My sister controls our aging mother’s estate and just convinced her to draw up a trust. How can I stop her from ripping us off?

So, how can Maria confirm that everything is on the up-and-up and that the estate plan reflects her mother’s true wishes?

Tips for protecting and preserving an inheritance

The first and most important thing that Maria can do in this situation is to ensure that her mother is being appropriately cared for and that Ellen’s estate is being managed without undue influence and without Sarah enriching herself. That starts with looking out for her mom.

“Don’t fight over the document, protect the relationship,” Jehan Crump-Gibson, estate and business attorney at Great Lakes Legal Group, told Moneywise. “If you genuinely believe she was pressured or isn’t thinking clearly that’s an elder-influence or capacity concern and the smartest move is getting her in front of her own independent attorney.”

Kelsey Simasko, an elder law attorney at Simasko Law, agrees that lawyers have a major role to play here. “Go to the appointment with them,” Simasko said, referring to the appointment where Ellen sets up the trust. “Let the attorney drafting the documents know your concerns. In a case like this, any attorney worth their salt will make sure to speak with Mom alone, outside of any control or influence of other people, assess her competency and proceed accordingly.”

Simasko also explained that if Sarah is trying to create a trust for Mom under a power of attorney arrangement, this will be scrutinized. “If mom is not competent to sign her own trust and your sister is doing it as POA, the attorney will need to see clear evidence that your mom wants assets to be distributed in a manner other than split equally to each child.”

This could include old estate plans with unequal distributions or other proof of Mom’s intentions. “Without this evidence, the attorney is opening themselves up to major liability, and they will need adequate proof to feel comfortable preparing the documents.”

Respecting mom’s wishes is key

Ultimately, both Sarah and Maria should make sure that Ellen has the privacy and opportunity necessary to create a legacy plan that works for her. If either engages in undue influence, the other surviving beneficiaries could contest the trust after death.

If Sarah is controlling Ellen’s assets under a power of attorney designation or because a trust has already been created and she’s a trustee, then Sarah also needs to remember that she has a fiduciary duty. That means she must be loyal to her mother and not enrich herself at Ellen’s expense. If that’s not happening, Maria could pursue a claim for breach of fiduciary duty.

For her part, though, Maria must be aware that her mom is free to do what she’d like with an inheritance that will be left behind. If it turns out that Mom does want Sarah to get more because Sarah has cared for her all those years, Maria will just have to accept that reality.