Legal Question in Wills and Trusts in Minnesota

Unjust Enrichment

My father died New Years Eve of 2007 at 85 years old. His will states to divide his assets equally among his six children. My brother, who is the executor, found that my youngest brother had been receiving checks of $1500 monthly for ten years, for a total of $180,000. This happened the time my mother was about to die of cancer. We were not aware of this and felt like my father was taken advantage of. My father was not a wealthy man with few assets. He had taken out a second mortgage, also not known to us. We felt like he did this to make payments to my brother. My brother has a job. He also a has a snowmobile, four wheeler, cabin, motorcyle, huge flat screen TV with sound system and hot new car. We thought our father's thinking was okay, but we don't know what to think, now. When he was in the hospital hooked to tubes, my brother brought a bank person in and had my father sign something so that my brother could write checks. We feel our brother received his share in life. Is this unjust enrichment? Must we follow the will?


Asked on 1/25/08, 2:03 pm

1 Answer from Attorneys
David Kelly-952-544-6356 Kelly Law Office

Re: Unjust Enrichment

That's quite a story. It would be interesting to know if your father filed gift tax returns reporting the transfer of the money, or if your younger brother reported the funds as income. It should have been reported as one or the other - gift or income. Tax treatment, however, would not be controlling. Your father's intent is what would be controlling in any kind of a battle in probate court.

I would suggest that the first thing should be for the executor brother to speak with the younger brother about whether he would be willing to accept less than a full share, in light of the funds already received. This problem should be compromised and settled. A battle would just chew up the remaining assets. The money can go to the family or go to the lawyers.

This response is for general information purposes only and does not create an attorney-client relationship. You should consult with the attorney of your choice concerning the details of the case.

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Answered on 1/25/08, 2:32 pm


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