WV Probate court changing interpretation of will AFTER probate closed My mother's will states that real-estate 'goes to my children' with no mention of their descendants. In the residuary estate section, it states the Residuary estate goes to my children and their descendants. Initially, probate court told me that I, sole surviving child, would get the real-estate. Now, 2+ months after probate closed, my deceased brother's (remarried) widow hired a lawyer and now the probate court states her child is entitled to half of the real-estate. The will also states that if any beneficiary contest any part of the will, that they lose whatever bequests were given in the will. I am the executor of the will. My questions: Since Probate had already closed (12/20), is it legal for the Probate court to, in essence, change the terms of the will? I have several witnesses willing to provide affidavits to the effect that my mother, the deceased, made it clear that I would get the real-estate and that the grandson in question would get nothing. if I cannot beat this challenge, can I remove myself as beneficiary and have the Probate court declare that all 5 blood-related grandchildren will get equal shares? Under the original Probate interpretation, when the real-estate sold, I invested the proceeds in the stock market and there have been losses. If the challenge wins, will I have to come up with the delta--since the investment losses occurred under the original interpretation? Not sure if it has any bearing on the situation, but the grandson in question was in jail at the time of their deaths (mother &amp; father). He had stolen many family heirlooms and pawned them off to pay for his next oxy-fix.
Since Probate had already closed (12/20), is it legal for the Probate court to, in essence, change the terms of the will? I have several witnesses willing to provide affidavits to the effect that my mother, the deceased, made it clear that I would get the real-estate and that the grandson in question would get nothing. Often, for a relatively short period of time after an estate is closed, it can be reopened and the judgment closing the estate can be set aside for good cause. This is also true in most other kinds of lawsuits. if I cannot beat this challenge, can I remove myself as beneficiary and have the Probate court declare that all 5 blood-related grandchildren will get equal shares? Removing yourself as a beneficiary is called filing a &quot;disclaimer&quot; in legalese. It means to refuse to accept a gift or inheritance. But you can't do that if you have already received any personal benefit from the estate and there are other statutory restrictions. For tax purposes, the deadline to do is nine months after the date of death, but the state law deadline could be different. What would happen if you do so depends upon the language of the will. Usually, gifts to a group of people are made &quot;per stirpes&quot; (also called &quot;by representation&quot;) which means that if a child predeceases or makes a timely disclaimer that their children share in the share that their parent would have received only. It is possible that it says something different, but that would be by far the most common provision. Under the original Probate interpretation, when the real-estate sold, I invested the proceeds in the stock market and there have been losses. If the challenge wins, will I have to come up with the delta--since the investment losses occurred under the original interpretation? If you had the authority to sell the real estate (which you probably did if a third-party title company went through with the transaction), then their claim would almost surely be limited to the proceeds of the real estate and not &quot;the delta&quot; unless the person entitled to take could show that you breached your fiduciary duties in the manner in which you invested the proceeds, for example, by investing all of it in a small number of penny stocks, rather than a diversified portfolio suitable for the purposes of the estate. Also, there is a question over whether the stock investment was made by you as the executor, and was subject to fiduciary standards, or was instead made after it was distributed to you outright. Further, there is the question of whether the estate can actually be opened if you gave notice of the closing of the estate to everyone who was entitled to it, including the grandchild, and whether the grandchild was entitled to it. You really need to hire a WV lawyer who handles probate cases at this point and would be doing yourself great harm by trying to represent yourself. Probate procedures are too arcane for you to reasonably have faith that you are doing it right for yourself.
You should really investigate the legally correct way to deal with the estate and the transfers of the assets; if not, you could have considerable legal and tax liability in the future with the bank (if they flag and investigate the transfers due to the death of the account holder and the size of the transfers) and the IRS (inheritance taxes), as well as other possible heirs who are not yet identified or notified of the death. Probate laws differ greatly according to jurisdiction, so either find a lawyer or Google for free or low cost legal help in your city/county/state in order to learn how to administer the estate in a legally sufficient way to protect everyone involved. Or go to the local county courthouse and inquire. It may not take much effort or cost much in legal fees, and it's a good investment of research and time to prevent legal and tax issues in the future.
