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Your brother has to distribute the money as the Will states and the Trust states. If a large amount of money, he has to probate it. You are to get a copy of the Will. You are to get an accounting too that you sign off on. If you contest it, it stops probate. I wouls first call Probate and see if they have any power to freeze accts. If not, you will need a lawyer. Verbal means nothing especially when a Will is involved. If no Will the State steps in and determines who gets the estate. Brother should have been paid as POA and Caregiver when he had the authority but it had to be written in the POA. A Caregiving contract needed to be drawn up and signed by him and Mom. If Mom wanted him to have her estate, she should have had a new Will drawn up.
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Swansmom12 May 2022
There is an Irrevocable Medicaid Trust and the only asset in it is my parents" apartment in the Bronx. There was not money put into eventhough I know that there were considerable assets AND the will states that my brother and I share it.

My brother helped my parents as he lived in the same town as them and I live one and one half hours way. My parents had 2 full time aides. As Power Of Attorney in New York I know that a rider could have been added giving my brother the ability to "gift" himself money. I am not sure if there was a rider. Obviously he knows that is part of my inheritance . In fact we sat with the attorney when the Will was initially discussed. I glanced at the POA at one point and there was no mention of an amount of $ that he could get as a POA.
There was no caregiver contract because he did not give the physical care. He helped with paying the bills, etc which is why he was put on my parents' accounts initially.

There was also a "Pooled Medicaid Trust" and he was the Trustee for that . I offered to help with that but he did not want me to do so. I was the Successor POA and SUCCESSOR TRUSTEE (of the Irrevocable Medicaid Trust). When my mom supposedly told him to "take the money" she had dementia and my father was depressed. I know that heresay means nothin in court.

TY for you help.
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Executer of a will is legally obligated to distribute assets as specified in the will and cannot just "take" the assets. But it sounds as though Mom was on Medicaid so I can't imagine how there would be "a lot of money." Also, no matter what the will says Medicaid is entitled to be repaid after a recipient passes away if there are assets remaining such as a house, which would have been an exempt asset during the recipient's lifetime. You mention a "Medicaid Trust." Is this a Medicaid Asset Protection Trust? This is a type of trust that can be set up at least 5 years before a person expects to go on Medicaid. These trusts have a trustee and named beneficiaries and are exempt from the Medicaid estate recovery program. If you were named as a beneficiary of the trust, brother can't just take the assets of that either. Have you seen the will and the terms of the trust? Anyone named in a will must be allowed to see the will and be notified when it is probated. Brother may be entitled to be paid out of the assets of the trust and the will for his role serving as executor and trustee but he is legally responsible for carrying out the terms of both. It does sound as though he did a lot (most?) of the heavy lifting for your parents in their elder years becasue of his proximity, so it's perhaps understandable he may feel entitled to a larger share--but that doesn't translate to it being legally allowed.
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Swansmom12 May 2022
Hi. Ty for responding. The will was drawn up in 2014 and I did see it. My parents have an Irrevocable Medicaid Trust from 2016 (My parents were receiving Community Medicaid...they still lived in their cooperative apartment) My brother is the TRUSTEE AND POWER OF ATTORNEY . There will be no probate due to the fact that they have the trust. The ONLY thing that was put in the trust was the cooperative apartment. No money was put in it. I am not completely sure why that was. Either it was recommended by the attorney for easy access to pay for things for my parents or my brother requested (or suggested to my mom) that it not be put in (so that I would not inherit any of it). At one point early on he said that the attorney was going to talk to him about putting my name on the accounts jointly with my brother but he did not do this. I spoke to him for one and one half years about his needing to do this . My mom told him the same in front of me. He did add my name to a new bank account , put over $5,000 in and then took it out inside of a week for some B.S. reason. (I guess he just wanted to appease my mom). According to the trust once the last parent is deceased, the apartment gets transferred to my brother and I. My brother in addition to being a beneficiary is ALSO the Executor. We are selling the apt. I hope that at the closing we both get separate checks. He is behaving civilly so far in terms of my being able to go to the apt to get things that I want nothing valuable monetarily though

I think about this everyday, how despicable his actions have been. We call each other about things regarding the apt and he acts as if he has done no wrong. Talks to me about his plans for the day, etc.

