Question: My mother’s Burlington County Will directs me to distribute money directly to my brother, who is mentally ill and has a spouse who will squander the funds. What recourse do I have?
As the executor of a Burlington County will, he has a duty to follow through with the terms of the will. Should the brother not wish to cooperate, he has a legal right to have his Burlington County Probate Attorney petition the Surrogates Court to force the executor to turn over to him his inheritance.
However, if the brother is willing and mentally able to cooperate with the executor, there are many available options.
First, the executor should examine his brother’s assets and liabilities and search for a way to use his inheritance in a way that will still protect him. For example, perhaps the brother has a house with a mortgage, and the inheritance can be applied to the mortgage which helps ensure he has a place to live.
Second, with the brother’s cooperation, the executor could draft for him an Irrevocable or Revocable Trust into which the inheritance can be placed. These are very different types of trusts, each with unique advantages and disadvantages. An experienced Probate Attorney would need to spend some time analyzing the specific facts to advise the executor as to which trust would fit the situation best.
Third, the brother might agree that he needs help and allow the executor to Petition to serve as his Custodian. The court will agree if they see that the brother needs help with his assets, but is not incapacitated and in need of a guardian. Again, there are advantages and disadvantages to Custodianship, so an examination of the situation by a Probate Attorney will help guide the executor.
Remember, the executor is able to retain a Probate Attorney to advise them in using estate funds (the cost of which is then deductible from the New Jersey Estate Tax).
As you can see, the best options depend on cooperation.
If anyone has questions about Burlington County Probate, feel free to contact our office for a free consultation. Wills, Trusts and Estates, It’s all we do!