In most places I imagine the issue would go before a probate judge who would attempt to determine the validity of each presented will, and if both were valid, then they would attempt to reconcile the disparities to the best of their ability. Broadly speaking, the process would look like this (I'm using UK law as an example): You die An individual is chosen to handle your affairs (executor or administrator [or possibly both depending on jurisdiction]) They choose a will to go off of (these steps could be reversed if the wills named different administrators, in which case each administrator would file for the grant of representation and consequently involve the probate judge earlier) Someone challenges and suggests using the other will (probably because they feel they're not getting what's theirs) A probate judge is involved The probate judge decides Appeals would be made to Court of Appeals and then to the Supreme Court That being said, every jurisdiction is different, and this is more of a template answer for English common law (and derivative courts), than an attempt to describe in detail any specific jurisdiction's procedures.
If you buy a house and your wife signs a quitclaim deed to you, that transfers to you whatever rights she has in the house. Similarly, if you and your wife sign an agreement that anything deposited in a particular bank account in your name would be your separate property, that would override the pre-nup as far as that account was concerned. Such an agreement could include a dollar limit per month or per year, or an explicit purpose, such as savings for a down payment. (It could be thought of as a gift to you of her share of any funds deposited.) Giving property to your parents or others with the understanding that it will be returned on your request might be seen as an attempt to evade the pre-nup, and a court might hold that the property was actually shared, if you ever do divorce. There might also be gift tax issues if the value is high enough. Whether asking your wife to agree to a quitclaim or any sort of agreement to modify the pre-nup would help or harm your marriage I cannot know, nor did you ask that. But I would think that for most people being open would work better than going behind a spouse's back. None of this should be taken as legal advice. I am not a lawyer.
No. This is not a provision that the testator or testatrix (i.e. the person writing a will) may waive in advance. But, the slayer statute does not get invoked unless an interested person invokes it in a probate proceeding after a death, and if no interested party wishes to invoke it, the will would be given effect anyway (just as it would in a case where no one could prove that someone was a slayer). Some states apply the slayer statute to will substitutes, and some do not. Similar laws that revoke dispositions upon divorce are pre-empted for interests in employee benefit plans subject to ERISA, but the U.S. Supreme Court has declined to resolve the issue. See Egelhoff v. Egelhoff, 532 U.S. 141, 152, 121 S.Ct. 1322, 149 L.Ed.2d 264 (2001) (pre-empting divorce revocation statutes, but declining to decide whether ERISA preempts state statutes forbidding a murdering heir from receiving property as a result of the killing) (cited as good law in Kennedy v. Plan Administrator, 555 U.S. 285 (2009) at footnote 14); Wasserman v. Schwartz, 364 N.J.Super. 399, 836 A.2d 828 (2001) (circumventing ERISA pre-emption). But see, Herinckx v. Sanelle, 281 Or.App. 869, (Oregon App. October 26, 2016) (Oregon slayer statute pre-empted by ERISA and reviewing variations in state slayer statutes). A notable comprehensive review of the California and common law rules regarding how the slayer statute applies in murder-suicide cases where the victim and suicidal killer own property in joint tenancy is found in In re Estate of Castiglioni, 47 Cal.Rptr.2d 288, 40 Cal.App.4th (Cal. App. 1995). The murder-suicide scenario is also addressed in depth in the case In re Gleason, 947 N.Y.S.2d 761, 36 Misc.3d 486 (Surrogate's Court 2012). Also, the definition of homicide that qualifies under the slayer statute sometimes covers only certain forms of homicide. For example, it might apply in cases of murder or manslaughter, but not in cases of negligent homicide. Alaska, for example, takes the minority position that unintentional homicides suffice to invoke the slayer statute, subject to a manifest injustice exception. In re Estate of Blodgett, 147 P.3d 702 (Alaska 2006).1 There is unsurprisingly little or no case law on an intentional waiver of these provisions, and assisted suicide would often not qualify as an eligible homicide although this would vary from state to state. But see, Colorado Proposition 106 (adopted by voters November 8, 2016) as it pertains to insurance benefits. A Sample Statute