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.
am I missing something here?
I don't understand why the will wasn't probated (does having a trust with JUST a coop in it mean that the will doesn't get probated? That doesn't seem right.)
Did you ask your brother for an accounting of the money that he "took" (was this when dad died, or when mom died, more recently?)
I know everyone is saying "get a lawyer and sue". Good eldercare attorneys in NYC cost at least $500 an hour. Have you had a consult with one, explained the situation clearly and perhaps asked her/him to write a letter to brother, asking for an accounting?
Is the coop in the process of being "sold"--or more accurately, transferred? Will you see some financial benefit from that?
It seems, reading between the lines, that mom and dad were on Community Medicaid and had caregivers coming in to the home (this is very common in NYC, where you CAN get 24/7 aide coverage provided by Medicaid). The assets that they had would had to have been limited in order to qualify; either they spent those assets down to qualify or your brother "held" them.
It seems to me that you want an accounting of that money, which as others have pointed out, may not be very much.
I hope that you can speak to your brother and resolve this. We had a poster here a while back who ended up no longer speaking to a brother; if I recall the story correctly, the poster asked her sibling who was the executor of the will for something and he said "I can't do that." It turned out that LEGALLY, he couldn't do what was being requested; she thought he meant that he WOULDN'T do it.
It ended badly. Listen with an open mind and have someone else listen along with you.
As you mentioned, NYS Medicaid has a very high resource allowance & provides a ton of in-home services that other states Medicaid flat do not do. (So lucky you!) For ‘22 resource allowance is $24,600, for ‘20 was $23,100. Guessing in 2016 in $20/21K range. So for her parents to be eligible for Community Medicaid back then they needed their resources to be in 20K range. The Brother - I’ll bet a case of Prosecco - spent down &/or moved their $ into NYS pool (excess income trust) so that the folks could be eligible for Medicaid. The OP mentions there’s something that their income is going into, I bet it’s NYS pool. The pool, if I’m not mistaken, can drawn down $ to use for copays or reinbursement and is a way for excess $ to stay exempt for Medicaid rules and upon death excess stays in the “pool”. By the time 2022 comes around, imo all their $ is gone & used for care or cost of living stuff as that co-op Board is going to have residents pay for maintenance, etc. Whatever $$$ existed in 2014 that her mom spoke with her about has been spent w/maybe $24,600 as a resource maximum left in ‘22. Something was left as Bro is TOD / POD on bank accounts, BUT only he was named beneficiary on them. If it’s TOD / POD, it passes outside of probate. No need for a will to be filed or probate opened….. co-op in the MAPT, bank accts TOD, other $ in state pool.
By her Bro doing a MAPT in ‘16 basically now co-op shares can transfer to her & Bro with zero ability for State / Medicaid to ever attempt any type of estate recovery. They can easy peasy split the $ from co-op “sale” of the shares... no MERP, no haggling, no probate needed. Way fortunate.
NYS is the most generous State when it comes to resources and Medicaid eligibility towards those “at need”. Meanwhile there is someone on this forum that is currently having to find documentation on every spend over $200 for her husband’s Auntie’s Medicaid application in Texas….
Your brother has no right to change your mom’s wishes. Hire a good attorney.
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.
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!
1) Unwillingness to provide a full account of financial dealings as POA or executor.
2) Manipulation regarding refusals of assistance, leading to sole control of affairs.
3) Unlawful dealings with the estate.
4) Fraud regarding ‘mother told me’ without evidence.
5) Informing his psychologist professional / licensing body about planned fraud proceedings.
This might be followed by mediation – it would certainly give a mediator a good start on understanding the issues. However check first – some mediation systems have rules about ‘no legal involvement’.
Think about it. Do something, or forget about it permanently. Don’t just have lifetime resentment.
Consult with an attorney (I'm in NY, too). In fact, consult with several attorneys, because they will most likely give you *free* consults, and every attorney has his or her own way of looking at a situation and planning how to resolve it (I worked in corporate litigation for years).
It is as irrational not to sue your brother as it is for your brother to rob you--obviously, he has a mental deficit believing that he is entitled to something that is not his: that's called theft, or larceny according to law. If you fail to confront someone who has victimized you, you are additionally victimizing yourself.
