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Thomas McJD
Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6514
Experience:  Wills, Trusts, Probate & other Estate Matters
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MY FATHER AND STEPMOTHER FILED A JOINT WILL IN 1978 DIVIDING

Customer Question

MY FATHER AND STEPMOTHER FILED A JOINT WILL IN 1978 DIVIDING THE PROPERTY INTO 4 EQUAL SHARES BETWEEN MY BROTHER, MYSELF, HER SON AND DAUGHTER. MY FATHER DIED MARCH 1996; THE STEPMOTHER FILED ANOTHER WILL APRIL 16,1996.IN HER NEW WILL SHE STATED "THAT SHE LEFT HER 50% OF THE PROPERTY TO HER 2 CHILDREN. SHE DIED DEC 2012; HER SON WHOM SHE APPOINTED EXECUTOR TO THE ESTATE JUST NOTIFIED MY BROTHER AND ME ON MAY 13,2013 OF HER DEATH. HE ALSO, CLAIMS IN HIS LETTER THAT SINCE THE ORIGINAL WILL STATES THAT THE PROPERTY SHALL BE DIVIDED EQUALLY BETWEEN THE 4 OF US, THAT HE AND HIS SISTER ARE ENTITLED TO 37.5% EACH AND MY BROTHER AND I ARE ONLY ENTITILED TO 12.5% EACH.
MY QUESTION IS "DOES HER WILL OVERRIDE THE ORIGINAL JOINT WILL MADE BY MY FATHER AND HER AND IS THE SON ACURATE IN HIS CALCULATION OF DIVISION OF ASSETS?"
Submitted: 1 year ago.
Category: Estate Law
Expert:  Thomas McJD replied 1 year ago.

TMcJD :

Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.

TMcJD :

What does the joint will state with regard to what happens to all the property on the first death (in this case your father's death)? Generally a joint will states that all property goes to the surviving spouse on the first-to-die spouse's death.

Customer:

it states "i/we give, devise and bequeath to the survivor of us our home and property for the survivor's lifetime, to use at their discretion with full power to sell, mortgage or dispose the fee simple of same, and to collect, use and dispose of proceeds therefrom. however, at the death of the survivor, the home or any remaining proceeds therefrom shall be divided equally, share and share alike, between our four (4) children, namely timothy rowe, terrr rowe, edward bradley and karen bradley-hobbs.

TMcJD :

Does the will contain any language indicating that they entered into a contract regarding how their property should be distributed? If not, is there a separate agreement to make wills?

Customer:

yes, they both made lists of each of his and her personal properties such as jewelry, furniture, guns, crystal, china bric-a-brac, piano antiques clothing etc., then it states "after the death of the survivor of us and after satisfaction of the specific items bequeathed above, any remaining residue of our property, both real, personal and mixed, shall be divided equally, share and share alike, between our four (4) children." IN TESTIMONY WHEREOF, I/WE have hereunto subscribed our names to this our JOINT AND MUTUAL LAS WILL AND TESTAMENT, in the presence of the persons witnessing it at our request, on this 20 day of September, 1991 at Prestionsburg, Floyd county, KY

TMcJD :

Okay, but that is not a contract. Here is the pertinent statute:

TMcJD :
394.540

Contract to make a will, not to revoke a will or to die intestate.

(1)

A contract to make a will or devise, or not to revoke a will or devise or to die

intestate, if executed after June 16, 1972, can be established only by:

(a)

Provisions of a will stating material provisions of the contract;

(b)

An express reference in a wil

l to a contract and extrinsic evidence proving the

terms of the contract; or

(c)

A writing signed by the decedent evidencing the contract.
Customer:

in english please

TMcJD :

For there to be a valid contract that would prevent her from making a new will that cuts you and your brother out of your fair share, the joint will they made would have to have language in the will that stated they contracted with one another not to make subsequent wills with different provisions than those of the joint will.

TMcJD :

Alternatively, they would have had to make a separate written contract stating that they agreed that neither would make a new will at a later date that distributed the property any different than as it was distributed in their joint will.

TMcJD :

Absent such a contract, she unfortunately had the legal right to make a new will after your father's death that left property to only her children.

TMcJD :

However, that doesn't mean you're not entitled to anything. Anything that was part of your father's estate is still distributed as follows: 1) life estate to her and 2) split 4 ways after her death.

TMcJD :

As far as your step-brother's calculations, there's no way to know if those are right because there's no way of knowing without a thorough review of property records what property was actually a part of your father's probate estate. Many times when the first spouse dies, there is little, if any, property that is part of that spouse's probate estate. This is because spouses usually own property jointly.

TMcJD :

When property is owned jointly, it passes from one spouse to the surviving spouse without ever being part of a probate estate. As such, the terms of any will are irrelevant because a will only controls property that is part of a probate estate.

TMcJD :

However, if you assume that 1/2 was part of your father's estate, then you and your brother are entitled to 1/4 each to 1/2 the whole estate. That is 12.5% each for you and your brother. Your step-siblings would be entitled to 37.5% each. However, again, those numbers would change if more or less than 1/2 of the property was part of your father's estate.

Customer:

ok, it states in the first paragraph "i/we ----------do hereby make, publish and declare this is our joint and mutual last will and testament, hereby revoking all wills and codicils to wills heretofore made by either of us. this means before and not after doesn't it?

TMcJD :

Yes, that means they revoked wills made prior to the joint will, not those made after.

Customer:

in other words my brother and i are sol as far as getting our fair 25% share of the property

TMcJD :

Well, you're out of luck getting your 25% of your step-mother's estate, but you are still entitled to your 25% of your father's estate -- it will just come down to what was actually a part of his estate and what wasn't.

TMcJD :

Sorry, I wish I had better news for you.

TMcJD :

I really do understand what you're going through because it's something I run into quite a bit unfortunately.

TMcJD :

And I wish you weren't facing this nightmare.

Customer:

well, our father was never there for us as children, i guess we should have expected as much.

Customer:

thank you for your help, really appreciate it, terri

TMcJD :

I'm sorry. You're welcome. I'm glad I could at least give you some information on the law so you understand why things are turning out the way they are. Please let me know if I can help with anything in the future.

Thomas McJD, Attorney
Category: Estate Law
Satisfied Customers: 6514
Experience: Wills, Trusts, Probate & other Estate Matters
Thomas McJD and other Estate Law Specialists are ready to help you
Expert:  Thomas McJD replied 1 year ago.
Our chat has ended, but you can still continue to ask me questions here until you are satisfied with your answer. Come back to this page to view our conversation and any other new information.

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Customer: replied 1 year ago.


what can my brother and i do to tie this property up in probate

Expert:  Thomas McJD replied 1 year ago.
You could open a probate estate up for your father and make arguments over what was included in his probate estate. in your step-mother's probate you could tie things up for a bit arguing that there was a contract to make certain wills, but ultimately that is a losing argument based on the statute quoted. You could also argue, however, that the will is invalid for lack of testamentary capacity or undue influence by her children.
Customer: replied 1 year ago.

ok, thanks

Expert:  Thomas McJD replied 1 year ago.
You're welcome. Have a good night.
Customer: replied 1 year ago.
I DON'T HAVE ANYMORE QUESTIONS BUT, I DO HAVE GOOD NEWS. THEY HAVE TO DECIDED TO SPLIT THE PROPERTY IN 4 EQUAL SHARES. :)
Expert:  Thomas McJD replied 1 year ago.
That's great. Thanks for letting me know.

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