By the way. My mom had 2 full time aides. My brother helped out by paying bills , dealing with the home care agency if there was a problem with getting aides, etc. I offered to help where I could but for the most part he refused. We both live in the same state. I live an hour and one half away (I made an error in my initial question as we DO live in the same state).
He has been pleasant since we have not spoken about money for a few years. Soon it will come up because the apt has to be painted. etc.
My concern is that if I try to sue him (for breach of fiduciary responsibility as a P.O.W) there may be a statute of limitations in terms of when I can do this.
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There's no way around it. If you really want to do something about your brother's behavior as the executor of your mother's estate, you would be wise to speak with a probate attorney. Of course, you will want to first find out about the statute of limitations.

There appear to be a few things going on here. His POA is void now that your mother is dead. I'm guessing the Medicaid trust is a Medicaid Asset Protection Trust and that now your mother is dead the assets in the trust are to be distributed to named beneficiaries. You also mention accounts and I take that to mean Pay on Death accounts (bank checking accounts for instance) or Transfer on Death accounts. Your mother would have had to sign a document naming your brother, you, or someone else as beneficiary of a TOD or POD account. If she had any beneficiary accounts that did not name a beneficiary, the asset becomes part of her estate governed by her will. If you haven't seen your mother's last will and testament, you should be able to access it through the probate court in the city/country where she was living.

From your description, you believe your brother has breached his fiduciary duty as your mother's executor and possibly as the trustee of the trust. You can present your case to the court yourself but you'll probably be better off hiring an attorney. At the very least, the attorney can write him a letter to inform him of the laws he may have broken and what remedies you may have.

If you really want to avoid hiring an attorney, you can check to see if the probate court where the will was filed has a mediation program. You and your brother sit with a neutral third-party who gives the two of you a chance to work this out.
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Swansmom12 May 2022
thanks so much for your speedy reply. Because of the trust, the will does not have to be probated. That was also one of the reasons it was done. There may be one or two TOD accounts with my brother's name on it and I understand that belongs to him. My dad gave me a list of his assets (which are considerable) in 2014 about the time the will was drawn up. There were 2 accounts with my daughters names on the IN TRUST FOR them. They are adults. When my brother was P.O.A I anticipate that he took those too. There were bonds, etc.


My brother, who is a psychologist and I should be able to try to work out our differences ourselves, however I do not know if he is willing to do so. I plan to at least speak with him to tell him how I feel about his actions so I can get it off my chest, (I do like the idea of a mediator but i hope we can work it out ourselves.).My mom only passed a few months ago and this has been an emotional journey for me.

Perhaps I can request in court that the will be probated but I don't want there to be any issues with the selling of the apt so I may even wait until that is done a number of months from now.

When he matter of factly told me he took the money 5 years my husband and I met with an attorney and said he could write a letter to my brother then . I chose not to do so because my parents ere alive, my parents would have been upset plus they could have changed the will . Interesting that my parents always talked about how important family is and this is what he does to me .

At that time my brother said, "so sue me". Once I bring up the money issue at this point I am sure that he will be floored. He probably anticipates that I was just going to let it go. My husband and I are on social security and have small pensions. My brother and his wife have plenty of money. Although we don't have a lot of money my husband says to just not give him any money for minor repairs on the apt. etc and just move on. He sees how this ordeal is affetig me. I can't let it go because what he did is wrong. I don't mind even letting him have a larger share since he was able to do more since he was physically closer to my parents, but e doid nt leave one cent to me. And before all this, we had a decent relationship.

Ty for letting me vent. Any other thoughts would be appreciated I talk to my husband about this everyday. At least he will get a break by visiting our new twin grandbabies in Florida. He hasn't seen them yet.
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