I found out recently that my mother had a will that was drawn up in 2020. We had no knowledge of this document until my mother and I were going to move and sell the house. She didnt even have a copy, so I found out which attorney did it and got a copy. When my mother found out that my brother and his wife were the executor and I was omitted as her daughter she was devistated.
When we spoke to an attorney, they were hesitant on mom wanting to make changes.
Is that what happened?
There is absolutely no reason for her not to do this if she can appear to be cognitive and competent. Is the attorney who did her old will still around? And different than the 2020 attorney? If so, that’s who I’d schedule an appointment with. Role play with mom on all this ahead of time….. perhaps use as a story that her son was all Covid concerned and did the changes in a rush under the duress of Covid worry and that changing her will was never her intention and she wants the terms in her old will done & that one has you Executor.
That att who did it in 2020 can have a complaint filed against him with the State Bar. Mom - not you - needs to file it and be willing to do this.
If 2020 atty was not given the old will from your brother, and told by your brother that no will existed, he may use that as his rationale for what was done. To me, you want to find that out and in writing….. if at all possible.
So what else did Bro do?
I’d highly suggest that you & mom review all her banking and if anything changed by him then have those changed back. It just might be a good time to get fresh signature cards done by mom on all accounts and make sure that they are all POD pay on death to you IF that is moms wish. And also if she’s ok with this, have you as a signatory on the accounts too. Not co-owner but signatory and POD. As Executor you want POD as that’s $ you can use to deal with funeral, burial, property costs etc after she dies and between when probate gets opened. As signatory, makes it easier if you need to pay her bills, like property taxes. I’d suggest that you actually maybe every other month, sit with mom and you sign her checks to pay her bills. So that you have a definite history of regular involvement with her finances. Plus the bank will have processed checks with your signature, so should mom be come incapacitated it’s not a problem with yours being the signature.
Please remember mom needs to appear competent and cognitive and be also comfortable to answer questions on her own….. like in a bank officers office alone without you being in the office with her. She has to be able to speak on her own behalf & appear competent. If she needs to role play Q&As to be comfortable & confident and needs to go to the Beauty shoppe afternoon before to look her best and go at 9:30 AM to be her perkiest, then do that.
Also give some thought it’s actually SIL who is the 1 behind all this.
Maybe I'm reading into this, but does this mean the attorney is questioning your mom's cognitive capacity to revise or create a new Will?
A certified elder law attorney will interview her privately to assess her ability to comprehend any legal documents she creates. My Aunt, who is 103, gets this interview every time she goes in to amend or create a document. I'm not allowed into the room during this interview.
If your mom didn't remember the Will being made and assigning your brother as the Executor, maybe she has a worsening memory issue?
Also, why are you "devastated" about not being the Executor? That's an admin position. If you have a copy of the Will then you know what's in it and what you inherit. That's the concerning part for most people.
If you're concerned about your brother being manipulative, then I'd encourage your mother to assign you as her DPoA before she is legally unable. She doesn't have to tell your brother anything that she's doing (unless she wants to stir up a poop storm). Make sure you each get an original copy (the notarized kind). Also, no PoA has any legal obligation to "prove" to any other person that they are the legitimate PoA. Others will have to go to an attorney to have them write a letter threatening them with court (and this costs time and money for the curious person).
In what way were you 'omitted' as a daughter?
Here's the thing about legal wills. If the person the will is for has immediate family (heirs) like adult children, they have to be named specifically in the will and in writing it must be declared that they receive nothing. If it's not stated in the will, that person or persons can contest it and they usually win.
So whatever 'Better Call Saul' lawyer your brother and SIL went to, pay him a visit. Then take that nonsense will to a reputable lawyer and see what they think.
That kind of expression is insulting. Please don't use that vernacular again.
Does brother hold POA, if so, he may have thought it gave him the right to make changes, it doesn't. Even if Mom was incompetent, he can not make changes to a Will. It stands as it reads.
I was her only survivor and she died intestate, but the POA was helpful for me for the 5 years she was in residential care.