Legal Question in Wills and Trusts in New York
Mishandling of mother's money
My brother took over my mother's money in 2003 with POA, but in 10/2005 he got my mother to sign POA. In 7/2007 he petitioned the court for guardianship. He lost the guardianship and I got guardianship for her person and have a co-guardian for her finances and property.
My question is: I know my brother was mishandling my mother's money since 2003 by paying his wife to care for my mother when in fact my mother did not want her there, and he took the money from the mother's bank account without my mother's consent or knowledge.
My question is: Now that I am guardian (I am also executor of her Will), can I go to court now and get the money back that my brother took from my mother without her knowledge or consent?
My brother did not prove that my mother was incompetent so my mother was not declared incompetent, but I was award guardianship because she needs someone to help her in many different areas. Or would it be better for my mother to write a new Will out and take the money my brother owes out of his inheritance or would my brother be able to contest that even though that is what my mother wishes.
Is a Will better or a Living Trust?
Thank you for your advise.
1 Answer from Attorneys
Re: Mishandling of mother's money
Your brother's defense is that his wife did provide services to your mother which she should have been compensated for.
I don't think that your mother wants to sue her own son, or have her own son arrested. If you encourage her, your brother would never speak to you again.
The better alternative is to have you mother draw or redraw her will to punish her son for stealing her money. She can make provisions in her will penalizying your brother by disinheriting him, or diminishing his inheritance.
If you are worried that your brother would contest the will, your mother can even it up by distributing the money to you while she is still alive and competent.
get your self a lawyer to draw a tamperproof will right away.
A living will is not used for the purpose of distributing money.
If you have any other questions, contact me.
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