First, who owned the family business or who was involved in such? What form did the business take - sole proprietor, partnership, LLC, or corp.?
Second, where/are there other owners? If so, who are they?
Third, is the estate in probate?
The wife owns the business which is valued at about $5M. The husband is not the father of her children. Her first husband passed away 23 years ago.
There are no other owners.
The wife is 58 and in good health. Therefore , the estate is not in probate.
I'm sorry I misled you. Nobody died.
Yes, she owned the business 100%.
Sorry, from the initial question I assumed (incorrectly) that the spouse died.
What does she want to do with the business?
Rhode Island is a little different from most other states in that it makes an important distinction between real and personal property and how such property is inherited from an intestate estate. If any part of a Rhode Island decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:
1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to may vary. With personal property, a surviving spouse is entitled to the following after all debts and expenses of the estate are paid:
The tricky part is what happens when real estate is involved. Assuming that any real estate is owned solely by the decedent, the surviving spouse gets ownership of the property only for the duration of her life (known as a life estate). After the surviving spouse dies, the real estate would pass to the first deceased spouse's heirs according to the rules below. In the alternative, the probate court may allow the surviving spouse to fully own real estate located in Rhode Island and valued at $75,000 or less or, if the property is worth more than that, allow the administrator of the estate to sell the property and give the surviving spouse $75,000 of the sale proceeds.
If you are married and own real estate in Rhode Island, make sure that you own it jointly with your spouse or have a will that transfers ownership of it to your surviving spouse. Leaving a life estate in your family home to your surviving spouse is not a very marketable commodity. If the surviving spouse needs to sell the home for any reason, it will be hard to find somebody who is willing to buy it only for the remainder of the surviving spouse's life.
Likewise, the alternative of receiving $75,000 is not a very appealing option either. In today's market, this amount doesn't come close to the average price of a home. Also, a home is one of the biggest investments that people make and usually appreciates in value. Failure to do some basic estate planning in advance will quickly turn such a wise investment into a catastrophic loss.
2. Heirs other than surviving spouse. Any real or personal property not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes in the following order of availability to:
If representation is called for as indicated above, the estate is divided into as many equal shares as there are surviving heirs in the nearest degree of kinship and deceased persons in the same degree who left issue who survive the decedent. Each surviving heir in the nearest degree receiving one share and the share of each deceased person in the same degree being divided among his issue in the same manner.
3. State of Rhode Island. When there are no other takers under the rules above and any real estate located within the state is involved, the town council of the Rhode Island town in which the real estate is located may direct the town treasurer to take the property into his or her possession for the use of the town. The remainder of decedent's assets go to the state of Rhode Island under the state's unclaimed property laws.
There is no "elective share" in Rhode Island - which means the following:
An elective share is a term used in American law relating to inheritance, which describes a proportion of an estate which the surviving spouse of the deceased may claim in place of what they were left in the decedent's will. It may also be called a widow's share, statutory share or forced share.
The elective share is the modern version of the English common law concepts of dower and curtesy, both of which reserved certain portions of a decedent's estate which were reserved for the surviving spouse, in order to prevent them from falling into poverty and becoming a burden on the community.
Currently, the amount to be reserved for a spouse is determined by the law of the state where the estate is located. In most states, the elective share is between 1/3 and 1/2 of all the property in the estate, although many states require the marriage to have lasted a certain number of years for the elective share to be claimed, or adjust the share based on the length of the marriage, and the presence of minor children. Some states also reduce the elective share if the surviving spouse is independently wealthy.
If the spouse claims the elective share, they get that amount, but nothing else from the estate. Obviously, there would be no point in seeking an elective share if the surviving spouse has already been willed more than they would receive under the statute. Furthermore, some assets held by the estate may be exempt from becoming part of the elective share, so their value is subtracted from the total value of the estate before the elective share is calculated.
Therefore - it's what the wife wants to do with the business or how she wants to devise such.
In either case, I would recommend retaining counsel to formalize any devise to the children/grandchildren to both protect her and them - from each other and her from them. The attorney should draft documents specifically describing who gets what, what they will pay, who has what ownership, etc.
I have witnessed many family squabbles erupting from just such a gift of the business to the children/grandchildren - they don't pay her or they argue amongst themselves as to how the business should or is operated.
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