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Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 23130
Experience:  14 yrs estate law, real estate. Wills/Trusts/Probate
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My father just passed away unexpectedly. My step mother told

Customer Question

My father just passed away unexpectedly. My step mother told me that there is no will so that leaves everything to her. Is this accurate?
Submitted: 11 months ago.
Category: Estate Law
Expert:  Barrister replied 11 months ago.
Hello and welcome! My name is XXXXX XXXXX I will try my level best to help with your situation or get you to someone who can.
.
My step mother told me that there is no will so that leaves everything to her. Is this accurate?
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No, that is entirely inaccurate. Under PA intestacy laws, if a deceased is survived by a spouse and children who are not also children of the wife, then she gets half of the estate and the children split the other half.
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This doesn't apply to assets that were in both spouse's names as those would pass to the surviving spouse automatically and not be part of the estate.
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PA Statutes Title 20, Chapter 21

2102. Share of surviving spouse.

The intestate share of a decedent's surviving spouse is:


(4) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, one-half of the intestate estate.
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.
Thanks
Barrister
Customer: replied 11 months ago.
I am somewhat relieved to hear this. What about vehicles only in his name? What about my grandmothers home that is only in his name. She has passed. And I live in the home. I am 36 and have lived here since 4th grade.
Expert:  Barrister replied 11 months ago.
Anything that was solely in his name...vehicles, real estate, bank accounts, investment accounts, etc, would be in his estate and would be divided between his spouse and his children equally. Spouse gets half and children split the other half.
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.
Thanks
Barrister
Barrister, Attorney
Category: Estate Law
Satisfied Customers: 23130
Experience: 14 yrs estate law, real estate. Wills/Trusts/Probate
Barrister and 7 other Estate Law Specialists are ready to help you
Customer: replied 10 months ago.
She told me today at the funeral she will be working on transferring vehicles into her name this week. I said I though those just in his name are to go into the estate? She said no it is all mine. Attorney told her so. She suggested I ask my own attorney. So can she just go ahead and do this?
Expert:  Barrister replied 10 months ago.
Once again, no. If the vehicles were in his name, then they are now considered assets of his estate and would have to go through probate. I suspect that she is simply trying to bluff you into not pursuing your rightful share of his estate.
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The children's share is set out in PA law here:
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PA Statutes Title 20, Chapter 21

2103. Shares of others than surviving spouse.
The share of the estate, if any, to which the surviving spouse is not entitled, and the entire estate if there is no surviving spouse, shall pass in the following order:

(1) Issue.--To the issue of the decedent.

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.
Thanks
Barrister
Customer: replied 10 months ago.
Is it possible a will does exist and my step mother is just not providing it? My question really is --- is there a lawyer that would have a copy of this or something?
Expert:  Barrister replied 10 months ago.
Is it possible a will does exist and my step mother is just not providing it? My question really is --- is there a lawyer that would have a copy of this or something?
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Actually yes, it is entirely possible that she does have a will and that it doesn't provide as favorable result for her. But the truth of it is that no one else would have a copy of the original will so if she has destroyed it, then default state law would control who gets what.
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But if there was a will that benefitted her more than her statutory share, I am sure she would have produced it by now.
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Thanks
Barrister
Customer: replied 10 months ago.
When it comes to splitting the estate in half, how is the value of the home determined? The assed valued or by appraisle?
Expert:  Barrister replied 10 months ago.
The named Administrator or executor of the estate will have to have an appraisal conducted to determine the fair market value of the house and that is used as the basis for any division.
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Thanks
Barrister
Customer: replied 10 months ago.
Ok. So I have done some leg work and have found a will at an attorneys office. The will was drawn up in 1995. My dad remarried in approximately 2002. Everything was willed to me and names me as executrix. Because he was married does that entitle her to half automatically? So making the same as if no will? But I can still be executrix? Is this correct? How will this benefit me?
Expert:  Barrister replied 10 months ago.
Because he was married does that entitle her to half automatically? So making the same as if no will? But I can still be executrix? Is this correct? How will this benefit me?
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If there is a will that doesn't take the new wife into account because it was done before the marriage, then she can still claim a "spousal elective share" of 1/3 of the estate due to the omission in updating the will.
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So if you are left everything in a properly executed will, she can claim her default spousal elective share and you would still receive 2/3 of the estate rather than the half you would have gotten previously. So yes, it would benefit you to admit the will.
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And yes, you still would be executrix over the estate and once appointed could exert legal authority over all estate assets.
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Thanks
Barrister
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Customer: replied 10 months ago.
Please Advise---
Friday I met my step mother and her lawyer at the court house. I did bring a lawyer along. Meanwhile in a phone conversation I had already suggested to Chris (step mothers lawyer) the law of spousal elective share of 1/3 if I were executrix of the estate and will probated. He said he never heard of that in 25 years he has been practicing. He brought with him law that that says 50/50 with or without a will. I signed off of being executrix in saying being in charge was not as important to me as getting what my legal share would be. I did get in writing that I will be receiving my family home but under the 50/50 law of whatever it was I will probably not get much more. With the 1/3 elective share law I would be entitled to more. Is the anything I can do about this now that I have already signed of of being executrix? I believe Chris misinformed us. You and another family friend lawyer suggested the same 1/3 law. Every oittle bit is important to me as I am on disability and my teaching pension at the young age of 36.

Thank
Jody
Expert:  Barrister replied 10 months ago.
Is there any way you could cite the 50/50 law the attorney is mentioning?
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My bet is that he is looking at the intestacy statutes that say 50/50 rather than the spousal election against the will statutes that apply now since there is a will. It is a shame if he has been giving people incorrect information all these years..Old timers sometimes get stuck in their ways and don't stay up to date..
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This is the spousal election statute:
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PA Code Title 20, Chapter 22

§ 2203. Right of election; resident decedent.

(a) Property subject to election.--Except as provided in subsection (c), when a married person domiciled in this Commonwealth dies, his surviving spouse has a right to an elective share of one-third of the following property:

(1) Property passing from the decedent by will or intestacy.

(2) Income or use for the remaining life of the spouse of property conveyed by the decedent during the marriage to the extent that the decedent at the time of his death had the use of the property or an interest in or power to withdraw the income thereof.

(3) Property conveyed by the decedent during his lifetime to the extent that the decedent at the time of his death had a power to revoke the conveyance or to consume, invade or dispose of the principal for his own benefit.

(4) Property conveyed by the decedent during the marriage to himself and another or others with right of survivorship to the extent of any interest in the property that the decedent had the power at the time of his death unilaterally to convey absolutely or in fee.

(5) Survivorship rights conveyed to a beneficiary of an annuity contract to the extent it was purchased by the decedent during the marriage and the decedent was receiving annuity payments therefrom at the time of his death.

(6) Property conveyed by the decedent during the marriage and within one year of his death to the extent that the aggregate amount so conveyed to each donee exceeds $3,000, valued at the time of conveyance.

.
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At this point, even though you are not executrix, the named executor/trix still has to follow the law with regard to distributions. I would suggest Googling the above statute, printing it out and giving copies to both the other attorney, your attorney and the stepmother. This should ensure that you receive the full 2/3 that you are entitled to.
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Thanks
Barrister

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