Mother's Will is it still valid now that house is sold?

[mustang54]

My mother is 85, and owns a house. In July 2008 my sister put Mom in a retirement independent apartment because she is mentally declining and could not maintain a home. She also put the house up for sale, and now I am told was sold and going to contract this week. Talk about fast.

Question: Mom had a will made out in February 2008, it stated that upon her death the house will sold and the proceeds will be divided equally among her 3 children. But now that Mom moved, sold the house, and the proceeds will go into a joint account with my sister's name, does the will have any legs?
What happens now if and when mom dies?

Also there are other bank accounts that are joint owned and no bank accounts are mentioned in the will. It is just a straight forward will. MaryJane, sister gets ALL the jewelry she is the executor, I am the co executor. I have a brother in Florida.

I just want to know, am I entitled to anything now that the scenario has changed?

Do I have the right to ask for a list of expenses if my sister tells us that she spent it all and there is nothing left?

Mom has social sec and pension and will only need aboubt 2500 from the proceeds each month. House sold for 385K so she will never spend all the proceeds, but my sister does not speak to either one of us and we are in the dark and my mother listens to my sister.

help

 

[lwpat]

In this scenario you can expect all of the money to be spent and you will never see a dime. In a joint account all the money will go to your sister. I strongly suggest that you contact an attorney and insist that the money be put in an account where both of you have to sign any checks. You will have to act fast. Once it is done you will be out and likely your mother also.

 

[mustang54]

so you are saying that the will is no longer valid since she sold her house and is still alive, even though it says the proceeds be split equally. What if I asked my mother to draw up another will stating that any funds that are jointly owned in any bank accounts must be shared equally upon her death, will that stand up in court?

 

[dee_dub]

No, the will is still valid. The part of the will dealing with that particular piece of property will be of no effect. The house/proceeds used to be a specific bequest; now, the proceeds become part of the general estate. If there are any proceeds left when your mom dies, they will form part of her general estate and will be distributed according to the terms of the will.

I think lwpat is dealing more with the question of "What will happen to the proceeds that go into the joint account?" A), your sister might spend all that money. B), when your mom dies, the joint account will transfer entirely to your sister, OUTSIDE the will. The joint account does not form part of the estate.

Assuming that the will deals with the general estate properly, your mom doesn't need to draw up a new will. She needs to make sure that the proceeds from the sale will a) not be dissipated before she dies, and b) will form part of the estate on her death. So she shouldn't put them into the joint account.

 

[mustang54]

TO Dee-Dub; okay the will states: " I hereby give,devise, and bequeth all the rest, residue and remainder of my property, both real and personal, of whatsoever kind and wheresoever situatated to my children, (names of 3 children) in equal shares, per stirpes. " Please explain this.

So, if the proceeds of the sale of the house go into an account with my sister's name on it, and when my mother dies, is my sister legally obligated to split the money in the account? She also gave my sister as Executrix the "fullest power of authority in all matters and questions to do all things which I might or could do if living, including without limitation complete power and authority to continue and carry on any business I may own at the time of my death, and to this end, I authorize my executrix and successor executor - which is me, to sell at public or private sale for cash or credit with or without security, mortgage, lease and dispose of all my property, both real and personal at such times and upon such terms and conditions as they may determine all without court order." ???????

What does that mean? Is the executrix in complete control?

I guess if I can't convince my mother to draw up an addendum that specifically says that the bank accounts joined with my sister will be split, we are at a loss.

Also, in NY, does the executrix get a fee?

If my mother goes into a nursing home within 5 years, I guess they will get it all anyway.
But in the meantime, my brother and I both feel that since we were mentioned in the will, we should be entitled to a share of the money when mom dies.

 

[lwpat]

The personal representative does get a fee for handling the estate. You can pretty well bet that there will be nothing left to split in the will. Your sister will likely see to that.

Actually that may be entirely unfair. Evidentially your sister is taking care of your Mom without any help or support from either of you. Maybe that is why she is not speaking. I have just seen so many cases where one child sticks the parent in a home and then takes the money and runs. Your sister may be doing the best she can in a very difficult situation.

 

[dee_dub]

That bit you quoted is the residual clause. It means that after all the debts of the estate are paid and the specific bequests are paid out, whatever remains will be distributed amongst the three siblings (or, should a sibling be deceased, to that person's descendants). In your scenario, it means that if any proceeds of the house actually become part of the estate, and is left over after all those payouts, it will be split amongst the three of you.

For the reasons given above, there are doubts about whether any of the proceeds will actually become part of the estate. If the funds go into an account with your sister's name on it, they don't become part of the estate. They become hers. Now, that's a presumption in law that can be overcome, and you might be able to convince a court that your sister holds the funds in that joint account in trust for the estate, but that will take some doing in court.

The executor is in complete control of selling the estate and collecting the proceeds. They are not in complete control of distributing the proceeds - they need to do that in accordance with the will.

If the proceeds go into a joint account, an addendum to the will will NOT work. The bank accounts that are held jointly between your mom and your sister will NOT form part of the estate, even if your mom says they should in her will. Not without a court battle, anyways. They will pass to your sister, as the other joint account-holder, directly on your mom's death. It has nothing to do with the will; that's the way joint accounts work. Whatever your mom says in her will about the funds will not be legally binding.

