Jump to content
Mr.P96825

Help!! Father has passed away and 2nd wife is withholding information

Recommended Posts

Recently my father passed away after a long battle with a debilitating condition, dementia.  My father had inherited a large sum of money several years ago and is now under the control of his 2nd wife.  For years my father said he had a will and living trust however he would not provide me with documents proving this but said his wife would produce them.  Now the funeral is over and I'm heading to home, I ask her when the will or living document would be read or provided and she says there's none and all his investments are being transferred to her. 

 

My questions are: 1. Don't I rate some portion of his assets, if no will or trust existed? 2. How can I check and see if a will existed? 3. Where should I begin to find out these answers?

 

What I can tell I'm entitled to 1/2 of his assets but I'm not for sure if what I'm reading is correct.  Should I contact a Estate planner, or criminal counsel?

 

Last time my father and I spoke he showed me on paper his assets were well over 2.5 million.

 

Any assistance or advice would greatly appreciated.

 

 

Share this post


Link to post
Share on other sites

First, it’s important to understand that his will, if he had one, only applies to his probate estate. If he had no will, then the state intestate succession law would determine what portion of his probate estate you’d get. Thus, the first step is to determine what assets go into his probate estate.


 


Assets that are placed in trust are not part of the probate estate. What happens to the assets in the trust are instead determined by the terms of the trust instrument. If he had a trust, then you need to get a copy of the trust document to see what the terms of the trust are.


 


Assets that he held jointly with someone else as joint tenants with a right survivorship (JTWROS) are not part of the probate estate. When one joint tenant dies then his/her interest in that asset disappears, and other co-owners are the only owners left. So, if he owned any property with her as JTWROS then his interest in that property disappeared when he died, leaving her as the sole owner of the property. 


 


Financial assets like bank accounts, CDs, life insurance, brokerage accounts, etc., can be held as joint tenants with a right of survivorship. But they can also simply have a pay on death (POD) beneficiary designation on file with the financial institution. With a POD designation, when the account holder dies, the name beneficiary immediately becomes the owner of the account. Those assets that pass by POD are also not part of the probate estate. 


 


It is not unusual at all for most of the assets of a married couple to pass to the surviving spouse either because they were owned JTWROS or because of beneficiary designations. If your father and his wife held most of their stuff that way there may indeed be very little here for his probate estate. In that case, there would be little to divide up under his will or by intestate succession.


 


If there was a will then the person holding it should lodge it with the court that handles probate in the county where he was living when he died. So, in a couple weeks try looking to see if anyone has opened a probate estate for him and see if any will was lodged. That’s all public record.


 


Note that the “reading of the will” that you see in movies and TV where everyone gathers around right after the funeral to hear how the deceased wanted to divide up his stuff is mostly the stuff of Hollywood fiction. It is not required and rarely does it actually take place. Indeed, there are a lot of good reasons not to that kind of thing.


 


I’ll also note that asking about his will and trust right after the funeral probably came across to her as a little cold, uncaring, and perhaps greedy. I’m not saying that you intended that, but it’s usually a good idea to wait for a little bit after the person is dead to start inquiring about what you might get from his estate. Even if you did not much like her, a little sympathy at this time can go a long way.


Share this post


Link to post
Share on other sites

Thank you for the info and your last statement, which this was handled kindly, in a casual setting.  My concern is I have no idea as to how he handled his assets and our family assets.  We have items that have been in the family since early 1800's, and other things that I just don't feel good about when she says, trust me, I'll take care of you without documentation. Maybe I should have faith in man kind and trust her word.

Share this post


Link to post
Share on other sites

Don't I rate some portion of his assets, if no will or trust existed?

 

When a person dies without a will and is survived by a spouse and children, his estate is divided in some manner between the spouse and children (specifics depend on the laws of the decedent's state of residence).  Note that investment accounts often designate pay-on-death beneficiaries and pass outside of the estate.

 

 

 

How can I check and see if a will existed?

 

Wills are not public documents unless they are filed for probate (or otherwise filed with the court after death pursuant to the laws of some states).

 

 

 

Should I contact a Estate planner, or criminal counsel?

 

Certainly not a criminal attorney.  You'd be looking for a probate attorney, who may or may not also do estate planning.

Share this post


Link to post
Share on other sites

How recent is "recently"?  Can't know from here whether you're getting yourself in a twist too soon (the reference to a criminal attorney surely suggests it).

 

You're free to hire an estate-probate attorney to file intestate succession/died without will documentation and apply for adminstrator position.  That sh-would flush out any will that gives her an edge or all.  Note that in general a state's law will dictate that a will should be coughed up within a few or so months of death (this is where "recently" may have some significance).

 

It's very possible that all major assets were set up joint tenants w/ right of survivorship or pay on death to spouse.  Not a geek about NE law in particular, but if its law takes position that it's only a rebuttable presumption that adding someone (including family member) as a joint owner conveys ownership, unless there's plenty of evidence in terms of witnesses or miscellaneous documentation to indicate that father added spouse as a joint owner only for convenience purposes/ease of distributing X to others or to take care of bills, she'd wind up with dough on a JTWROS account. 

 

As for personal property that was his before he married her, unless there's a will to say what happens to it (could be just a pour-over will that indicates it's to go to X trust), that would be governed by intestate succession.  (Of course, estate debt needs to be paid off before bequests/transfers can be made by the estate to heirs, so if there's a lot of estate debt or she doesn't want to use now-solely-hers assets to cover them, you might have to cough up dough to buy treasured items from the estate.)

Share this post


Link to post
Share on other sites

Hi Mr. P96825,

 

First, let me say that I'm very sorry for your loss. As the other posters have said, many of your father's assets could have passed to his second wife outside of the probate process. Check out FindLaw's section on avoiding probate to understand why your father might have wanted to rely on POD accounts or joint tenancy.

 

In general, it sounds like you might benefit from the help of a probate attorney. FindLaw has a helpful directory of lawyers you can use to find probate lawyers in your area. You might also want to check out our estate planning section for additional general information on intestate succession (the laws determining who gets what if there is no valid will) and probate issues. Good luck!

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

×
×
  • Create New...