Dear Penny: Can My Husband Stop His Brother From Stealing His Inheritance?

Dear Penny,

My husband's brother took their mother to his accountant to make sure her mutual funds, stocks and banking accounts were being taken care of and that nobody would be able to extort money from her. She is wealthy. The will stated everything was to be split equally, half and half. 

She has two homes. My husband's brother has taken one of the homes and lets his mother-in-law reside there rent-free. 

Now my husband has discovered that his brother is 100% beneficiary to certain IRAs and insurance claims. Both my husband and his brother were adopted. They don't see eye to eye. Their mother said my husband's brother would never not give my husband his half of his inheritance. They have avoided each other, as we didn't hold family gatherings due to COVID-19. 

Is my husband's brother able to keep him from his half of their inheritance? His brother has made himself the executor of the will and power of attorney, or something. 

I feel they should have gone together to the CPA. My husband won't listen to me. Am I in the wrong? 

-C.

Dear C.,

I'm not sure what you're asking of your husband, or why you think you might be in the wrong. But I can't imagine why your mother-in-law would leave everything to one sibling if she wanted both of her children to split things 50/50. And if your husband is counting on his brother's goodwill to get an inheritance, he's in for a rude awakening.

I'm also a bit confused about what role the accountant played in this situation. Typically, you'd need an attorney to draft legally binding documents, like a will or a trust.

But your mother-in-law isn't required to split everything down the middle. In fact, she doesn't have to leave your husband anything at all. It certainly sounds like your brother-in-law is being sketchy here. But sometimes parents have good reasons for leaving one sibling a greater share of their estate. For example, if one child cared for them in their later years or one sibling has greater needs than the others, a parent may choose not to distribute things evenly.

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It's possible to contest a will during the probate process after someone dies, but this is an uphill battle. Usually, you'd have to prove that the person lacked the mental capacity to make or change their will, or that they signed the will because of fraud or undue influence. You can also argue that the will wasn't properly signed or witnessed in some cases.

I should note that some of the assets you mentioned, like IRAs and life insurance policies, pass through beneficiary designation rather than probate. That means whoever is listed as the beneficiary receives them regardless of what the person's will states.

But disputing a will is a long and expensive process. Most people who mount a challenge will lose.

A better option would be for your husband to talk directly with his mother and brother about his concerns. That means your husband will have to re-establish communication with his brother. They don't have to become best friends, but they will need to be cordial. Sometimes parents avoid discussing estate planning with their children when they know the siblings' relationship is strained.

I think your husband is most likely to be successful if he doesn't approach the conversation from a position of entitlement. This isn't about making sure he gets his half. The discussion should be about making sure they understand their mother's wishes.

Then, your husband can suggest that his mother meet with an experienced attorney to make sure her estate plan is structured in the best way for ensuring that those wishes are carried out. I'm sure an estate planning attorney would tell your husband's mother the pitfalls of leaving everything to one sibling in hopes that they'll split the inheritance with the other. The attorney may also suggest appointing a more neutral party as the executor of the will.

But that will be between your mother-in-law and her attorney. It's important to understand that any attorney's ethical obligation in this situation is to your mother-in-law. Their job isn't to make sure your husband or his brother get the inheritance they think they deserve.

Your husband can try to foster a discussion. He can try to make it as transparent as possible to avoid disputes with his brother. But ultimately, these aren't your husband's decisions. This is your mother-in-law's money, not his. You and your husband will need to live with whatever choices she makes.

Robin Hartill is a certified financial planner and a senior writer at The Penny Hoarder. Send your tricky money questions to [email protected] or chat with her in The Penny Hoarder Community.

This was originally published on The Penny Hoarder, which helps millions of readers worldwide earn and save money by sharing unique job opportunities, personal stories, freebies and more. The Inc. 5000 ranked The Penny Hoarder as the fastest-growing private media company in the U.S. in 2017.

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