 

[mustang54]

actually, not true. my sister is a control freak and oversteps anyone in her way. i speak to my mother everyday. my sister just retired in June and did not want the responsibility of worrying about my mother in her home, so she 'tricked' her by telling her that she was going to an independent living apart for 30 days to just try it out and after 30 days she could come home. my mother bought into it. but cried all the time. I told my mother is she wants to go home, just let me know and I will pick her up. But she is so afraid of my sister getting angry she said, no I will just wait the month. But within the month, my sister without anyone knowing, cancelled the phone, newspaper, cable, forwarded mail to mom new address and put the house on the market with her girlfriend who is a broker. called in guy to clean out the house and attic, garage and threw out alot of things that belonged to me and my brother, and never asked us. After the month, mom said that she liked the place because meals were served and that was a problem living alone - cooking. So I offered to bring her furniture over since the apartment she was in had 'rental' furniture she she was only supposed to be there for a month. She said, yes, bring me my bedroom set, kitchen and living room. I set it all up and told my mother. My sister wanted to be first again, and hired a mover and had it done without even telling anyone, mom said she called her in the morning and said, just clean out your drawers, they are picking up the rental this morning and after lunch your furniture will be there. My sister is a one man band. Always has been. I told my mother, look if you really don't like it here, we can find you someplace else, or you know you are always welcome to stay with us. She doesn't want to live with anyone. I have been buying my mom cars for years, servicing them and just about a month ago she told me that she was done with driving and told me to just sell the car and get what I can for it. I got $1500 and gave it to her and said, put it towards your rent. I have been maintaining her house for 30 years. I put in a new cement driveway, a new roof a few years ago and new windows all around. I plow her driveway in the winter. I was there at least 3 or 4 times during the week just to check up on her and to see if she needed anything. She always knew I was available. My sister, her way of taking care of mom is to pick her up and take her out to a restaurant and drop her off. Last January, they came home around 7pm and the house smelled of gas. My sister called the gas company and they came within half hour. They could not determine where it was coming from, so they shut off the gas to the house. Which meant my mother had NO HEAT in January in New York. My sister left to go home and left mom in the house with no heat!!!! My mother calls me at 11PM and tells me this, and I said, I am coming over to pick you up, she said, no I am staying with my neighbor across the street, that is why I am calling you. I called my friend who is a plumber and is certified with the gas company the next morning at 7AM, he was there within 20 minutes. He found the problem, a leaky valve on the burner and replaced it. Also, he found, Mom left one of the range top knobs ON, and since it never ignited, she never thought about it. Well the gas was slowly seeping into the kitchen. I ALSO FIXED THIS the same day, called a repair guy in and he fixed it. AND, I paid for it all. Meanwhile, my sister came over and while my friend was repairing the burner she said to him, what are you doing? He told her and she said to him, I don't want it fixed, there's nothing wrong with this burner, and told him to leave. He said I can't I just bought this part and your brother is paying me to fix this so your mother can have heat and hot water. She left fuming. He called me and said, what do you want me to do? I said, Al, just fix it. The roof: plywood was rotted and had to be replaced, original 30 year old roof. Again, my sister said, why are you bothering, just leave it alone. So I don't think you really understand the WHOLE picture here. My sister may think she is not getting any help, but in reality she doesn't want any help. She dropped mom off because now that she is retired she wants to travel to see her children out of state and does not want the burden of worrying about mom. It is so much easier for her to just drop her off, but never ever thought about mom, or calling her brothers to ask what we think. Dealing with her is like dealing with an F5 tornado, no stopping and anything in its path is destroyed. So over the years everyone just avoids her. If my father were alive this would never be happening, this I know.
We have all tried to make Mom as comfortable as possible, and we don't know what the outcome will be. We just know that my sister wants to be in complete control and we know that she will just do what she wants. I just needed to know if my brother and I went to a lawyer and asked him to write a letter to her and request that the proceeds of the house be put into an account with more than her name and my mother's name, if that would be legally binding in someway down the road. There has to be a way to protect these assets, and my mother's wishes to give her three children a share of the money when she dies.

 

[dee_dub]

A letter from a lawyer is not legally binding in any way.

There is a way to protect these assets, and it is the way that has been urged on you several times: do not let the money go into a joint account with your sister`s name on it. If that happens, kiss the funds goodbye. Explain it to your mom: joint account = not part of will = sister gets whatever is in the account when mom dies. Take her to a lawyer who can explain the situation to her.

 

[mustang54]

Today I spoke to an attorney about this situation. He told me: that any bank account will supercede her Will, even if we draw up a separate codicil. As you said earlier, we need to put at least 3 names on the the account. BUT... my accountant told me today that the best way is to put the money into an annuity, which can be set up that she can get "x" amount of dollars transferred each month to her checking account to pay her bills, and have payable upon death that the money transfers to her 3 named beneficiaries, her 3 children. He said, this way, your mother gets whatever money she needs whenever she wants it, and when she dies 2 things, there is no probate, and no taxes. Plus she is protected because it will be in a tax differed annuity. Now the next step is to sell it to my mother so she understands that this is the right way to do it, and hopefully she does. Going to a bank and just depositing it I was told is not the way to do it. He is a financial advisor and I have known him for years and he told me that if I want, bring her in and he can explain why it is the best for everyone, tax wise, and the best for her whereby she is still complete control of her money. And he said, if she ever needs more than the allotted amount, she just has to call up and request it.
So, what do you think? Does this sound like a good idea????

 

[dee_dub]

Your attorney's advice is basically the same advice that was given here, I'm pleased to see. Your financial advisor's advice doesn't strike me as a "but" but rather as an "and". It has the benefit, as has been urged here, of keeping the funds out of your sister's hands. I don't know about the tax ramifications, but I'll take your financial advisor at his word. Sounds good to me.