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Law Offices of Ronald W. Rutz
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November 7, 2006: Inheritance Woes

Q: My brother is on the warpath since Mom in her Will left more to me then to him and named me as the Personal Representative. He vented over the telephone and now is threatening to sue me unless I give him half.

A: After all my years of dealing with the public, I have come to agree with the old adage that you do not really know someone until you are involved in settling an estate with that person.

First and foremost, the wishes of your Mother need to be followed. Secondly only a spouse is given the right to defeat a Will and inherit based upon his or her status alone. Your Mom had a right to partially or totally disinherit everyone else including your brother.

Now your brother can certainly sue but that does not mean he stands a reasonable chance of winning, at least in Colorado. Your Mom did leave him a percentage of her estate so he cannot argue that she just had a senior moment and forgot about him or that the lawyer dropped the ball for failure to question her about her intent concerning close relatives.

Fortunately your Mother did not try to explain her reasoning for the percentages in her Will. Thus your brother cannot argue that his percentage was a mistake of fact or that the unequal inheritance was based upon factors that had subsequently been resolved but your Mom just had not had a chance to change her Will. (That is why a person should not try to explain or give background in the Will about the reasons why the Will distributions were made as they were.)

Your brother might attack the Will alleging that you exerted undue influence over your Mother, or that she was incompetent at the time of making the Will, or somehow that you intimidated your Mom. But an experienced lawyer who has a Will client where these grounds might be an issue, will ask any one accompanying the Will client to leave the room. Then the lawyer will question the person to satisfy himself or herself that those grounds would not jeopardize the document that the attorney has been asked to prepare. After all the attorney is representing the person for whom the Will is being prepared and no one else. Assuming the lawyer did his or her job correctly, your brotherŐs chances of success are slim.

Thus what you decide to do is your decision. But remember that even if you wish to transfer something to your brother, at some point you might have gift tax consequences if he receives more than $12,000 from you in any year. Thus do what you wish with out being bullied or intimidated by your brother.

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