UGH... and so it begins...

serenity_now_2007December 2, 2008

Hi, all...

Well, wouldn't you know right on the heels of (and overlapping with) my grieving for my deceased Dad, I gotta now be worried about possible hinky goings-on regarding the "interpretation" of my Dad's will. I know none of you all are attorneys (at least not to my knowledge), and I won't hold you to anything you say like it was gospel-legal-truth, but I am interested in what your gut feelings, opinions and/or experiences would be on this:

In a nutshell, SM fully inherited the house (which is fine by me, always has been, and in fact was at my urging) but wants the remaining $107,000 mortgage on it to be paid off by the residual estate (not fine with me, and it's no surprise b/c she has always wanted it free and clear). And since the residual estate consists of my Dad's extensive antique collection (that was his business) and since net proceeds from sale of such are to be split 60% to me and 40% to her--- what that basically means is that the luxury of her having a free-and-clear house is to be paid for 60% by me, to the tune of approx. $65,000 and approximately one-third of the total amount I personally would otherwise be expected to net from these antique sales.

She inherited all the cash, socal security, life insurance, accounts, 40% of antique sale proceeds (plus 100% proceeds from several that happened before his death), she has aways had a full-time job and has hardly ever chipped in with household bills (or tasks) except for the rare times my Dad asked her to help (which he had to ask several times, btw, before she did it). I am also aware that before his death she consolidated her $10,000+ in credit card debt under HIS credit card, which will also be paid for out of the estate. All that's done and can't be changed and I'm not concerning myself with it. But my main point here is: she AIN'T HURTIN' and she is certainly more than capable of continuing the mortgage payments herself.

I've done a bit of online research and everything I've read so far (including the state's official Probate Code and various documented court verdicts in that state) would indicate that NO, the estate does not have to pay for one beneficiary out of several to have their ASSET further bolstered by other beneficiaries who themselves will get no benefit from said asset.

Where I think the confusion lies is in the standard directive in most wills to pay off "all debts" before anything else gets done/distributed. It's a question of what is meant by "ALL debts", and it is vague. This item I looked at on the state's Probate Code, though, is very clear (the will has not, however, been submitted to probate yet). Furthermore, it is my understanding from what I've read that UNLESS the will *specifically* says that the mortgage has to be paid off by estate, that the law generally does not assume that is the intention.

Still, I am curious as to what commonly is done or considered appropriate in this situation, which I imagine is pretty darn commonplace (after all, many people with mortgages die still own some on them; most peoples' residual estates would be pretty well chewed up if they paid these off in full). I sorta got the impression that this sort of thing might be attempted ---and go through--- unless or until an objection is raised citing the relevant Probate Code item challenging it. Thoughts?

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The wisest thing you can do at this juncture is to hire an attorney who specializes in estate planning. It probably won't cost more than a few hundred dollars to have all of your questions answered. I've had to do it and it was well worth the price of admission.

    Bookmark   December 2, 2008 at 10:18PM
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if it says pay off all bills it should pay off the mortgage. if that is done it won't all come out of your share. it doesn't matter what she makes it matters what the will says. your lucky there was a will, in my state she would have gotten all as i did. we were married 33 years and every thing was in my name by right of survivor ship. i was very surprised that his kids did not ask for anything except a couple of keepsakes.

    Bookmark   December 2, 2008 at 11:04PM
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I'm not an attorney, but my understanding is that it depends on how the property is titled. I believe if she inherits the house because they are tenants in common, then it becomes her property (and her debt) automatically. If they are joint tenants, his half of the equity becomes part of his estate. If he wills his interest in the house to her, she gets the equity.

Normally, all debts are paid from the estate and if there isn't enough money to pay all debts, then the house or other real property has to be sold to satisfy debts. I wouldn't see the house as a debt, it's an asset... unless more is owed than it's worth. It's an asset that is encumbered. But, like I said, I'm not an attorney... that's just my opinion.

    Bookmark   December 3, 2008 at 12:27AM
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in my state no one can take the home except the irs if taxes are owed or mortgage co. if payments aren't made. lien's can be placed on property.

    Bookmark   December 3, 2008 at 9:36AM
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Definitely, time to consult an estate attorney.
The stakes are simply too high NOT to.

Question: Was the will written by the attorney she sent that wacko religious email to? And could you simply ask that attorney to clarify?

    Bookmark   December 3, 2008 at 9:46AM
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Stargazer, I think this debt is a mortgage. In any event, I think you have to see a lawyer, and sooner rather than later.

    Bookmark   December 3, 2008 at 10:53AM
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I'm sorry for the loss of your father. You don't need this kindof stress so shortly after his passing. It's sad that it always happens this way.

Get a lawyer and let him/her handle this so you don't stress yourself out more than necessary. Hugs and prayers to your family.

    Bookmark   December 3, 2008 at 1:32PM
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If your father had an attorney, which it sounds like he did, he may be able to recommend somone to you.

    Bookmark   December 3, 2008 at 1:42PM
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In my state, homes are not considered debts. They are investments.

A very good friend of mine's mother died when she was 15. No will. So, in my state, everything goes to surviving spouse. This included her share of the home. He re-married several years later and never had any additional children; just the 3 from his deceased wife. They lived in HIS home (same home he had with deceased wife). He died very very suddenly of a blood infection that the doctors weren't able find until after he died. No will. So the home went to Probate. Probate ordered that the home belonged to the 3 children in equal shares since the home belonged to the father and the mother before the mother died. BUT the court ordered that the wife could live in the home as long as she wants so long as she makes the payments and doesn't default. There is a legal term for it, but I can't remember it right now. She cannot profit off the house whatsoever. BUT, she did get 100% of the profits of the sale of his business and all the equipment.

    Bookmark   December 3, 2008 at 5:00PM
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You all will be glad to know I spoke with a lawyer today, based right there in my Dad's city. (I know *I* am glad.) He will get back to me as to mortgage... But he generally reassured me that if indeed what I've concluded is right regarding interpretation of the will, that she won't be able to just get away with that, and there's no immediate hurry to get into any legal entanglements over it unless/until it becomes a problem. (I'm glad b/c at heart I'm pretty much a pacifist...) But he's got to read EXACTLY what's written in the will and look at the title before we know for sure what's what...

    Bookmark   December 3, 2008 at 7:13PM
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Serenity -- excellent.

Please advice him that you may need a temporary order that nothing be sold until this is sorted out.

Hugs and Hugs.

    Bookmark   December 3, 2008 at 7:37PM
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ashley that is the way it is in my state and i know of a situation similar regarding sisters in arkansas. one sister lived with the mother and when the mother died the home was left to the two daughters. the sister living there did not have to move out and her sister had to wait until the sister died or moved to get her share.

    Bookmark   December 3, 2008 at 8:57PM
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A life estate is the term for the rights to live in the property without being on title until you pass. The property can not be sold when it has a life estate unless the person with those rights signs them away.

I agree with KK - you need to get a temporary stay placed on all assets until this is sorted out. I just don't trust that woman.

More hugs.

    Bookmark   December 3, 2008 at 10:39PM
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