The currently effective section of the Colorado Revised Statutes (modeled on the Uniform Probate Code, which is highly influential to legislative drafters and in courts with common law rules, but is not actually adopted verbatim by a majority of states) which are applicable to this issue reads as follows: § 15-11-803. Effect of homicide on intestate succession, wills, trusts, joint assets, life insurance, and beneficiary designations (1) Definitions. As used in this section, unless the context otherwise requires: (a) "Disposition or appointment of property" includes a transfer of an item of property or any other benefit to a beneficiary designated in a governing instrument. (b) "Felonious killing", except as provided in subsection (7) of this section, is the killing of the decedent by an individual who, as a result thereof, is convicted of, pleads guilty to, or enters a plea of nolo contendere to the crime of murder in the first or second degree or manslaughter, as said crimes are defined in sections 18-3-102 to 18-3-104, C.R.S. (c) "Governing instrument" means a governing instrument executed by the decedent. (d) "Killer" is any individual who has committed a felonious killing. (e) "Revocable", with respect to a disposition, appointment, provision, or nomination, means one under which the decedent, at the time of or immediately before death, was alone empowered, by law or under the governing instrument, to cancel the designation in favor of the killer, whether or not the decedent was then empowered to designate himself or herself in place of his or her killer and or the decedent then had capacity to exercise the power. (2) Forfeiture of statutory benefits. An individual who feloniously kills the decedent forfeits all benefits with respect to the decedent's estate, including an intestate share, an elective-share, an omitted spouse's or child's share, the decedent's homestead exemption under section 38-41-204, C.R.S., exempt property, and a family allowance. If the decedent died intestate, the decedent's intestate estate passes as if the killer disclaimed his or her intestate share. (3) Revocation of benefits under governing instruments. The felonious killing of the decedent: (a) Revokes any revocable (i) disposition or appointment of property made by the decedent to the killer in a governing instrument, (ii) provision in a governing instrument conferring a general or nongeneral power of appointment on the killer, and (iii) nomination of the killer in a governing instrument, nominating or appointing the killer to serve in any fiduciary or representative capacity, including a personal representative, executor, trustee, or agent; and (b) Severs the interests of the decedent and killer in property held by them at the time of the killing as joint tenants with the right of survivorship or as community property with the right of survivorship, transforming the interests of the decedent and killer into tenancies in common. (4) Effect of severance. A severance under paragraph (b) of subsection (3) of this section does not affect any third-party interest in property acquired for value and in good faith reliance on an apparent title by survivorship in the killer unless a writing declaring the severance has been noted, registered, filed, or recorded in records appropriate to the kind and location of the property which are relied upon, in the ordinary course of transactions involving such property, as evidence of ownership. (5) Effect of revocation. Provisions of a governing instrument are given effect as if the killer disclaimed all provisions revoked by this section or, in the case of a revoked nomination in a fiduciary or representative capacity, as if the killer predeceased the decedent. (6) Wrongful acquisition of property. A wrongful acquisition of property or interest by a killer not covered by this section shall be treated in accordance with the principle that a killer cannot profit from his or her wrong. (7) Felonious killing; how determined - time limitations on civil proceedings. (a) Criminal proceedings. After all right to appeal has been waived or exhausted following the entry of a judgment of conviction establishing criminal accountability for the felonious killing of the decedent, such judgment conclusively establishes the convicted individual as the decedent's killer for purposes of this section. (b) Civil proceedings. Notwithstanding the status or disposition of a criminal proceeding, a court of competent jurisdiction, upon the petition of an interested person, shall determine whether, by a preponderance of evidence standard, each of the elements of felonious killing of the decedent has been established. If such elements have been so established, such determination conclusively establishes that individual as the decedent's killer for purposes of this