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The Moneyist: My aunt and uncle had no children. My cousin, the executor, changed their will to inherit a $400K estate. Should we pursue this?

Dear Quentin,

My aunt passed away last month at the age of 92. One of her nieces and her husband took it upon themselves to become her main caregivers after my uncle died five and half years ago. My aunt and uncle listed this niece as executor in both of their original wills. 

This niece had access to their finances, and acted as their real-estate agent when my aunt sold her home to move in with this niece after my uncle died.

Our aunt and uncle had no children, and had both drawn up wills in 2003 that listed their 15 nieces and nephews from both sides of their families as heirs: four nieces and nephews on my uncle’s side, and 11 on my aunt’s side.

‘This niece changed my aunt’s will five months after my uncle died.’

Both families never interacted with each other. However, when my uncle began having health issues, this niece became very proactive in being our aunt and uncle’s sole caregiver. She would always decline my offers to help her. Even so, I was able to develop and maintain a friendly relationship with this niece and her husband.

I recently discovered after my aunt’s passing that this niece changed my aunt’s will five months after my uncle died, listing herself as the sole heir in the will she submitted to the probate court.  Our aunt, 87, was under a doctor’s care at the time with developing signs of dementia, and still grieving the loss of her husband of 67 years. 

My aunt and uncle were house rich and cash poor with an estimated net worth of $400,000. My uncle was the main breadwinner throughout their marriage.

‘We concluded that contesting a probated will would be expensive.’

I have spoken to my three cousins on our uncle’s side of the family and also contacted a few estate attorneys. We concluded that contesting a probated will would be expensive, time-consuming, and an emotional strain with no guarantee that we would be successful in court.

Given this, I would like to try writing this niece a heartfelt letter asking her to reflect on her actions when she cut us all out of our aunt’s will, and to reconsider distributing to all of the nieces and nephews in both families as our aunt and uncle’s earlier wills originally intended.

What do you believe is my best course of action?

Disappointed Family Representative

You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell on Twitter.

Dear Disappointed,

I understand why you are torn. She gave more than five years of her life to take care of your aunt. That is to be commended. People sacrifice their personal and professional lives to ensure their loved ones are taken care of, and your cousin’s commitment to their care should be acknowledged.

There are 53 million people who have been unpaid caregivers in the U.S., up from 43.5 million five years earlier, according to the AARP and the National Alliance for Caregiving (NAC). Some 22% of caregivers used up their personal short-term savings, and 12% emptied their long-term savings, they found.

However, as executor of your aunt’s estate she has a fiduciary duty to act in the interests of the beneficiaries and not her own interests — and from what you say, there’s a question mark over your aunt’s legal capacity to change her will, given her deteriorating cognitive abilities. 

An act of service does not cancel out an act of self-dealing. On what date was the will changed? What was your aunt’s mental state at that time? Perhaps she would have wanted this niece to inherit her estate, but there’s no way of knowing for sure if she was not of sound mind.

‘An act of service does not cancel out an act of self-dealing.’

There is a wide range of statutes of limitations on contesting a will, depending on the state where your aunt lived. It’s 120 days from the start of probate in California, and four months in New Jersey. It could cost up to $50,000 or more to contest the will and, yes, it’s time-consuming. 

If she has gone to this much trouble to ensure she is the sole heir of your aunt’s estate, it’s doubtful that a letter imploring her to honor the original will — assuming it was changed under dubious circumstances — will sway her. More likely, she will wait out the statute of limitations.

You and the other nieces and nephews must mull over whether it’s worth challenging the will for $36,000 distributed to each of the 11 prospective beneficiaries — before taxes. It’s also a matter of principle. Do you want your cousin to inherit $400,000 and/or believe she deserves it? 

A trustworthy lawyer should tell you whether or not you have a good case. From what you said, it does not seem insurmountable. However expensive it will be for you to share the costs with your fellow family members, it will be even more costly for your cousin to defend it.

One final — but important — question that may determine whether or not you decide to pursue the $400,000. Was she the only one of the 11 nieces and nephews who had a relationship and regular contact with your aunt? If the answer to that is yes that should give you pause.

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