Here at the AgingOptions blog, we’re a bit cautious about sharing the words of financial advice columnists. Too often these so-called journalists have a product or service to sell, and they’ve paid for the privilege of inserting an opinion piece under the guise of “financial news.” But this particular advice column from MarketWatch raised a legal and family issue that really resonated with us.

The real question raised in this letter to MarketWatch columnist Quentin Fottrell, who calls himself The Moneyist, is “Do the rights of a caregiver allow her to change an elderly person’s will to make herself the sole heir?” The answer is more complex that it might seem.

Niece Changes the Will – and her Cousins Get Nothing

“Dear Quentin,” this woman writes: “My aunt passed away last month at the age of 92. One of her nieces and her husband took it upon themselves to become her main caregivers after my uncle died five and half years ago. My aunt and uncle listed this niece as executor in both of their original wills.”

As the story unfolds, this caregiver/niece had access to the aging aunt’s finances, presumably through a financial power of attorney. When the elderly lady’s husband died, this niece acted as her aunt’s real-estate agent, helping the lady sell her home to move in with the niece. The aging couple had no children of their own, but there were a total of 15 assorted nieces and nephews, each of whom (under the terms of wills drafted in 2003 and presumably revoked when the new will was drafted) was to receive an equal share of the estate after both the aunt and uncle had died.

The Will Was Changed 5 Months After the Uncle’s Death

The letter describes a situation that’s probably not uncommon among families who don’t communicate. The various relatives didn’t interact with each other very much. Nevertheless, the letter-writer tells Fottrell, “when my uncle began having health issues, this niece became very proactive in being our aunt and uncle’s sole caregiver.” Although the cousins were apparently on friendly terms, any offers to help with the aging aunt’s care were politely declined.

But things took an unexpected turn, according to the column. After the aunt passed away, the family learned that the caregiver/niece had changed her aunt’s will five years before, just months after the older lady had been widowed. In the will submitted to probate, the caregiver/niece had listed herself as the sole heir, due to inherit an estate worth an estimated $400,000, most of which had come from the sale of the aunt’s home.

“Our aunt, 87 [when the will was changed], was under a doctor’s care at the time with developing signs of dementia, and still grieving the loss of her husband of 67 years,” the upset cousin writes. Now the family is faced with a decision whether or not to contest the will.

She and her cousins recognize that contesting a probated will is expensive, time-consuming, and emotionally draining. What’s more, chances of success in court are highly uncertain. The lady has written to ask MarketWatch’s Quentin Fottrell for his suggestions. Can the empty-handed cousins prevail in court? Can the caregiver/niece be persuaded to relent? Or should the family just drop it?

Caregiver/Niece Gave Five Years Toward the Aunt’s Care

“Dear Disappointed,” Fottrell responds: “I understand why you are torn. [The caregiving cousin] gave more than five years of her life to take care of your aunt. That is to be commended. People sacrifice their personal and professional lives to ensure their loved ones are taken care of, and your cousin’s commitment to their care should be acknowledged.” As Fottrell observes, there are presently over 53 million unpaid caregivers in the U.S., many of whom have sacrificed personal short-term savings (22 percent) or long-term savings (12 percent) in the process of providing care.

But, says Fottrell, this situation is somewhat clouded. “As executor of your aunt’s estate,” he writes, “she has a fiduciary duty to act in the interests of the beneficiaries and not her own interests — and from what you say, there’s a question mark over your aunt’s legal capacity to change her will, given her deteriorating cognitive abilities.”  As Fottrell writes, “an act of service does not cancel out an act of self-dealing.”

An attorney would need to gauge the aunt’s mental state at that time the will was changed. “Perhaps she would have wanted this niece to inherit her estate,” says Fottrell, “but there’s no way of knowing for sure if she was not of sound mind.”

Statute of Limitations Leaves Little Time for a Fight

According to Fottrell, time is not on the side of the family members who feel left out. “There is a wide range of statutes of limitations on contesting a will, depending on the state where your aunt lived,” he writes. “It’s 120 days from the start of probate in California, and four months in New Jersey.” Then there’s the projected cost: up to $50,000 or more to contest the will, “and, yes, it’s time-consuming,” he warns. 

As for writing a heartfelt letter asking the caregiver/niece to reconsider, Fottrell has little faith that it would work. “If she has gone to this much trouble to ensure she is the sole heir of your aunt’s estate, it’s doubtful that a letter imploring her to honor the original will — assuming it was changed under dubious circumstances — will sway her,” he writes. “More likely, she will [simply] wait out the statute of limitations.”

Family Members Have to Decide if the Fight is Worth the Cost

“A trustworthy lawyer should tell you whether or not you have a good case,” Fottrell concludes. “From what you said, it does not seem insurmountable.”  However, “you and the other nieces and nephews must mull over whether it’s worth challenging the will for $36,000 distributed to each of the 11 prospective beneficiaries — before taxes.”

He leaves one big question hanging: is it possible, in a way, that the caregiver/niece deserves the full inheritance? “Was she the only one of the 11 nieces and nephews who had a relationship and regular contact with your aunt?” he writes. “If the answer to that is yes that should give you pause.”

This case absolutely points out the critical need for communication among family members to be part of your retirement planning. That’s another reason why every retiree needs a LifePlan from AgingOptions.

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(originally reported at www.marketwatch.com)