section. (c) Time limitations on civil proceedings. (I) A petition brought under paragraph (b) of this subsection (7) may not be filed more than three years after the date of the decedent's death. (II) Notwithstanding any provision of subparagraph (I) of this paragraph (c) to the contrary, if a criminal proceeding is commenced in a court of this state or in another jurisdiction against an individual for the felonious killing of the decedent, a petition brought under paragraph (b) of this subsection (7) may be filed so long as the petition is filed no later than one year after all right to appeal has been waived or exhausted following an entry of a judgment of conviction, or a dismissal, or an acquittal in the criminal proceeding. However, if the death and the possible culpability of the slayer for the felonious slaying of the decedent is not known to the petitioner within the three-year period of limitations established pursuant to subparagraph (I) of this paragraph (c), the accrual of the action under paragraph (b) of this subsection (7) and the possibility of the tolling of the running of the three-year period of limitation under subparagraph (I) of this paragraph (c) shall be determined according to the principles of accrual and tolling established by case law with respect to similar limitations established under section 13-80-108, C.R.S. (d) Judgment of conviction. For the purposes of this subsection (7), a "judgment of conviction" includes a judgment of conviction on a plea of guilty or nolo contendere, or a judgment of conviction on a verdict of guilty by the court or by a jury. (8) Protection of payors and other third parties. (a) A payor or other third party is not liable for having made a payment or transferred an item of property or any other benefit to a beneficiary designated in a governing instrument affected by a felonious killing, or for having taken any other action in reliance on the beneficiary's apparent entitlement under the terms of the governing instrument, before the payor or other third party has received written notice as described in paragraph (b) of this subsection (8). A payor or other third party shall have no duty or obligation to make any determination as to whether or not the decedent was the victim of a felonious killing or to seek any evidence with respect to any such felonious killing even if the circumstances of the decedent's death are suspicious or questionable as to the beneficiary's participation in any such felonious killing. A payor or other third party is only liable for actions taken two or more business days after the payor or other third party has actual receipt of such written notice. Any form or service of notice other than that described in paragraph (b) of this subsection (8) shall not be sufficient to impose liability on a payor or other third party for actions taken pursuant to the governing instrument. (b) The written notice shall indicate the name of the decedent, the name of the person asserting an interest, the nature of the payment or item of property or other benefit, and a statement that a claim of forfeiture or revocation is being made under this section. The written notice shall be mailed to the payor's or other third party's main office or home by registered or certified mail, return receipt requested, or served upon the payor or other third party in the same manner as a summons in a civil action. (c) Upon receipt of the written notice described in paragraph (b) of this subsection (8), a payor or other third party may pay to the court any amount owed or transfer to or deposit with the court any item of property held by it. The availability of such actions under this section shall not prevent the payor or other third party from taking any other action authorized by law or the governing instrument. The court is the court having jurisdiction of the probate proceedings relating to the decedent's estate, or if no proceedings have been commenced, the court having jurisdiction of probate proceedings relating to decedents' estates located in the county of the decedent's residence. If no probate proceedings have been commenced, the payor or other third party shall file with the court a copy of the written notice received by the payor or other third party, with the payment of funds or transfer or deposit of property. The court shall not charge a filing fee to the payor or other third party for the payment to the court of amounts owed or transfer to or deposit with the court of any item of property, even if no probate proceedings have been commenced before such payment, transfer, or deposit. Payment of amounts to the court or transfer to or deposit with the court of any item of property pursuant to this section by the payor or other third party discharges the payor or other third party from all claims under