How Can I Find a Parent's Living Will and Check for Fraud?

Dealing with family legal matters, especially when health and finances are involved, is incredibly stressful. It sounds like you’re dealing with a double whammy of grieving your mother’s health while suspecting a breach of trust.

To clarify a quick point of legal terminology: a living will actually deals with medical preferences (like end-of-life care), while a last will and testament handles the distribution of assets after death. If you are looking for her financial instructions, you are likely looking for the latter or a living trust.

Here is how you can track down those documents and address your concerns.

1. Where to Look for a Will or Trust

If your sister isn’t sharing the documents, you have several “paper trail” options to explore:

• The county probate court: If your mother has passed away, the will must be filed with the probate court in the county where she lived. Once filed, it becomes a public record that anyone can view.
• The safety deposit box search: Check your mother’s bank. Access usually requires a death certificate or power of attorney, but banks often have records of who has entered the box recently.
• Contact her attorney: If your mother had a long-term family lawyer, they likely have the original or a copy of the “real” will on file. They are obligated to ensure the true intent of their client is followed.
• Search digital and physical files: Look for business cards of estate planners or folders from law firms in her home office.

2. Challenging a Will Made Under Dementia

If your sister had your mother sign a new will while she had dementia, that document may be legally invalid. This is known as a will contest. To win, you generally must prove one of two things:

1. Lack of testamentary capacity: This means your mother did not understand what she was signing, the value of her property, or who her heirs were due to her illness.
2. Undue influence: This occurs when someone (like your sister) uses pressure or manipulation to get a vulnerable person to change their will in the influencer’s favor.

3. Investigating Stolen Money

If you suspect financial elder abuse or theft, you don’t have to wait for probate to end to take action.

• Request an accounting: If your sister was acting as a power of attorney (POA), she has a fiduciary duty to keep records. You can legally demand an accounting of how your mother’s money was spent.
• Review bank statements: Look for unusual withdrawals, large gifts to your sister, or changes in beneficiaries on life insurance and retirement accounts.
• Report elder abuse: If your mother is still alive, you can contact Adult Protective Services (APS). They investigate financial exploitation of the elderly.

Action Plan

Note that proving incapacity or undue influence is a heavy lift legally. You will almost certainly need an attorney to subpoena bank records or medical files that your sister might be hiding.