QUESTION
Can 8 of the children pay themselves back first the money they paid to help our mother with her bills even if it’s not on the Will?
Asked on Dec 31st, 2012 on Estate Planning - California
More details to this question:
My mother's will stated the sale of her house be divided equally to her 9 children. Eight of the children decided to pay themselves back first the money they paid to help her with her bills. Then the money left will be divided to 9 children. This was not stated in will at all to do. Can they do this?
10 ANSWERS
The answer depends on how the house was titled. If it was in your mother's name and the children were named as contingent tenants then it passes to the children without regard to debts. If the house was title in your mother's name, then house is part of your mother's estate and her debts must be paid before any interests pass the heirs. A question would still remain whether the amounts that the children spent for their mother were loans or gifts. Were promissory notes signed? Any other signs that they were loans? Any signs that they were gifts? Also, the estate may have other debts that also need to be paid.
Answered on Jan 08th, 2013 at 5:53 PM
The executor should administer the Estate. Creditors should file a claim with the Executor to be approved and paid.
Answered on Jan 08th, 2013 at 5:52 PM
Shadi Ala'i AlaiShaffer
All children have to agree to this but it sounds like you have to open a probate for mom anyhow since she had only a Will and not a trust. Any claims or expenses can be filed as a creditors claim for them to be paid before the monies are divided between all the children.
Answered on Jan 08th, 2013 at 5:51 PM
Business Planning Attorney serving Livonia, MI
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Frederick & Frederick Attorneys at Law
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Possibly. It depends on when the money was loaned and how. If there was an understanding that it would be repaid, then it would likely be appropriate.
Answered on Jan 08th, 2013 at 5:51 PM
Probate Attorney serving Newport, OR
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Minor, Bandonis & Haggerty P.C.
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No, unless they have signed promissory notes for the amounts they loaned decedent.
Answered on Jan 08th, 2013 at 5:50 PM
2 Awards
Generally they should follow the will, last illness expenses excluded. This is however a tough thing to dispute, especially when 8 out of 9 agree and it would likely cost more to dispute than the amount in dispute.
Answered on Jan 08th, 2013 at 5:50 PM
3 Awards
If money was loaned to the decedent loans and other creditors are paid before beneficiaries receive their inheritance.
Answered on Jan 08th, 2013 at 5:49 PM
Taxation Law Attorney serving Glendale, CA
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Irsfeld, Irsfeld & Younger LLP
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Not without complying with the appropriate procedures. They must file Creditor Claims with the Court. If mom's estate is under $150K and has no real property, so that no probate is taking place, you still can petition for probate, and subject the entire thing to judicial supervision. Or you could simply sue, perhaps in small claims court, for conversion.
Answered on Jan 08th, 2013 at 5:48 PM
Such repayment is only acceptable if all beneficiaries agree to it. Otherwise, the executor who allowed it is in violation of his/her fiduciary duty.
Answered on Jan 08th, 2013 at 5:47 PM
Commercial Contracts Attorney serving Boise, ID
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Peters Law, PLLC
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Unless, there was a document stating that the monies given to the mother were loans, it is probable that a court would interpret them as gifts to the mother and not repayable from the proceeds of the estate. However, unless you are talking a lot of money, it may not be worth the trouble to pursue.
Answered on Jan 08th, 2013 at 5:47 PM