On Jul 14, 7:43 am, RJ <ss33s...@removeyahoo.com> wrote:
> Dad bought a house (Florida) jointly with his future wife. They got
> married then he filed a will that specifically stated that this property
> was to be split among the heirs when the last party died.
When did all this happen? How long ago did Dad die? And are you sure the FL house was meant to be included in Dad's Will? If it was in fact jointly owned with right of survivorship (do you really know this, or are you assuming?), then sole title to the house automatically passed to his wife after Dad died; it did not pass through probate or form any part of his estate.
When a Will refers to "the property" it generally means _all_ the things a person owns, realty and personalty both, and does not refer to a specific piece of realty unless that word is defined as such somewhere in the Will. Moreover, a Will is only effective as to property that forms part of the probate estate, and has no effect on property that passes outside of probate, such as jointly owned property, including houses, joint bank accounts, etc.
> text of will:
I am assuming this is an excerpt and not the entire Will.
> It is our intention
What does this mean, "our"? A Will is usually "my" not "our" intention since it is the intention of just one person (unless the testator is Queen Victoria: "We are not amused"). If your Stepmom (I assume this is not your own mother you are talking about) and Dad had a mutually binding contract to draft identical Wills, or a single joint Will, then that may be different. But your post didn't say anything about Stepmom's will, and I assume she is still alive so that would be premature anyway.
> that upon the death of
> the last of us, the property is to be sold and the proceeds divided
> equally between our two families.
Again I'm assuming "the property" means everything they own. You haven't provided a definition clause in the Will that says otherwise.
> I give and devise all of the rest. residue, and remainder of my estate,
> real, personal, and mixed, tangible and intangible, of whatsoever nature
> and wherever situated, to my children
If that is the _only_ bequest in Dad's will (I notice you used an ellipsis between the preceding 2 paragraphs indicating something was left out) then it may improperly deprive Stepmom of her minimum statutory share as Dad's widow. She may be able to challenge the will, if it ever came to probate, and insist upon her statutory share. Actually, if Dad's will provides that "the property" gets divided between _both_ families, this clause seems inconsistent with that intention. What gives? What did you leave out?
> It also is my intent that assets with a named beneficiary pass to the
> named beneficiary by operation of law and be affected by this will only
> to the extent my estate or any trust hereunder is named as beneficiary
> or the asset would pass to my estate or any trust hereunder because of
> the provisions of any agreement controlling the disposition of the asset.
That's typical boilerplate and just shows that testator (Dad) is aware of the legalities noted above, i.e. that some kinds of property don't pass thru probate.
> end.
Huh? Is that your way of indicating the end of the quoted text, or does the will end that way, with the word "end"? Why not just use quotation marks? But I digress.
> Dad then passed away and his wife continued to live there. No problems
> so far until I found out that his wife moved out and sold the property.
Even if your interpretation is correct, doesn't Dad's Will provide that the property is _supposed_ to be sold, so its value can be divided?
But I doubt very much that either Dad or Stepmom intended to bind themselves to never sell that particular house until after both of them died; what if it got destroyed in a hurricane or flood, frex, and they wanted to move someplace safer? Or it got eaten by termites? Or what if Stepmom had to move into a nursing home after Dad died and needed the money for he care? Or (pick your favorite reason). Since it was going to be sold anyway, all that matters is that its value is preserved. Which is why I doubt "the property" in your quoted text was intended to refer to that specific piece of land. If it did, that would IMO be a very poor decision by your Dad and Stepmom since no one can predict what might happen down the road. Their first concern should have been to make sure each other was taken care of, and only after that should they worry about dividing what is left between the 2 families.
> The will does not as far as I can tell specifically disallow her from
> selling the property although not Dad's true intention.
Why would he want to bind her to that kind of commitment to a particular home? It's not like it was the ancestral mansion and fields of a landed aristocrat or something. BTW, was this their _only_ house, or just a vacation property? Where does Stepmom live now that she sold it?
> It's probably
> pointless to add that I have seen not one dime from his estate.
You haven't given us any facts yet to indicate you were entitled to receive anything yet. If I read you right, you and your siblings (or their children, if a sibling predeceases your Stepmom) are supposed to get half of what is left over after Stepmom dies, and her descendants are supposed to get the other half. Which means you don't get anything until she dies too, which could take quite a while. How old is she? In any case, don't hold your breath.
> There
> was no formal will execution
I assume you mean "probate" instead of "execution". "Execution" of a Will occurs when the testator signs it in front of the necessary witnesses. "Probate" occurs when the Will is submitted to the authorities for appointment of an Executor (maybe that's where the confusion arises) as they are called in some states, empowerment of the Executor to collect all the decedent's assets, pay his debts, and propose a distribution in accord with his Will, and approval by the authorities of the proposed distribution. None of that is necessary if everything was jointly held so there is no solely-owned property that passes by means of the Will.
> and I have no clue as to what his assets
> were.
Then I repeat, you have shown no facts to indicate anything at all even had to pass by means of Dad's Will. Maybe he had _no_ separate assets, which would not be at all unusual. That would mean that title to everything automatically passed to Stepmom when Dad died so it was not necessary to submit anything to probate.
> What, if anything, can I do to receive what Dad had intended to
> provide?
What do you claim he intended to provide at this time, as opposed to after Stepmom dies sometime in the future? How do you know this, and/or what is the basis of your assumption?
> It's obvious what his intentions were.
Not to me. You have left major gaps in the facts you provided so IMO it is impossible to tell from that alone what his actual intentions were.
> If the will does not
> stand on it's own then what was the point of writing it?
Well, generally a Will _does_ stand on its own, but in the case of a jointly executed will between spouses, it may be necessary to read it in conjunction with Stepmom's will, and/or any specific written contracts between Dad and Stepmom entered at the time they both wrote their Wills.
> Does the
> lawyer that wrote this document have any liability here?
He might, if he screwed something up, but nothing so far in your post convinces me he did so.
I assume by your asking this question that you know who this lawyer is. Have you tried calling to talk to him to get an answer to your concerns? The worst that could happen is he would tell you he's not allowed to tell you anything, and then you would have to consult an independent lawyer on your own to find out. Which is not a bad idea anyway, if you suspect this lawyer may be in cahoots with Stepmom in some way (not that you have given us any reason to believe that yet).
The bottom line is, an inheritance is NOT a right, it is a gift, and one which is often made to adult children contingent on first making sure that all the needs of the primary focus of decedent's affection, usually a surviving spouse, are completely taken care of. You and your siblings are (presumably) adults and do not need this money to pay for your continued support and education as would be expected if you were still minors when Dad died; but Stepmom is (again, presumably) elderly and may well need such support far more than you do. That is typically what most testators would want, and is the reason most states' laws provide for an unalienable spouse's share of an estate even if a Will purports to disinherit her. So, consult a local lawyer and show him or her the ENTIRE Will, and any other pertinent papers you are aware of (such as Stepmom's Will and any contracts between Dad and Stepmom) if you still have concerns, but don't be surprised if the answer is that you get nothing until Stepmom dies and then you and your siblings get half of what's left over, if anything.
Personally, it wouldn't surprise me if Stepmom is going to get one of those bumper stickers that say, "I'm spending my children's inheritance." Which is her absolute right to do, if in fact the property belongs to her. Try to avoid being the greedy heir-apparent and you may even find you have a family of new relatives that you might like. Just a thought.
--
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Mike Jacobs
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