a legal action, he is advised to add the family lawyers name to the suit.

Brother left me a voice mail...backing off in a hurry. Now claiming he never made any accusations or threatened me with legal action. Sorry, he now claims I misunderstood his intent.

Yeah. I didn't misunderstand. But, he did. He lives far enough away so that I don't worry about sudden appearances. Mom is never alone. The home health aides have watched my brother in action...should he show up, they would not leave him alone with Mom nor allow him to dig thru files.

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Put her estate into a trust.

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If dad's will was a legally binding document I don't see there is anything he can actually do.It is Mom's money and she can do as she pleases with it. Brother has not rights in this. Remind him that if Mom needs Medicare in less than five years he would have to cough up the $40000.00 as it would be considered a gift. There is nothing legal he can do to "drain the account" you are the POA. If he steals anything for example getting hold of one of Mom's checks don't hesitate to call the police.Make sure Mom has a properly executed Will herself and of course she can choose to leave brother something but it is her choice. make sure every institution where Mom has money has a copy of the POA and tell them brother has no rights. You can even get a signed and notarized note from them all to this effect.

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Also, Katie, can you answer whether your father's will has finished probate and whether your brother has seen a copy of the will? Is this just a case of "I should have inherited some money from my Dad when he died"? Also, what does your mother's will say about her assets if she dies tomorrow?

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Can someone clarify that Mom is indeed competent mentally, and that all her money is going into accounts with Mom's name on them? Brother could have some reason for suspicion????? Mom inherited all Dad's money and now where is it going????? Maybe there is another side to this dispute to weigh in.

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I have a similar situation with my brother. After dad died almost ten years ago, he thought he could take over mom's finances and help himself to the money. When he found out that I had been named POA several years earlier and he would have to go through me to get to the money, he had a tantrum, sent a nasty letter to mom, made several nasty phone calls to me and then stopped communicating with either of us. He will get half of the estate after mom is gone, but the funny thing is that after ten years, almost six of them in facility care, there won't be much, if anything to inherit. I still worry that he may try to sue me, claiming that I mishandled the funds and there should be money for him to inherit. If that happens, I plan to show the judge the checkbook where all the checks are written to the care facility or to doctors, insurance companies and her credit card. The credit card statements show purchases for depends, toothpaste and denture cleaners. It won't take high level math to figure out where the money went. My attorney told me that my brother will have a hard time finding an attorney to take his case, and judges don't look kindly on non-participating siblings.

The one red flag I see in Katie's situation is that her brother is a co-POA. As such, he is legally able to access accounts, although he is required to use the money for mom's benefit. Of course, if he does get some money and spends it, it would probably be impossible to recover those funds. If mom is still competent, I would strongly consider making you the sole POA.

Giving money to your brother now could create all kinds of problems. What if your mom needs facility care soon and her funds go faster than you expected? If Medicaid becomes necessary, any money given to your brother within the preceding five years will result in a penalty.

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Talk to a good elder law lawyer about an irrevocable trust for your mom, with you as trustee. That will avoid probate without hassle. Do NOT put assets in your name, it could mess up the possibility of getting Medicaid if it becomes necessary, will lead to possible gift tax liability, and would leave you open to your brother's accusations.

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Do you have POA for medical and financial? If you do I really don't think he has a case as long as everything is legit. When my step dad died my half brothers wanted to know where their inheritance is???? Everything goes to the wife. Plus, he only had debt. I asked them if they wanted that :).

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I know of a family that did just that...contested their Aunt's will, and squandered everything intended for the deceased's son and grandson on lawyer's fees. The result was son and his young child inherited nothing; don't know how this family can live with that decision in good conscience. The beneficiaries obviously were the lawyers.

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I'm already cheerleading for that judge!

Katiekate, assuming he has seen a copy of the will, do your best to ignore his craziness, and certainly don't let him provoke *you* into adding fuel to the flames. This is demanding money with menaces, that does amount to blackmail: if you feel you need professional advice then see a policeman or a lawyer, according to preference.