If the terms of the will are clear, then the suit will be straightforward, providing you are filing suit within the statute of limitations.
CONSULT AN ATTORNEY you feel is smart and TRUSTWORTHY!
Best of luck to you! What life dishes out to us isn't always pleasant. Lots of times I complain and shake my fists; but, ultimately, I do my best to handle the odd situations I inevitably face. I'm with ya! :-)
Why has he gotten his hands on money set aside for the grand kids. That shouldn't happen. And his name shouldn't be on that.
Also, NY info: https://aging.ny.gov/laws-and-regulations
Even with "substatial" assets, I would not expect there to be anything left of their money.
Is the coop being sold?
Have you engaged a lawyer to look at the will and trust documents?
You cannot sue. those accounts are set up to go to a specific party only and is not covered in a will.
If the will said the account would be split and it was transfer on death or it was a joint account he was already on, whatever is said in the will has NO relevance.
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.
You have to decide: Let your brother ignore what was written in will and take everything for himself or do something about it. If you choose to avoid doing something about it, then you have to also make sure to let go of anger toward brother - and carry on a relationship with him as though none of this happened.
If brother was the primary caregiver, you have the option of splitting your share with him to recognize all that he did for parents. You may tell the atty that you are willing to take less than what your share would be in order to thank brother.
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.
Are you a beneficiary under the will? Under the Trust? Your Brother as executor has to notify all beneficiaries within a time frame dictated under the laws of your state.
It is time for you now to have your own Trust and Estate attorney. Wills are public documents. You can access any will. Trusts are NOT public documents, but your Attorney can guide you in the next steps if you are a beneficiary.
I don't know if time has run out, as well. Your attorney will let you know that.
Wishing you the best of luck.
Getting back to the trust, I don't know why the $ was left out of it except for it to be a way for my brother to take it and put it in his name only eventhough the attorney supposedly told him that my name should be on the accounts. AND, my mother said the same. I talked to him for over a year about it and he made no changes other than to put $ into a joint account for him and I so if he was unable to get $ for my parents, I could do it. Inside of a week, he took most of it out giving some B.S. reason.
By the way, I thought that if a trust is made after a will, that the trust supersedes the will. Am I incorrect?
Thank u for your help.
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.
My brother did this to me when an Aunt passed away. Her will stated clearly 50/50. (We were her only heirs.) My brother had POA and kept spending out of her account after she passed away which was illegal. He played super fast and loose with the probate process and was successful. He felt the very same way as your brother - that he deserved all of the inheritance. He had loose lips and some things he said got back to me.
Nevertheless, I did not sue him in the end because it would have caused such a situation with my mother - he was her darling - and in the end there wasn't that much left that he hadn't spent.
I'm certainly not saying that you should not sue your brother. It's a tough pill to swallow either way. Follow your heart and do what's best for you.
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!!!!
As for being paid to take care of Mom, he wasn't doing much if he was managing her finances. That would have taken an hour or so each month to pay bills, if that long. Spending time on the phone with Mom to talk about it doesn't count. Yearly meetings with an accountant and/or lawyer take a few hours if that. As you were already told, this is unpaid unless specified otherwise.
Could brother be deliberately implying that he took money when it was a pittance, because he is annoyed with you? Did he think you should have done more to take care of your parents? Gender biases still run strong in many families, mine included.
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.
He was closer to my dad and if my dad had an issue with one, he cared more about what my dad thought. (One didn't know how to make a certain kind of egg).
Big deal!
I hope that my brother is open to discussion and if I need to sue him I hope that it is not too late. We will see.
I really do not want to spend thousands of dollars dealing with attorneys nor can I afford it.
Her kids are screw ups, her husband died of a heart attack in 2018, and she has been raising her one and only grandchild for most of the grandchild's life. She, mainly by choice, has gone from one job to another in recent years.
5 years later, she sold the one building (worth at the time, less than 20% of the total wealth) for over 8 times the valuation.
Brother, in the meantime, had sold all the other property to pay the balloon payments and whatever expenses he had (he claimed his job was managing his mother's estate.)
Sister is still pissed. However, he is the one who is still living month-to-month.
Don't sue, the lawyers will benefit the most. However, do force your brother to distribute something to you.
Don't think about what you could have had. Just be happy with what you do have or were able to get.
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.
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