the governing instrument or applicable law for the value of amounts paid to the court or items of property transferred to or deposited with the court. (d) The court shall hold the funds or item of property and, upon its determination under this section, shall order disbursement in accordance with the determination. A filing fee, if any, shall be charged upon disbursement either to the recipient or against the funds or property on deposit with the court, in the discretion of the court. (e) Upon petition to the court by the beneficiary designated in a governing instrument, the court may order that all or part of the property be paid to the beneficiary in an amount and subject to conditions consistent with this section. (9) Protection of bona fide purchasers; personal liability of recipient. (a) A person who purchases property for value and without notice, or who receives a payment or other item of property in partial or full satisfaction of a legally enforceable obligation, is neither obligated under this section to return the payment, item of property, or benefit nor is liable under this section for the amount of the payment or the value of the item of property or benefit. However, a person who, not for value, receives a payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who is entitled to it under this section. (b) If this section or any part of this section is preempted by federal law with respect to a payment, an item of property, or any other benefit covered by this section, a person who, not for value, receives the payment, item of property, or any other benefit to which the person is not entitled under this section is obligated to return the payment, item of property, or benefit, or is personally liable for the amount of the payment or the value of the item of property or benefit, to the person who would have been entitled to it were this section or part of this section not preempted. 1 The other four states and District of Columbia arguably adopting the minority position that negligent homicide invokes the slayer statute are as follows, from footnote 5 of the dissent to the Alaska Supreme Court's decision cited above. The District of Columbia slayer statute covers homicide resulting from grossly negligent conduct. See Turner v. Travelers Ins. Co., 487 A.2d 614, 615 (D.C.1985) (explaining that the slayer statute covers "unintentional killing derived from reckless or grossly negligent conduct"). Louisiana's slayer statute covers all criminal homicide. In re Hamilton, 446So.2d 463, 465 (La.App. 1984) (holding that slayer statute "was intended to include situations such as that presented by this case, where a beneficiary does not intentionally and feloniously cause the death of the insured but is nonetheless held criminally responsible for that death"). North Carolina's common law slayer rule prohibits inheritance after any wrongful homicide. Quick v. United Benefit Life Ins. Co., 287 N.C. 47, 213 S.E.2d 563, 567 (1975); Matter of Estate of Cox, 97 N.C.App. 312, 388 S.E.2d 199, 201 (1990). The continued application of this common law rule has been criticized in light of a slayer statute barring only intentional killers from inheriting. N.C. GEN. STAT. § 31A-3; see also generally Julie Waller Hampton, The Need for a New Slayer Statute in North Carolina, 24CAMPBELL L. REV. 295 (2002). Kentucky Revised Statute § 381.280 bars inheritance from those convicted of any felonious homicide. "Reckless homicide" is a felony. KRS § 507.050. Kentucky defines "reckless" as "a gross deviation from the standard of conduct that a reasonable person would observe." KRS § 501.020. Reckless homicide in Kentucky is therefore equivalent to criminal negligence in Alaska under AS 11.81.900(a)(4). Kansas Statute § 59-513 states that "[n]o person convicted of feloniously killing, or procuring the killing of, another person shall inherit." Involuntary homicide under Kansas law extends to "killing of a human being" committed recklessly, during a misdemeanor, or "during the commission of a lawful act in an unlawful manner." KS ST§ 59-513. This arguably could extend to grossly negligent conduct, especially as KS ST§ 21-3201 explains that "[t]he terms 'gross negligence,' 'culpable negligence,' 'wanton negligence' and 'wantonness' are included within the term 'recklessness' as used in this code." A federal district court has held that Kansas's slayer statute does not apply to negligent homicide, and there appear to be no state cases interpreting the scope of the statute or applying it to negligent homicide. Rosenberger v. Nw. Mut. Life Ins. Co., 176 F.Supp. 379, 382–83 (D. Kan. 1959) (explaining that "the intent of the legislature in enacting the statute must have been to give effect to the common-law rule"). The Kansas slayer statute is essentially unchanged since Rosenberger.