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CM, you're right - good point made. Such an unscrupulous attorney would more than likely also see that he/she can make a lot on feeding off the brother's hostility and desire for revenge, and also would more than likely charge a large retainer up front, to ensure that he/she the attorney gets his/her worth from a loser of a case. Read: exploitation.

That might be just what the brother needs.

There's also the possibility that the judge him/herself may impose penalties for filing a frivolous lawsuit and wasting the court's time. That would be a real slap in the face.

GeeWhiz also makes a good point in forcing him to document his threats.

Seems like we're all more or less "on the same page" in recognizing that Katie has a stronger position than she recognizes.

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Don't bow to the bully-ing. Actually, don't involve yourself at all. If he asks for something, ask him to send an email or letter with the details (this can be used later) Actually, if he doesn't have any money, how would he hire an attorney to file a lawsuit!! Even if he visited one, who would take the case? All threats, I wouldn't sucumb.

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My response in this circumstance is "Go ahead. And I'll sue you to pay our attorney fees." Personally I wouldn't even hire a lawyer. But then, I would also not put things in my name alone to avoid probate. That is begging for trouble when there are other family members.

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There is always an unscrupulous lawyer willing to take on an unscrupulous law suit. They take it without retainer and charge their client 50% or more of any money "won" - their hope being that some type of settlement will be reached to avoid going to court. The client also is responsible for all the costs and filing fees. In the end the client winds up with next to nothing and the lawyer gets a chunk of cash for sending a few threatening letters and blustering.

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CM - there is a risk for everything in life.

No lawsuit has been filed. And until one is, the best she's going to get is a restraining order.

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GA isn't there a risk that an unscrupulous attorney with time on his hands and no better clients to serve might think it worth a shot?

I'm too disgusted to say what I think of this man's behaviour.

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Please. He is a bully who is intimidating you. Call his bluff. Let his calls go to voice mail.

You can't justify the cost of a lawyer? How can you justify NOT getting a lawyer, APS and law enforcement involved?

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KK - you haven't answered my question. Where and how exactly is he threatening you? Does he come to your house? Does he come to your mother's house? And why do you feel you need to answer his telephone calls if he's threatening you by phone? Let him leave threatening voicemails. Then, when he does, use them to get a restraining order.

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His blackmail can be effective only if you allow it to be. I see some points that could benefit from clarification.

If he has nothing but SS, how is he going to pay a retainer for an attorney? The kind of suit he's threatening isn't one which an attorney would handle w/o an upfront retainer as it's not a winnable suit.

People w/o legal background aren't able to easily navigate their way through litigation.

So throw his threats back at him. Don't let him intimidate you.

Not all attorneys charge $350/hour. Do some research and contact them and find one who doesn't. Some only charge about $200 to $250 an hour.

And most competent attorneys utilize paralegals to do the bulk of the work. That cuts the hourly fee significantly.

He may be judgment proof, but you're wrong in stating he can cost your mom several thousand dollars. He has to have money to do this, as I wrote. From what you write, he doesn't have the funds to support a lawsuit.

Call his bluff.

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I'm just curious- what does ur moms will say regarding your brother. I know you have mentioned in other posts that you are putting things in your name in accordance with your mothers wishes to avoid probate when she passes - perhaps your brother is feeling ticked off and threatened by that - which may not be his to begin with - but may explain his actions. Regardless- don't give into a blackmailer- they are greedy and never satisfied- once they know they can scare you into handing over what they want it empowers them and their demands get bigger and more frequent. As you are working with an attorney be 1000% sure everything you're doing is on the level - cause even if you can stop your brother for now - you can be sure he'll be back with bigger threats when your mom passes.

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Also, the family attorney is well aware of what Mom is doing to avoid probate court when she passes. He is the advisor on all that. At my request, Mom included him as joint POA. I have no fear that the setup of JT WROS with Mom is legal and will do the job if there is anything left when she passes. The accounts are set up so that Mom will have everything she needs for at least 10 years (depending on the interest rating we can get) before the last of the money would be gone.

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How do I protect Moms finances without paying a ton to either a lawyer or brother?

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