Joint tenancy, rights of survivorship, and Will

On Jun 7, 9:17 am, positivecl...@gmail.com wrote:
> My father died and his wife is still alive.

Sorry to hear about your loss.

> His will states that "for
> purposes of property held jointly with a right of survivorship, I will
> be deemed to have survived my wife to the extent of one-half of the
> property."

You don't say what state's law purportedly applies to interpretation of this
Will, and you don't say where in the Will this language is found (what
context).   My guess is, this is part of the "simultaneous death" clause in
Dad's Will, and only would have applied if he and your stepmom died at the
same time, or so close together that it would be hard to tell who died
first.   In that event, half of their joint property would be distributed
according to the terms set by his Will, and half of it by the terms of her
Will.

Other than that, I've never seen such language before, and doubt it would be
given any legal effect.   A Will is only effective to dispose of property
that was part of a decedent's probate Estate.  But jointly held property,
with a right of survivorship, never becomes part of father's probate estate;
it automatically and immediately becomes the sole property of the surviving
joint owner, upon the death of the first joint owner.   So your father's
Will could not have any effect to deprive your stepmom of the jointly held
property.

> Does this mean that, despite the fact that my Dad died before his
> wife, one-half of the property held jointly before his death (which
> normally would go 100% to his wife upon his death)

100%?  Says who?  Is that what his Will provides?  Then why do you think a
different part of his Will says otherwise?

In most states the surviving widow has a "statutory share" which she may
elect, over the terms of the Will, if that would be more favorable to her
than what the Will provides.   But AFAIK the statutory share is not 100% in
any USA state.   OTOH, Dad's will can, and apparently did, consciously leave
his entire estate to his surviving wife.  That's the only place the 100%
could come from.

Unless you're only talking about the jointly held property, and the effect
of the right of survivorship, which I discussed above.  Yes, as you are
aware, she as surviving joint owner gets 100% of the joint property,
immediately and automatically.   Nothing in Dad's Will can change that.

> is still his, and,
> therefore, distributable to me and my sister (as my Dad's will states
> for distribution of residual estate) upon the death of my Dad's wife,
> despite her will?

OK, are you saying Dad's will leaves the entire residual estate to you and
your sister, and leaves nothing to Stepmom?  In that case, you may be
unpleasantly surprised to learn that not only does Stepmom get 100% of the
non-probated assets that she held jointly with Dad, but also can claim her
statutory share of the probate estate (in many states, 50% of the net estate
after expenses) so that you and your sis will each get 25% or less of the
residuary estate.

Quote us the entire Will and say where this occurred and you may get a more
specific answer from someone.

--
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