Forced heirship-conflict in a family

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  • #4174

    cast514
    Participant

    Our mother passed earlier this year and there are three heirs. Our parents had updated their will in 2004 from an even 3-way split of their estate to 40-40-20, 20% being left to their daughter that they had been and continued to give monetary assistance to throughout the decades. Per our mother, she told us they decided this to be fair to all of us. This daughter is now 50 years old and was diagnosed w/ bipolar disorder in the mid 2000s. Upon my father’s death in early 2018, she, myself and my sister signed the document stating we are not forced heirs so my mother could then receive the entirety of my father’s estate. She has now decided to go for forced heirship while we are still in the middle of probate, stating she is entitled to an additional 5% of their estate. Our current estate attorney says that we should simply acquiesce to giving her the additional 5%, stating all the cases he has seen has awarded anyone with the bipolar disorder diagnosis as an automatic forced heir. However, the cases I have looked up where this has happened all have one thing in common-those heirs were originally disinherited from their decedent parents. In our case, she has been left 20%. What advice, if any, could be given in our situation in moving forward. The remaining sister and I want to honor our parents’ wishes but also complete this succession in a timely manner.

  • #4175

    Lex
    Keymaster

    Well, in the first place we cannot give “advice” we can only discuss the relevant law in non-specific ways.

    That being said, there are two ways to go here. One, as you already know, is for the two of you to give up 2.5% each of your shares.

    The other thing you might look at is whether your sister got anything outside probate that could be counted towards the forced portion. That might be life insurance, IRAs and thing of that nature that pass outside the Succession.

    The Bi-polar cases were decided the way they were because there was expert testimony that indicated that even if the potential force heir was not disabled now, there was a significant chance they would be disabled “one day.” So, not quite automatic but probably close.

    You can thank the geniuses on our Legislature for throwing in the bit about a forced heir is anyone who, because of an inherited medical condition, might become disabled somewhere down the road. We lawyers warned that this was going to lead to litigation.

    The forced portion is the forced portion and the disinherison aspect of the other Bi-polar cases should be irrelevant.

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