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AlexiaEsq.
AlexiaEsq., Managing Attorney
Category: Estate Law
Satisfied Customers: 11690
Experience:  19+ Years of Legal Practice in Estate Law.
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have been taking care of terminally Ill husband for 6 months.

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have been taking care of terminally I'll husband for 6 months. I thought he hadn't done a will yet but found a copy of a will he drew up a month ago without my knowledge. He has a few real estate holdings in his name, not mine jointly, that were acquired after the marriage. There is kinks I a life ins policy with a value of $90k set up the same way.

I see in his will that any assets in his name are to be distributed 1/3 to me, 1/3 to our minor daughter age 14 and 1/3 to our daughter aged 19 (in trust til age 25 for both girls). he named a nephew as executor and trust manager instead of me.

I'm very worried about this as I would only collect about $60k in cash. I have not worked during our marriage, he had a business which he shut down due to his illness. There is no income except his SS. I don't know why he did this without telling me but since he is on oxygen I don't want to confront him in any way that would worsen his condition. After I pay funeral expenses and his credit cards, etc off, I will be left with only $20k. I won't be able to pay my bills including a mortgage in my name in the house where we live. Unfortunately, ALL of the money will be needed to support us, not just my $20K, that will last about 3 mos and that's it.

Do I have any recourse to fight this distribution?
Submitted: 8 months ago.
Category: Estate Law
Expert:  AlexiaEsq. replied 8 months ago.
Hi, my name is XXXXX XXXXX X thank you for your inquiry. I have been practicing Estate law for 19 years and look forward to assisting you.

Can you clarify for me what your age is?
Customer: replied 8 months ago.
53
Expert:  AlexiaEsq. replied 8 months ago.
Good morning, and thank you for your follow up. I am going to discuss with you the realities of NY estate law, as they generally apply - and try to drill home where you are at and what may be your best course of action to consider. It is a difficult situation, and I realize you may not get the miracle you wish for, but I do think you will be absolutely fine, and will be looking at this situation differently in a year or 2:

have been taking care of terminally I'll husband for 6 months. So sorry.

 

I thought he hadn't done a will yet but found a copy of a will he drew up a month ago without my knowledge. OK.

 

He has a few real estate holdings in his name, not mine jointly, that were acquired after the marriage. OK.


There is kinks I a life ins policy with a value of $90k set up the same way. What do you mean set up the same way? He can't have himself as beneficiary, so he either had a person or his Estate.

I see in his will that any assets in his name are to be distributed 1/3 to me, 1/3 to our minor daughter age 14 and 1/3 to our daughter aged 19 (in trust til age 25 for both girls). OK, so you will get 1/3 of all. Do you know how much those multiple real estate properties are worth?


he named a nephew as executor and trust manager instead of me. Do you know why he didn't put you into that slot? Do you think he did't think you were able to handle the finances?

I'm very worried about this as I would only collect about $60k in cash. That is not so unusual. Particularly when most of the assets are not cash.

 

I have not worked during our marriage, he had a business which he shut down due to his illness. OK, obviously you will want to upgrade your credentials if you would like a job that is beyond entry level/min. wage.

 

There is no income except his SS. OK, now his 14 year old and you may be able to secure his SS in the form of dependent/survivor benefits. This may help you to get by after downsizing if need be. THe 19 year old, being an adult, is no longer a dependent unless she is still in HS. Note that YOUR dependent benenefits/as survivor, will only be paid you while your 14 year old is UNDER 16 - so you need to get your new career in place certainly as soon as possible.

 

I don't know why he did this without telling me but since he is on oxygen I don't want to confront him in any way that would worsen his condition. I understand! But it would be great if you could explain to him that the house will have to go and the kids will have to change homes, likely a small apartment where they share a room (a 2 bedroom, for instance) - since that is all that you will likely be able to afford while going back to school for something, working min. wage, while living on temporary SS benefits) - he may do the math and realize that the $60k value you think are going to the 2 children, each, may be needed now. However, there is also the possibility that he believes that if your $60k will be blown through by spending in just a few months, that giving you the money that could be for the kids' futures would also burn up, into thin air, if left for you to support you, rather than have you become self-supportive.

 

After I pay funeral expenses and his credit cards, etc off, Now this is likely a mistake - YOU don't pay the funeral expenses yourself - or, more appropriately, if you pay it in the interests of time, you then submit a bill TO THE EXECUTOR as a just and priority debt that the estate must pay before it pays credit cards, etc. HE (his estate) also pays the credit card debt, not you personally. That way the 1/3 you each get means that the girls will each be having those expenses reducing their take as much as yours will.

