You might assume that your will or estate plan ensures that your money will go to your intended heirs. But inheritance theft is an insidious and underreported problem that can cost families dearly. And since inheritance thieves are usually family members, the fallout often is not only about money, but also family ties.
Here is what you need to know about the problem of inheritance theft, and how you can protect yourself and your heirs from inheritance thieves.
What Is Inheritance Theft?
Inheritance theft can take many forms, ranging from manipulating the person’s wishes while they’re still alive, to theft and embezzlement that occurs after the death.
For blended families, this issue is a common problem, even if the estate in question isn’t worth millions. According to John K. Ross IV, an estate planning and elder law attorney based in Texas, “90% of all contested probate cases are between a surviving spouse and the deceased spouse’s children.”
Of course, this is not the only way that someone other than the intended heir can get hold of an inheritance. “It goes from very small to very big,” Ross says. “I can’t tell you how many times I’ve heard that Dad’s watch or Mom’s engagement ring has simply gone ‘missing’ after the funeral.”
But Ross has seen much greater inheritance theft occur. It happens when someone with access to the funds gets sticky fingers: “Inheritance thieves will often rationalize what they are doing by claiming they need a little bit of money out of the funds because of how much they are doing for the estate. But a little money inevitably becomes a lot of money because they don’t realize how deep they are until they have taken hundreds of thousands of dollars.”
While this is, of course, illegal, this kind of inheritance theft often goes unreported and unchallenged because the heir has to use their own funds to pay the legal fees to prove malfeasance.
Forms of Inheritance Hijacking
Even without direct access to funds, unscrupulous family members can use other methods to get a piece of an estate. The following tactics are common when a relative is vulnerable to manipulation:
Family members who borrowed money from a relative might insist that such loans were gifts after the relative’s death. If there is no loan document in place, the heirs have no recourse to get the money back from the borrower on behalf of the estate. The only way to protect an estate from this kind of hijacking is to insist on loan documents whenever a large amount of money changes hands.
Denigration of Fellow Heirs
Rather than focus on the bonds between each other, heirs are sometimes more focused on what they can do to increase their piece of the estate pie. An heir might lie about the other heirs, claiming that one sibling can’t be trusted with money, while another has more than he needs. This kind of denigration can persuade an elderly parent to change their will in favor of the lying heir. Unfortunately, it is difficult for an heir who is being denigrated to protect themselves from this kind of insidious hijacking—in part because the denigrated heir rarely knows it has happened until after it is too late.
Forging or Destroying Documents
In some cases, a family member or advisor might prepare a fake will or a fake amendment to a real will, giving the forger a bigger slice of the inheritance pie. For instance, imagine a parent who leaves most of his estate to a disabled child who cannot take care of herself. If the older sibling of the disabled child were to destroy the will, then the parent would be considered to have died intestate, and the money would be distributed equally between the siblings.
How to Protect Your Heirs
The best method of protecting your wishes is through a well-written estate plan. Such a plan includes a detailed will, a power of attorney, and trusts for your assets. For each of these documents, you will need to consult a well-vetted estate attorney (see below for tips on finding an estate attorney) to make sure your wishes are legally binding.
Here are the particular concerns you will need to consider for each of these documents.
This is the center of your estate plan, and you can make your will as detailed as you like, so that the distribution of your property can follow your exact wishes. You can also change your will anytime you like, and it’s prudent to review it every few years to make sure that everything is still up to date.
One of the important choices you will have to make when drawing up your will is who will act as your executor. This is the person who will handle the logistical details of your estate after your death. Since this person will be managing your assets until they are distributed to your heirs, you must choose someone whom you trust to follow your wishes. An untrustworthy executor is in a position where they could embezzle funds after your death.
Most people name their spouse, a close friend, or family member as their executor. However, it’s possible to hire an executor who will be paid from your estate, and, in fact, lawyers will often perform executor services. If you have an already-contentious family situation, hiring an executor can ensure an unbiased third party is handling your estate after your death.
Financial Power of Attorney
If you were to become mentally or physically incapacitated, you would need someone to act as your power of attorney to make financial decisions on your behalf. As with choosing an executor, you need to trust that this individual will follow your wishes, since a power of attorney has control over your assets.
Without a power of attorney in place, the courts will step in to appoint what’s known as a conservator should you become incapacitated. This process is lengthy and expensive, and you have no choice in whom the court appoints as your conservator, which is why choosing your power of attorney is so important.
In the simplest terms, a trust is a financial agreement among three parties: the grantor, who creates and funds the trust; the beneficiary, who receives the assets from the trust; and the trustee, who has a fiduciary duty to responsibly manage the assets in the trust.
Creating a trust for your assets can be an excellent way to make sure that money is available for beneficiaries unable to handle money on their own—such as minor children. In addition, certain types of trusts can provide a surviving spouse with income during their lifetime, while leaving the assets themselves to additional beneficiaries, such as adult children, after the death of the surviving spouse.
It is vital that you choose a trustee who you know will respect their fiduciary duty, since the trustee has control over the assets in your trust. Requiring two co-trustees and asking for dual signatures on all financial paperwork can help ensure that no one abuses their power as a trustee.
