Can my husband sue his brother if he doens’t give him his portion of inheritance left by his father although he’s in prison?

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Can my husband sue his brother if he doens’t give him his portion of inheritance left by his father although he’s in prison?

My husbands is currently in prison. His father passed last year and left and inheritance for his brother and him. He’s tried asking his brother to open an account for him, but he’s yet to do so and has told him ‘it’s his money because it’s in his name’. Although my husband has a letter from his dad, before he passed, stating that he was going to be leaving him some money. How can he go about getting his share since his brother isn’t willingly giving it to him?

Asked on April 4, 2017 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Your husband could sue your brother for his share of the money. Note that your husband would stand to inherit if 1) there was no will, since under "intestate succession," or who inherits what when there is no will, two brothers would equally inherit; or 2) if there was a will naming him as beneficiary. However, IF the assets or money or property was given to his brother by the father before the father died--that is, the father put them "in his name" (the brother's name)--then those things or money belong to the brother: if put in his name prior to the father passing, they became the brother's property. In that case, the brother does not have to share them with your husband, regardless of what that letter says, since he can't be made to give up his own property or assets because someone else wants him to. (It may be possible to challenge the transfers to the brother, however, if you can show that the father was not mentally competent at the time he made them, or the brother coecred or tricked him (fraud) into making them, or the brother forged documents.) 
It would make sense for you to get a power of attorney from your husband authorizing you to act on his behalf in this regard, then to consult in detail about the situation with a probate law attorney, to understand your husband's rights and options.


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