We believe my brother borrowed a large amount of money to buy rental property years ago. We have no records. Mom passed away November 2016. Estate has not been settled yet.
More information is needed -- and ultimately, you really need to see a probate lawyer.
First, has anyone petitioned the Court to be appointed as personal representative? If so, has the petition been allowed? Who is the Personal Representative? The PR is the person who has the right to make any demands for repayment on behalf of the estate?
What is the basis of your belief that money was borrowed? How many years ago might that have been? Do you know if your mother ever asked to be repaid? The law presumes that money is given away in the absence of something in writing to the contrary. If you have no written proof and the alleged debt is an old one, you may have an uphill battle.
E. Alexandra "Sasha" Golden is a Massachusetts lawyer. All answers are based on Massachusetts law. All answers are for educational purposes and no attorney-client relationship is formed by providing an answer to a question.
If your mother did not have your brother sign a Promissory Note or something like it, it will be quite difficult to prove that your brother "owes" the estate this money unless her Will (if any) specficially mentions the debt and that your brother will take less of her estate because of said debt. I would strongly recommend visting an experienced estate planning lawyer in your area to discuss the best route for you and the estate.
Unfortunately, if there are no records of the loan, then the only way to "prove" what your brother owes will be to have him admit to the terms of the loan. The personal representative of the estate would also have access to your mother's banking records and could use them to see if any large transfers or cash withdrawals were made, or if your brother received any checks. Whenever there is a large sum of money involved, you should consult with an attorney to make sure the estate is properly seeking all the money it is owed, or that your brother's debt to the estate is counted as basically an advance on any inheritance.
I am a Massachusetts attorney and answer questions based on Massachusetts law. The above answer is for educational purposes only and does not create an attorney client relationship or constitute legal advice.
The personal representative of her estate can request her bank records from the time of the transfer. However, this only will prove that money exchanged hands. You then have to prove that it was a loan and not a gift. Either you need to find something in writing between your mother and your brother evidencing the loan or your brother needs to admit having made a loan.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice. Circular 230 Disclaimer: Any information in this answer may not be used to eliminate or reduce penalties by the IRS or any other governmental agency.
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