Actions to Protect Your Heirs
In addition to the well-written estate plan and the careful choice of anyone who will be in control of your assets, there are several other actions you can take to protect your heirs from inheritance theft:
1. Appoint two executors to your estate. Make one of your two executors a non-family professional, such as a trust company, a financial planner, or an attorney. This lowers the likelihood that your executor will take advantage of their position.
2. Discuss your estate plan with the entire family. Telling the whole clan—ideally at the same time—what your plans are will make it more difficult for any one family member to try to circumvent your wishes later. Talking about money with family can be sticky, but it can prevent a great deal of resentment and mismatched expectations.
3. Put a disclosure requirement in your will. If your will requires your executor to disclose all details about estate expenses, assets, and financial transfers, it will be more difficult for an untrustworthy executor to hide misappropriation or theft.
How to Protect Yourself From Inheritance Theft
What if you are an heir who fears your inheritance has been stolen or is in danger of being hijacked by someone else? This is a very difficult situation, since it can be both expensive to fight an inheritance thief in the courts and difficult to prove that your inheritance has been hijacked.
According to Valerie Rind, author of the book Gold Diggers and Deadbeat Dads, the first thing you need to do is “consult a lawyer who specializes in trusts and estate work. The attorney who handled your brother’s DUI probably isn’t the best choice.” That’s because an estate attorney will know the specifics to look for in proving your case, and will have plenty of experience in dealing with inheritance shenanigans.
It’s also important to know your rights, says Rind. While the laws vary from state to state, there are certain rights that you can count on as an heir or beneficiary. In particular, as an heir, you have the right to receive information about the will and the estate, if you request it from the executor. If the executor is trying to keep you in the dark, that is a major red flag.
In addition, you also have the right to an accounting of the estate or the trust. The accounting is a detailed report of income, expenses, and distributions from the estate or trust, explains Rind. The accounting should be in writing, and should provide supporting papers such as receipts or cancelled checks. These supporting papers should match the information on the accounting that the executor or trustee provides.
Be Prepared to Spend Money on Legal Fees
The good news is that most estate attorneys will not charge you a fee for your initial consultation. During this meeting, your prospective attorney will ask you questions about your family, financial situation, and goals. The attorney also will let you know how much you can expect to pay for your specific estate plan.
In general, attorneys ask for a flat fee to prepare your estate plan, rather than charging you on an hourly basis. The average flat fee for a relatively simple estate plan is about $1,000-$1,200, although costs can range much higher for larger and more complex estates.
If you are an heir fighting inheritance theft, you will likely have to pay your attorney on an hourly basis, since you will be engaged in an ongoing legal dispute. U.S. law firms’ hourly rates averaged $245 per hour in 2018. The average heir may experience sticker shock when hearing how much they may have to pay to fight for their inheritance.
Legal Fees for a Trust
When a trust is involved, Rind also cautions beleaguered heirs that trusts can cause increased financial headaches, because “the trust itself is a separate ‘person’ and might need its own attorney. The legal fees get paid out of the trust’s assets, so you could wind up spending the money you are fighting over.”
This is why it’s important to determine ahead of time if the fight over your loved one’s money or property will be worth the time, energy, and legal fees you will have to put into it. Legal fees have decimated plenty of estates when heirs fight long court battles over what belongs to whom.
Tips on Finding an Estate Attorney
Whether you are planning your own estate or you are fighting for your inheritance, you may feel overwhelmed when trying to find the right estate attorney for your needs. But according to Ross, you can start this search the way you start any search for a service provider: online.
“Go to your prospective attorney’s website and see what they claim to specialize in,” Ross says. “If the site says ‘estate planning, elder law, and 18-wheeler accidents,’ that’s not the right attorney for you.” Ross recommends finding an attorney who specializes in estate planning.
Questions to Ask Your New Attorney
Once you have requested an initial meeting, there are a few more questions to ask. Specifically, Ross recommends you ask the following before hiring your new lawyer:
Does my specific estate need make up the majority of your practice?
Even within estate law, there is still more specialization, from marital trusts to charitable giving to special needs trusts. The more experience your lawyer has with your specific needs, the better they will be able to help you.
Can you tell me how this could go wrong?
Ross states that many drafting attorneys don’t necessarily think about wills in terms of how families act in reality. If you are writing a will, you want an attorney who is willing to remove the rose-colored glasses. Your attorney should look at ways your heirs or family members could exploit vague language or legal loopholes. If you are fighting inheritance theft, you want your attorney to be up front with you about your likelihood of success.
Do you offer formal updating and maintenance services?
It’s easy to look at estate planning as a one-and-done process, and many attorneys view it that way, as well. But attorneys are starting to offer annual or semiannual check-ins regarding your estate planning, for a nominal fee. With this service, your lawyer will let you know of any changes in the law or estate planning practices. They will ask you if there have been any major changes in your life that affect your estate plan. Finding an attorney who offers this kind of service can protect you from keeping an out-of-date will in place past its usefulness.
Rest in Peace of Mind
Fighting against an inheritance thief is both exhausting and expensive. It will not necessarily bring back the money that was taken. This is why the best defense against inheritance theft is a good offense:
- Prepare a well-written estate plan.
- Appoint multiple individuals as executors, trustees, and powers of attorney as a safeguard against untrustworthy behavior.
- Be open with your entire family about your wishes.
If you do all of these things, you can feel much more secure in the knowledge that your wishes will be carried out after you are gone.
Do you have an aging parent? Are you concerned about your own well-being as you get older?