LawyerGuys - question on wills and estate distribution (1 Viewer)

[Ted Lange as your Bartender]

Buddy of mine is in a pickle and I’m not sure what to tell him.  Was hoping to get some legal opinions here.

- His father has stage 4 liver cancer, probably has about a year to live.

- He and his sister (both adult age) are fighting with his second wife (their step-mother) over who would get his assets when he passes.  She claims she should get everything and doesn’t want to give them anything.  Note too that while still married, they’ve been living in separate houses in separate states for 6 years now (long story).

- As far as I can tell, the father has no will at this point.

- I have no idea what the size of the estate is, I know they own two houses but no idea beyond that.

Questions:

- is it too late for him to still draw up a will to provide the kids with at least some of the estate?

- would the wife still have to co-sign on said will or could he draft it up and get it witnessed/probated himself?

- is there any other legal recourse they have that I’m not thinking of?

TIA - I know they are consulting with a lawyer but I was curious as to their options.

 

[whoknew]

This is heavily state specific and I'm not a trust and estates lawyer - but I'll give you what I think the law is. And if I'm wrong, someone can correct it.

1) Its not too late for him to draw up a will. He just has to follow the laws of the state (either witnessed or holographic)

2) I don't think the wife would have to co-sign. I don't see why she would. 

3) If he dies intestate (without a will) the estate will probably be split between the wife and the kids. Like 50% to the kids (as a group) and 50% to the wife. But that will, obviously, be a big fight. 

And even if the dad draws up a will, he can obviously only give whatever he owns - his interest. So if the state he is in has community property or he owns property as tenants-in-common or something - that will affect what he can give away.

I hope that makes sense. And again - this is just off the cuff from someone who knows little to nothing about trusts and estates. Its not good legal advice. I highly recommend consulting a lawyer where the dad lives. 

 

[eoMMan]

Not a lawyer but yeah, if he's of sound mind, write that will up ASAP.

I wouldn't think he'd want her getting 100% of his estate being that he lives in a separate house states away, right? 

Has he said anything about he wants everything distributed?

 

[Chemical X]

i am not an attorney and my knowledge is limited to what i learned after my mom passed.  i am 99.9% positive passing without a will follows state distribution rules.  i don’t think any state has a 100% goes here type formula, it’s usually spouse partner, kids, extended family in some type of formula.  talk to him alone and lock that #### down before gold digger gets any.  

 

[apalmer]

As everyone has said, intestate distribution is state specific, so there's no way to give you a "correct" answer. Typically, there is a percentage distribution set up for situations where the surviving spouse is not the parent of the surviving children (anywhere from 30-50% to spouse is common).  There may also be a "guaranteed portion" to a spouse. In PA, it's an option to "Take against the will", giving the spouse a statutory portion instead of the share allocated in the will (i.e., leaving $1 to the wife would result in her making an election in the probate proceeding to take against the will and get her statutory share instead). However, it's NEVER too late to do a will--I've done them while the Testator was literally on his death bed. However, in those circumstances, you need to make sure that competency and understanding can be established to prepare for any future challenges to the will. I would not recommend he do it himself (or, obviously, with the help of his children). Get an attorney, make sure he/she understands the situation and let them do it in a way that can stand up to scrutiny later (including private discussions where the children/wife are not present).  Will preparation (even in this type of situation) is cheap.  Spouses NEVER have to co-sign a will (unless there is some kind of pre-nup that requires consent and state law allows such restrictions in pre-nups).  The other obvious choice would be for him to divest--give everything to the kids now. However, that would generally be easier to challenge as resulting from "undue influence" than would a will prepared by an attorney, and could cause serious complications with Medicaid benefits father may otherwise be entitled to. 

TLDR answer: Son should get Dad to call an attorney NOW.

 

[AAABatteries]

Buddy of mine is in a pickle and I’m not sure what to tell him.  Was hoping to get some legal opinions here.

- His father has stage 4 liver cancer, probably has about a year to live.

- He and his sister (both adult age) are fighting with his second wife (their step-mother) over who would get his assets when he passes.  She claims she should get everything and doesn’t want to give them anything.  Note too that while still married, they’ve been living in separate houses in separate states for 6 years now (long story).

- As far as I can tell, the father has no will at this point.

- I have no idea what the size of the estate is, I know they own two houses but no idea beyond that.

Questions:

- is it too late for him to still draw up a will to provide the kids with at least some of the estate?

- would the wife still have to co-sign on said will or could he draft it up and get it witnessed/probated himself?

- is there any other legal recourse they have that I’m not thinking of?

TIA - I know they are consulting with a lawyer but I was curious as to their options.

Lucky *******

 

[DA RAIDERS]

i handled my FIL's intestate affairs.  he refused my advice, while still alive, to consult a lawyer and lay everything out ahead of time.  this is a nightmare.  get him to speak with an attorney ASAP.

 

[BroncoFreak_2K3]

i handled my FIL's intestate affairs.  he refused my advice, while still alive, to consult a lawyer and lay everything out ahead of time.  this is a nightmare.  get him to speak with an attorney ASAP.

Been through this myself as well. Best advice right here.

 

[Juxtatarot]

Kind of obvious but worth mentioning…lots of assets never go to an estate because of joint ownership, beneficiaries named on IRAs, names on deeds on property, etc.

 

[Mrs. Rannous]

Can he get a divorce?  That and a will would clear everything up.

 

[pollardsvision]

Can he get a divorce?  That and a will would clear everything up.

I was wondering that too, but, especially from the sound of this lady, it's hard to imagine that would do much good. She hasn't lived with her "husband" in 6 years, yet is already fighting with the kids about the estate when her "husband" has possibly a year or so left to live.

This sounds like the sort of woman that would happily drag this out, making it so costly it's pointless out of spite and greed. 

 

[Terminalxylem]

Not a lawyer, but I highly recommend he have an advance healthcare directive as well. And I wouldn't necessarily involve a lawyer for that document, as the ones they draw up rarely have medically meaningful language. If utilized in your state, POLSTs are great for those with terminal illness. But you really need to have his doctor walk you through it, especially the "limited interventions", if he chooses that route.