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Dwayne B.
Dwayne B., Attorney
Category: Estate Law
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Experience:  Estate Law Expert
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My mother died 20 years ago and left me and my siblings all

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My mother died 20 years ago and left me and my siblings all of her possessions in her will (in Florida) which were all of the items in her and my father's house. She directed my father to distribute her jewelry at his earliest convenience which he did. As to "...all of my remaining tangible personal property...with the direction that he (my father) shall have the sole and exclusive use and possession of said property as long as he wishes, but that either during his life or upon his death such tangible property shall be distributed to and among our living children." Further the will directs if my father "shall fail to distribute to my children tangible personal property that it...shall be distributed".

My father remarried quite soon after my mother died and has now been married for almost 20 years, but now is in ill health. While my father had myself and my siblings
split up the house's furniture, furnishings, some plated silver, etc. soon after my mother's death, he and his new wife took the bulk of my mother's silver and silverware (appraised at $65,000 over 20 years ago) to his new house to use. For a good portion of the marriage everyone assumed we would take this after his death, but in the last few years he has noted his will that he is requesting of us to let his new wife use this for as long as she likes. She is only 2 years older than my oldest sibling and would not be expected to demise anytime soon. At this point my father is sick and under her spell and there is no point approaching him. His wife is very covetous and I do not believe likely to easily hand things over (we have a complete descriptive appraisal of what she has, done a few years before my mother death).

Myself and my siblings, there are 5 of us, have some differing degrees of our attitude towards his wife, ranging from 2 flat out hate, 2 strong distrust but wishing to avoid conflict, and one who feels since she is his wife, she should have whatever she wants. I do not want this to tear me and my siblings apart, but I have no intention of honoring my father's "request" towards his wife.

What are our legal rights under my mother's will and how should we proceed if she wishes to keep everything?
Submitted: 1 year ago.
Category: Estate Law
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today. If at any point any of my answers aren’t clear please don’t hesitate to ask for clarification.

JD 1992 :

Were the items that you are concerned about your mother's separate property (in other words did she have them before marriage, inherit them, or receive them as a gift) or were they joint property with your father?

Customer:

They were acquired throughout her life, but primarily from wedding gifts (silver) and then much less so, things my father bought for her. She was a housewife and he was the income earner. The jewelry and furniture which he early disbursed to us would have almost fully been purchased by him for her during their marriage. She died of illness, not suddenly, and it was very understood that me and my sisters would have these things and not a new wife. She knew he would remarry.

JD 1992 :

The issue here is one of "character of the property". It is the character that determines what rights you have to it.

JD 1992 :

Anything acquired before marriage, or during marriage by gift or inheritance was your mother's separate property. That means that at your father's death you can take possession of it since he can't leave a life estate or pass an ownership interest to the new wife since he doesn't have an ownership interest in it.

JD 1992 :

However, anything they purchased during the marriage that was not a specific gift to her would have been joint/marital/community property and upon your mother's death all she could have passed to you was her share of that property, the remainder would still belong to your father for him to do with as he sees fit.

JD 1992 :

The wedding gifts are a strange amalgamation because they would have been given to your mother and father either before or just after marriage so they would either be property in which each owned a separate property interest or they would be joint/marital/community property in which each owns an interest.

Customer:

So what about stuff they got when they were married as gifts? Also, any silver pieces acquired by her during their marriage would have been a gift to her as it was always what she wanted, not him.

JD 1992 :

Anything that was a gift to her belongs to you children. Anything that was a marital present belongs half to you and half to your father.

JD 1992 :

Your father's "request" to you in the will isn't binding.

Customer:

So pieces of silver are dividable, can it be viewed as equally dividable, the stuff they received together or indivisible?

JD 1992 :

It can be divided. There are a number of ways. First, if there were 8 silver knives, for instance, then 4 could be given to the children for the mother's share.

JD 1992 :

However, if there is only one tea set, for example, the court can either offset by the parties agreeing something else is equal to that one tea set or the court can order that the tea set be sold to one of the parties and the money divided as appropriate or if no party wants to buy it then the tea set could be sold to an outside buyer.

Customer:

So am I to understand he could bequeth to his wife his interest in the joint property, but since he has just "requested us", it is not binding and we revert to my mom's will?

JD 1992 :

No, if he bequeaths his interest to her that is binding as to his share. If he just requests that you allow her to use the items it is not binding.

JD 1992 :

A bequest is binding, a request is not.

Customer:

Thanks, best $26 I've ever spent. I've never used this...come from generations of lawyers including my father and I am a law school drop out, how do I find you in the future?

JD 1992 :

If you need me in the future when you sign on to ask a question just start the question with "FOR JD 1992" and I will pick up as soon as I see it. I am online most days for at least a few minutes to check for people asking for me.

JD 1992 :

Also, once you issue your Positive Rating on this question it will change formats and will no longer time out so you can always come back to it if you need to check on something we discussed.

JD 1992 :

The website is showing that you are offline so I will exit to assist others.

JD 1992 :

Best wishes to you on this and please don't forget to leave a Positive Rating (of course I’d suggest Excellent!) so I get credit for my work.

Dwayne B., Attorney
Category: Estate Law
Satisfied Customers: 27196
Experience: Estate Law Expert
Dwayne B. and 3 other Estate Law Specialists are ready to help you
Expert:  Dwayne B. replied 1 year ago.
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR JD 1992” in the subject line or as the first words of your question and I will pick up as soon as I see it.

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