Dear Len & Rosie, My 78 year old father died last November. 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 named the executrix of his estate.

My father was married to her for over 20 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 had full blown Alzheimer’s 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 any way to fight this?

Kathy

Dear Kathy,

This whole problem could have been avoided if your father had made his wishes clear in his will. He could have left his estate in a trust for the lifetime benefit of his wife that would pass to his children upon her death. Because your father failed to do this, you have big problems.

There are two ways for you could try to get a portion of your father’s estate. First, you could simply ask your stepmother to give you the money. Unfortunately, since she can no longer make decisions for herself, she cannot give you the money. You could ask her son, who is probably managing her estate with a power of attorney or through a conservatorship. But that won’t work either. He cannot give away his mother’s money without breaching his fiduciary duty.

The other alternative is to challenge your father’s will in court, but it’s very difficult to throw out a will. The court won’t toss out a will because it isn’t what you think your father really wanted. What your father told you doesn’t really count — it’s the words of his will that are important.

To win, you have to get the court to throw out the will. You would have to prove that your father lacked mental capacity when he executed his will, or that he was the victim of undue influence. And even if you win, your step-mother will still inherit one-third of your father’s separate property and all of the community property.

Frankly, your best bet may be to come to some sort of accommodation with your step-mother’s family. If their respect to your father extends to his children, you and your brothers may get your father’s estate after his wife passes away.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, 996-4505, or www.lentillem.com. Len also answers legal questions each weekday, noon to 1 p.m., and Sundays, 4-7 p.m., on KGO Radio 810 AM.