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Tillem & McNichol

Len Tillem and Rosie McNichol

Dear Len and Rosie,

I have a 91-year-old mother and five siblings.

My oldest brother has borrowed money from my mother on a few occasions and has stated that he has no intention of ever paying her back.

There is no documentation on the loans and as executor of my mother’s will I need to know how to assure this debt is deducted from his share of the estate.

The second issue is the same brother has a judgment against him for back child support.

At the time he went to court for the back child support he put his house and assets in his son from his second wife’s name so now he shows no assets. I believe he is collecting Social Security as well.

If and when our mother passes away how can I assure that his debt to his ex-wife will be repaid or will he try to give his share to his second wife’s children?

Steven

Dear Steven,

When your mother passes and you become executor of her will or the successor trustee of her trust, you’ll have to follow the rules.

You can’t simply deduct money from your brother’s share just to make it fair. A gift made by a parent to a child doesn’t count as an advancement against that child’s inheritance unless there is good evidence that this was your mother’s intention when she made the gift.

And if it’s been more than two years since your brother said he wouldn’t ever pay back the loans, it’s too late to sue him for a breach of contract.

But it’s not too late. If your mother hasn’t lost the ability to make decisions, and if she’s willing, she should see an attorney to update her estate plan and spell out exactly how much money she wants deducted from her oldest son’s share to make up for what she gave him over the years.

Keep in mind that it’s your mother’s choice, not yours.

The only definition of what’s fair that applies here is the one in her mind and in her heart. She may be unwilling to reduce her son’s inheritance.

Some children just need more help than others. Also, if your mother decides to reduce your brother’s share, she should see the attorney alone, without you being there. Otherwise, you may be accused of undue influence and your mother’s updated estate plan may be invalidated.

As for your brother’s child support arrangement, most wills and trusts include a “spendthrift” clause that prohibits beneficiaries from assigning their interest in the trust or estate to anyone else, either voluntarily or involuntarily.

These spendthrift clauses have the effect of protecting a beneficiary’s inheritance from creditor claims.

It seems completely unfair to parents owed child support that a spendthrift clause can prevent them from collecting on a child support claim.

Fortunately, the courts agreed and voided spendthrift clauses against child support claims, and the Legislature also enacted California Probate Code section 15305 to cement the deal.

As long as your brother’s ex-wife properly files a claim against your mother’s probate estate or trust before the money is distributed to your brother, she’ll get paid first out of his share.

Len and Rosie

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at 707-996-4505, or at LenTillem.com. Len has a new video channel on YouTube.

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