Legal Question in Wills and Trusts in New York
My mom has a will that states that everything she has is to be divided equally between me and my sister, including money from the sale of her condo. My sister has my moms will. My mom is still alive, and 88 years old. My moms condo got sold, and my sister used all the money from the sale of the condo, to put down on a 2 family home for herself, and originally my mom was going to live there with her. My mom doesn't live with her, she lives with me and I take full time care of her, as she can't do anything for herself, anymore. The money from that sale wasn't divided equally between me and sister, as stated in my moms will. I am going to lose my only home, that me and my kids, and mom live in. I told my sister that I need my half of the money from the sale of the condo, to pay off my mortgage, so I don't lose my home, and she tells me "well me and mommy made a deal that whose ever condo sells first(either my moms or hers) the money would go to put down on my sisters home purchase, and that now I will have to wait until her(my sisters) condo sells to get money that should have gone to me" Her condo isn't even up for sale, she is renting it, because she has it at such a high price, no one is buying it. I told her to lower the price, so that I can get my half of the money, and she said "if I lower the sale price, then you won't get any money, at all, because she took a home equity loan out on her condo, too. What does that have to do with me?" So how can I get the money that should have gone to me, from her, so that I don't lose my home? And to top it off she talked to me about how she was looking at some waterfront property for her and her family. Where is she getting money for that, that she can't pay me? She doesn't want to give me the money because the house is under my name and my soon to be ex husbands. What is it her business whose name my house is under? Half of that money is mine, no matter what, right? How do I get it from her? Please help! I am desperate. Is there anything I can do? My moms condo was in New York. I live in New Jerssey , and my sister lives in New York. I"m not sure what state this would go under. I'm guessing New York, since that's where my mom and her condo were.
1 Answer from Attorneys
Since your mom is still alive what she states in her will does not matter whatsoever. The will would only become effective upon her death.
Therefore, you are legally entitled to nothing at this point since your living mother can do as she pleases with her money, including giving some of it to your sister for her home purchase. Speak to your mom and see if she will provide you with money towards your home since she did so for your sister. A gift tax return would be necessary for the money she gave to your sister if it exceeded $12000 if ity was not a loan and your mom's name is not on the home she gave your sister the money for. A gift tax return (not necessarily payment of gift taxes) would also be necessary if she gives you more than $12000.
If your sister took your mom's money from the sale of her condo without her permission or your mom is unable (due to her mental state) to have allowed this to happen there may be an issue of undue influence by your sister against your mom or, if your sister used a durable power of attorney granted by your mom to obtain the money it may be a breach of her fiduciary duty to your mom.
Bottom line, speak to an attorney, preferably one admitted in both NY and NJ, to discuss options if your mom is mentally impaired.
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