Living Wills A "living will" which is a "pull the plug" document that isn't customized to an individual's preferences (probably 95%+ done by lawyers are not customized anyway) through a service like LegalZoom is probably fine, although doing it yourself you don't get the same guidance about how to use it in practice and are more likely to screw up the formal execution of the document (e.g. not having the proper witnesses and notary observe the execution, or signing in the wrong place, etc.). But this document is usually prepared by a lawyer at little or no extra cost when you have your last will and testament done, so the cost of not screwing up the execution of it isn't great. And, lawyer drafted documents are less likely to be contested in practice, even when a non-lawyer on paper does everything right. Someone who does their own living will also often doesn't realize the important of also having medical powers of attorney and durable powers of attorney for property which are also necessary. Simple Wills A "simple will" is quite another matter. First, I've never met a layperson who doesn't think that they need no more than a "simple will" when in fact they often do, either because they are affluent, or have a blended family, or need testamentary trusts to manage property for children or young adults or black sheep or for tax purposes or because some family members are non-citizens. In general, a lot of the value of having a lawyer do the work comes from the lawyer's ability to spot issues that are exceptional and take you out of the "simple will" solution by itself. Often an issue spotted can result in larger monetary savings or a much smoother probate process. For example, a lawyer can identify cases where a probate proceeding in more than one state is likely to be required and suggest steps to avoid that expensive result. Second, many non-lawyers have a very hard time thinking about all possibilities. They do fine thinking about what rules make sense if everybody alive today is still alive when you die and you own what you own now when you die, but have a very hard time thinking about what would be appropriate if people predecease them or if their assets change substantially. Lawyers are much better at working through what is sensible in all of these possibilities, many of which won't happen, but some of which will happen. This matters because a will never expires unless it is expressly revoked. I've probated wills drafted during WWII in basic training (as required) before the decedent went off to war and never amended over the next 60 years, and it is very hard to be that thoughtful when you are doing it yourself. Third, it is very common for non-lawyers to use language that isn't obviously ambiguous or otherwise problematic until you are forced to apply it in practice. Estate planning lawyers are much more aware of these traps in the "moving parts" of an estate plan and of the possibilities that need to be provided for. To give one example, suppose that you leave your second wife your house, and leave the remainder of your estate to your children (her stepchildren). It is very easy to say this in a way that does not make clear whether she takes the house subject to the mortgage, or if the mortgage is a debt to be paid before the remainder of the estate is distributed to the children. Similar issues often come up in relation to tax elections and allocation of tax debts among heirs. Providing for the disposition of pets is another thing that few non-lawyers manage to do well. Lawyers, in contrast, generally draft in a manner that avoids these ambiguities and sets forth rules that are sensible, fair and will work in practice. The issues are even more fraught if businesses or investment real estate is involved. And, non-lawyers (even sophisticated, affluent business people) routinely fail to grasp that a Will only governs assets which don't have beneficiary designations and is subject to forced marital share and minimum family inheritance laws that act by operation of law as well as other "gap filling" presumptions that modify the literal meaning of certain kinds of language in a Will. Finally, screwing up the execution of a Will is very common, while lawyer drafted wills are much less likely to be contested. In my twenty years of experience as a lawyer who does estate planning as part of his practice and teaches lawyers, financial planners and paralegals about the topic, I find that the increased litigation costs associated with a do it yourself will (on average) is about ten times as large as the savings associated with doing it yourself. Sure, one time in three or four or five, somebody does their own will and doesn't screw it up and it all goes fine, but a majority of the time, do it yourself will drafters do something that would be considered malpractice if a lawyer did it. Pay lawyers now, or pay lawyers more later. Honestly, if all you need is a "simple will" and you are not willing to spend the $500-$2,000 to have a lawyer draft appropriate documents, and help you execute them, you are probably better off doing nothing at all and dying intestate (i.e. without a will so that the default provisions of the law apply), which often isn't a horrible result in a plain vanilla, unblended nuclear family that isn't particularly affluent.
As the article suggests, this is called adverse possession. This seems to have occurred because the original owner did not make use of the property, nor monitored for adverse possession. The reason this method of acquiring title exists is for a number of reasons, including the prudent use of land, as well as being analogous to a limitation on the time period during which a claim can be brought. It would be reasonably easily avoided if the original owner had made use of the property, or monitored it and took action to eject the adverse possessor prior to their fulfilment of the necessary conditions.
If the parents left the brother, let's call him Bob, full or partial ownership of the house in a will, or a long-term right of tenancy, then he has a right to live there. If they left no will, their property will be handled according to the local law on intestacy. The details vary from one Australian state to another, but if neither has a living spouse, their children will probably split the estate. This will probably include a share of the house, and so Bob will have a right to live there, unless a different division is made. Or the house could be sold and the proceeds split. Bob would not have a right to live there merely because he had been living there for some years, or even all his life. Nor would Bob have such a right if he had been caring for his parents, not for that reason alone. Everything depends on who winds up owning the house. Generally the owner or owners get to decide who may live in the house. A person could also be given or left a right of occupancy. A co-owner normally has a right to live in a house. But there is no automatic right of a child to live in his or her parents' house.