Legal Question in Wills and Trusts in California
recently my mother passed and she left a will. in the will she listed any money that was borrowed by her children and must be repaid before receiving an inheritance. one question i have is since 4 of us are listed as beneficiaries can we elect to waive these funds due if all of us agree even though written in the will.
my other question is that one of us recvd money to buy a car which was not listed in the will but was told by my mother this amt is to be ded from the inheritance, can we collect those funds?
and my final question, if that one of the grandchildren also borrowed money for a downpayment on a car and was making payments to my mother, but never pd it off in full. can the balance be ded their inheritance.
Thank you,
Carol
2 Answers from Attorneys
A will or other testamentary document must be in writing. Therefore, your mother's loans, based on oral agreements, to family members prior to her death, are not part of her will. The executor of her will may pursue collection of the debts as a debt owed to your mother and, therefore, her estate. The statute of limitations for oral agreements in California is one year.
An oral agreement is proved by evidence of the agreement and "part performance." The continuing repayments to your mother during her life is evidence of part performance. Now you need someone who heard the two parties to testify that they heard an agreement.
In answer to your question concerning waiving the amounts owed by your mother's children, if all the children agree and they are the sole beneficiaries of the will, then they can waive the repayment in writing. This waiver requires the written agreement of ALL beneficiaries of the will.
It can also be an offset or accounting where there is no actual repayment but a deduction of $x from Share One, a deduction of $y from Share Two and a deduction of $z from Share Three. It may be that you all owe different amounts and this would make it fair.
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