What happens when a parent fails to ensure that their estate plan carries out their wishes?

Dear Len & Rosie,

My 78 year old father died last year in Connecticut. His wife, my stepmother, inherited everything under his will, even though Father always said that my brothers and I would get his money when he died. Of course, she is also the executrix of his estate. My father was married to her for over twenty years and cared for her at home until the day he died. When we buried him, her family praised him at the funeral for taking care of her for so long.

The problem is that she has Alzheimer’s Disease and now lives in a rest home. She is entirely incompetent, and could not even recognize my father in the last year of his life. Her son served as my father’s executor, because of her disability. She is actually very wealthy, and does not need the money given to her by my father. She owns two houses, a vacation home, and a six figure brokerage account. I have seen her will, and she gives nothing to me or my brothers. Our inheritance has been thrown away to a woman who can’t use it and doesn’t even know she has it. Is there anyway to fight this?

Kathy

Dear Kathy,

Under normal circumstances, there are two ways for you could get a portion of your fathers’s estate. First, you could simply ask your stepmother to give you the money. Since she can no longer make competent decisions for herself, she cannot give away her inheritance. Her son is probably managing her estate, either as an agent appointed by a power of attorney or as a conservator appointed by the court. In either event, the person managing her finances cannot just give you the money without breaching his fiduciary duty to your step-mother. His job is to protect your step-mother’s estate. Clearly, you are not going to get any money that way.

Your second alternative is to challenge your father’s will in court. The deadline for filing a will contest in Connecticut, where your father lived, is normally thirty days after the probate court accepts a will as the actual last will and testament of the decedent. If your father’s executor was on the ball, probate of your father’s estate is well underway and that deadline has passed, but since we do not practice law in Connecticut, you may want to discuss this with an attorney over there.

Even if you could still file a will contest, you would have to discredit your father’s will by proving that he did not have the capacity to make a will or was subject to undue influence when he signed it. This is a longshot at best. Your description of your father providing care to his wife doesn’t lend itself to a conclusion that he didn’t know what he was doing. And even if you do get the court to throw out your father’s will, your step-mother will still inherit much of your father’s estate through intestate succession and spousal election.

Your problems exist because your father failed to ensure that his estate plan carried out his wishes. Maybe it was his lawyer’s fault. Maybe your father assumed that his wife would die first and you would inherit his estate. We are sorry that we do not have a solution for you. This as a cautionary tale. In any blended family with children from prior marriages, leaving everything outright to a surviving spouse isn’t such a good idea. Your father could have left his estate in a trust for his wife’s benefit that would pay out to his own children upon her death. He did not do so, and that may result in you inheriting nothing at all.

Len & Rosie