On Jul 21, 1:11 pm, RJ <ss33s...@removeyahoo.com> wrote:
> Mike Jacobs wrote:
> > On Jul 14, 7:43 am, RJ <ss33s...@removeyahoo.com> wrote:
> >> Dad bought a house (Florida) jointly with his future wife.
<snip>
> > How long ago did Dad die? And are you sure
> > the FL house was meant to be included in Dad's Will?
<snip>
> About three years. Yes, the house was specifically mentioned in the
> will. I did not include that part of the will in my post. The will
> states, "The property is jointly titled as tenants by the entirely". In
> my previous post I assumed that was jointly owned.
"Tenants by the entireties" (note spelling) is an old form of joint tenancy with right of survivorship available only to married couples, still recognized in some states. Its legal effect is basically the same as JTWROS as far as your situation is concerned (the main difference being that TBE property cannot be seized or forced into partition by a judgment creditor unless he holds a judgment against _both_ spouses). As I and several others have already mentioned, property owned as JTWROS or TBE does _not_ pass by means of probate of a decedent's Will; rather, title to it automatically, by operation of law, passes to the surviving joint owner, immediately upon the death of the other owner. That means, as soon as Dad died, Stepmom owned the house free and clear of any obligation under Dad's Will to his children, regardless of what Dad's Will says. There are only 2 things I can think of off the top of my head (there may be more, but you're not paying me for this, and I'm doing this for discussion purposes only) that may change this result:
(1) As mentioned in my original reply, if Stepmom's Will is in a form that her state recognizes as a binding joint Will with Dad, or if she had signed some kind of legally enforceable binding contract with him to that effect, she would not be allowed to change her Will to the detriment of the beneficiaries therein, and thus her executor would still be bound, after her death, to pass along to you and your siblings the cash value of the house, but that would be because it was required by the terms of _her_ Will, not directly by Dad's.
(2) If, as you state, Dad and Stepmom purchased the house _before_ they were married, but nevertheless claimed title as TBE, a clever lawyer _may_ be able to argue that such title was ineffective because they were not married yet, thus converting the form of ownership into plain old tenants-in-common, in which case each spouse owned an undivided half interest in the whole house but Stepmom did _not_ automatically gain ownership of the whole thing when Dad died. I have no clue whether this idea might hold water, but you might want to mention it to your independent lawyer (NOT the one who drafted the Will) and see what he thinks.
> > When a Will refers to "the property" it generally means _all_ the
> > things a person owns,
<snip>
> > 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
<snip>
> The will is specific towards that property and includes the address of
> said property
It bears repeating often, since you seem to be ignoring the issue: regardless of what Dad's Will says, the house does _not_ get included in Dad's probate estate as part of the property he owned at death, to be distributed by means of his Will, if in fact Stepmom was a JTWROS or a TBE. In that case the property now belongs to her alone.
> >> It is our intention
>
> > What does this mean, "our"? A Will is usually "my" not "our"
<snip>
> > If your Stepmom ... 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
<snip>
> Our in this case means him and his wife. That is the way it reads. I
> don't know what her will says.
If you don't know what her will says, then we are talking in circles. You need to either find out -- by talking with the lawyer that drafted Dad's will -- or wait until she dies. Specifically, you may want to ask the original lawyer how he planned to accomplish Dad's bequest of the house to you and your siblings given that you understand title to the house passed to Stepmom as TBE. Did they have binding joint Wills, or was there a binding contract to require Stepmom to honor Dad's intention even though she now was sole owner of the house? Have him explain how he intended to accomplish the result that your Dad obviously had in mind.
> >> 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 ... 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.
<snip>
> I only left out the part where he names the heirs and also excludes one
> heir.
What about Stepmom? Are you sure Dad's Will makes no provision whatsoever, for _her_? As mentioned in my original reply, although you are still ignoring that issue, she could challenge it on that grounds if it ever came to probate. My guess is that the reason Dad's will never got probated is that he had no separate property and everything was jointly owned with Stepmom, so she now owns everything.
> > 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).
The fact that specific property gets mentioned in a Will does not mean that the testator promises never to sell it or transfer title to someone else before he dies. If Dad's Will said, "I bequeath my 1971 Oldsmobile to my son" but he had traded the '71 in on a hot new '72 Mercury either before or after writing the will, the bequest fails because Dad no longer owned the specific property mentioned.
> > 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.
>
> I don't know what else they provided for each other in terms of security
> down the road. Yes, this house was specifically by address mentioned
> in the will. I did not include that part of the will. True, sounds
> like a bad idea. She was taken care of in term of health care and
> pensions, etc.
But was she mentioned in the Will as receiving any bequest at all? You still are failing to address that important issue. It sounds like Dad's Will said nothing about Stepmom. In that case, you may have a significant problem in getting all of the bequests fulfilled because Stepmom could disclaim the Will and demand her statutory share, and you would need to discuss that point with the original lawyer too.
> > "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.
>
> Correct. I don't know what was or how it was held. Should there have
> been an accounting?
Not unless the Will was submitted to probate. It would not have been, if everything Dad and Stepmom owned was jointly titled so that she got everything when he died.
Please note that this does not necessarily mean the original lawyer screwed up. If Dad had all his property re-titled jointly _after_ the Will was drawn up, he may unknowingly have disinherited his children by doing so. Lots of people, including you apparently even after being told by several posters here, don't seem to know that this is what happens when property is held by JTWROS: it doesn't matter in that case what the Will says.
> >> 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.
>
> I've shown that the house passes via the will.
No, you haven't. The house only passes by the Will if it was Dad's separate property. What you have shown is that it was JTWROS or TBE property and thus you have affirmatively shown that it does NOT pass via his Will, unless there is some loophole a clever lawyer might discover for you.
> >> 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.
>
> The value of the house was to be divided upon the death of the last of
> them. This can no longer be done, since the asset is gone.
Which, as discussed above, may be the result of something your Dad did AFTER the Will was drafted and which the lawyer had no control or knowledge about. Or maybe not. You're certainly entitled to call the original lawyer and ask. He may or may not be obligated to tell you.
After you talk to the original lawyer, if you're not satisfied with the answers, or even if they do make superficial sense, you may want to pay for the time of another, independent lawyer to give you a second opinion. The second lawyer may tell you yes, everything is Kosher and it's your Dad who screwed up, not the lawyer; or he may find something fishy in the whole setup and offer to go to work for you to investigate further and try to protect your rights. See if you can find a lawyer who would be willing to work without substantial payment up front, either on a percentage contingency, or waiting until you do get an inheritance to take his hourly fee or flat fee out of that money. Be sure you fully understand whatever fee structure is proposed and feel it is fair; you're certainly allowed to negotiate, or to do comparison shopping, BEFORE you sign anything retaining that lawyer to be your advocate in this matter.
Good luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal matter.
For confidential professional advice, consult your own lawyer in a private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
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