Son left out of father’s will; should sibling share?

Meg Green
Meg Green

The dilemma: Sadly, my father recently died of a massive heart attack at the age of 58. My parents got divorced 10 years ago, and although my brother and I lived with our mother, Dad was very much in my picture. My brother, who is seven years younger than me, was angry and refused my father’s love and care. He was a teenager at the time and took little to no responsibility for anything. They were disaster years in our family, but I always stayed close to Dad and he always tried to do the right thing.

I’m now 31, married with three kids, who my father adored, and we struggle to make do. My brother is 24, dropped out of school and is living at my mother’s “finding himself.” She feels guilty for the divorce and pampers him excessively. It’s stressful all around. We stay away and don’t expose our children to this unhealthy situation. Granma can come to us and does, just not too often. I wanted you to have that information.

Now here’s the dilemma. My father’s will, written very soon after their divorce, leaves everything to me, unconditionally. It specifically leaves nothing to my brother. Dad took the hard line my mother couldn’t, or wouldn’t, and so they didn’t speak all these years. My husband became his “son.” Still, my mother and brother think I should split everything in half, and give my brother his “share.”

I understand that from a legal point of view there is no automatic claim for inheritance, like there would be for a wife. But I’m fearful they’ll sue anyway. My mother has a keen interest, as does my brother, since he’s living there and owes her. She had an insurance policy on my father that will pay her, by the way.

Besides his condo, worth about $500,000 with no mortgage, he’s left a retirement account of $330,000 with just me as beneficiary and another $400,000 in his brokerage account which he inherited from his parents. Please tell me what you would do.

Meg’s solution: My condolences on the loss of your father. The drama, as your mother sides with your brother against you, ignoring your father’s wishes, is unfair, but not surprising. Money and families don’t always agree. Realistically, people can sue for whatever they want, and there may be an attorney who will take the case on contingency. They assume you’re probably going to settle somehow to make it go away, and you might. But let’s try to preempt the suit and save the family, if possible. Here are my thoughts, remembering I’m not a lawyer.

First, because your brother wasn’t named, I don’t believe he’s entitled to see everything your father had. The retirement plan passes outside of his will and outside of probate, and your father would have had ample opportunities to change the beneficiary designations should he have wanted to include your brother. I’d transfer it to an IRA rollover now, and get a great head start on your retirement savings. A death certificate, identification and an account opened to roll it into, and you’re done. I wish the rest was as easy.

Between the home and inheritance, there’s approximately $900,000 that will go through probate court, where matters like these are decided. You’ll need a good probate attorney to take you through this, so start looking.

After you sell your father’s home, pay final expenses, legal and accounting fees, you’ll end up with about $800,000 or more. Although it’s not your legal obligation, you may want to offer him a small gift to keep peace in the family, small being the operative word. Decide on a number, maybe $25,000 or $50,000, more if you’re feeling generous, and if he accepts it, have him sign a release that he’s done. He very well could prefer a gift now instead of starting expensive, lengthy litigation, especially with the law on your side. A bird in the hand.

Invite him go through your father’s things with you for mementos, and offer some furniture so he can go out on his own. He’ll now have rent money, if he wants that. Your brother is surely hurting in some ways. You can’t fix him but you can help a little.

If he doesn’t accept it, then withdraw your offer. You don’t need to negotiate with him. It’s kind of you to offer anything. For another “opinion,” look over your shoulder. Your father is watching. What would he want you to do?

Got a dilemma? Email Meg Green, CFP, is a wealth manager with offices in Aventura. Her Money Dilemmas column runs monthly in the Miami Herald.