 

I will be left with only $20k. The estate pays the bills from ITS assets - THEN you divided by 1/3. Also, in NY, if your 1/3 is less than $50k, you can take the $50k if it exists - even if that means the children don't get 1/3. In other words, your "elective share" means you can elect to NOT take as described in the will, but instead take the greater of 1/3 or $50k, whichever is greater. You will also use the 14 year olds SS money, as her parent/payee representative, to take care of her, including her shelter, food, clothing, etc.

 

I won't be able to pay my bills including a mortgage in my name in the house where we live. I am so sorry you didn't foresee that the breadwinner could die at some point. A lot of people find themselves in the same boat. If possible, you will want to, then (if you don't want to get a job that will pay the bills as they now are), downsize. You only have 2 people you must look out for, you and your youngest. You can certainly choose to put a roof over the 19 year old's head, but you can also charge her some basic rent, which will help her become self-sufficient so she will not repeat these mistakes by becoming dependent on another adult for survival.

 

Unfortunately, ALL of the money will be needed to support us, not just my $20K, that will last about 3 mos and that's it. Unfortunately, it doesn't work that way. Aside from your right of election described above, the law does not change a person's will just because a survivor wants a bigger chunk - generally, we have no right to the moneys of another, unless that person effectuates same in a will, or a statute (like elective share) kicks in. Here, it looks like he made your share about the same as if you did take the elective share. If you look at it pragmatically, it seems evident from your statements that if you were given ALL of the money, you'd only last a year if you didn't get out and start becoming self-sufficient. Perhaps your husband realized that you may not plan to work, and only spend, and realized that would leave his children penniless, as well as his wife.

If your 20k will only last 3 months, then taking the children's savings of $40k+ to spend on the present means you will only last 9 months, if you don't start earning as an adult. It may be that your husband realizes that you will only be spending this nest egg and not using it to improve the future (i.e. college for a child, business start up by one of the children or you, retirement fund, etc.). In other words, if you were not going to decide to get a job and support yourself, you will have $0 and lose everything anyway. It is unfortunate you didn't choose to return to the productive life of a working adult once you no longer had small children in the home - i.e. 9 years ago when your youngest went to school full time, or could have. So you are a little behind the 8 ball, with a non-existent career. However, like most people, you can change that. You are very young, and rather than find yourself at $0 in less than a year, (which will mean moving to a shelter, possibly, being homeless) better to have $50k or so in savings, and a modest job at the very least, so you can support yourself and not rely on welfare or live in a homeless shelter. It will also give you something to do during the day, since the last 6 months of caretaking will not be a need any longer, and the prior 9 years of not working outside the home but relying on your husband's outside work efforts will be something you can put behind you as well
. Big changes, but you can do them successfully. But you must take action.

Do I have any recourse to fight this distribution? No, except as described above, generally. And, if you look at it pragmatically, changing the distribution only ensures that you spend ALL of the money in less than a year, trying to maintain an impossible lifestyle that can only be maintained if you work and earn a living. It would ensure that NO savings or nestegg remains. Consider the benefits of not spending that money, treat it as if it does not even exist - as if it already got spent on his leftover medical bills - and how you'd quickly learn to tough it out, downsize, and live within your new means. I know this sounds every scary - but it happens all the time to your neighbors, community members, everywhere - and you CAN become a productive, wage earning, self-sufficient woman. In 1-2 years, you can be thanking your lucky stars that you didn't waste your inheritance on a few months of mortgage in a home you can't affort, but will be in a job, earning your living, as your children move off into their own adulthood, each of you having your own little nestegg for your futures.

I will add that if you do not remarry befre age 60, if you can support yourself to full retiement age, once you hit that retirement age, you can collect Social Security Retirement benefits from your husband's work records (since you don't have much of one probably) in the amount of 100%. (If you take before your full retirement age, you will reduce that monthly amount significantly and permanently - so you will likely want to WAIT, keep working, until full retirement age so that when you actually CAN NOT work (due to age related decline), you will have the greatest amount of income to get by on.)

I hope this helps! My goal is to provide you with excellent and accurate service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Kindly rate me "excellent" when you are done. I look forward to assisting you in the future, should you have legal questions. Be sure to start future posts with "To Alexia Esq., ONLY" if you want me to specifically answer it.

Sincerely, XXXXX XXXXX

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AlexiaEsq., Managing Attorney
Category: Estate Law
Satisfied Customers: 11690
Experience: 19+ Years of Legal Practice in Estate Law.
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