Non probate assests

[Bob_]

Our dad had made our sister (his designate for power of attorney) as the primary benificiary of his IRA and the rest of us as the secoundary.

Our sister told us after he died that she was going to spilt it with us because that is what he wanted. Now she says it is all hers.

The will states that everything is to be split 3 ways "share and share alike" and that if any one gets anything before he dies or as a direct benificiary that it is to be counted as a part of thier third.

She is now claiming close to half of the estate.
I know that an IRA is a non probate assest but she said all along that he ment for it to be shared and the will states "share and share alike" and it should be counted as a part of her third.

Can the judge force her to keep her word or can the will be used to force her to share it?

 

[brian]

Originally posted by Bob
I know that an IRA is a non probate assest but she said all along that he ment for it to be shared and the will states "share and share alike" and it should be counted as a part of her third.

While the IRA is a non-probate asset it may be that from the language of the will, that distributions non-probate count towards distribution. Thus while the IRA may not be in issue as to the determination of whether you get a piece of the IRA, the will may be the determinant with regard to what percentage the heir gets due to the non-probate distribution.

I don't know, haven't seen the will, but the logic seems to make sense.

 

[Michael Wechsler]

Re: Re: Non probate assests

Originally posted by brian
While the IRA is a non-probate asset it may be that from the language of the will, that distributions non-probate count towards distribution. Thus while the IRA may not be in issue as to the determination of whether you get a piece of the IRA, the will may be the determinant with regard to what percentage the heir gets due to the non-probate distribution.

My understanding of non-probate assets is that they don't enter the equation because they may pass to the distributee independent of the will. For example, life insurance proceeds get paid directly to the beneficiary and may not need or use the will as a vehicle. They use the policy itself.

If the will makes it clear that a distribution pursuant to a life insurance proceeds will affect an heir's share in an estate then it seems apparent to me that this is what will happen. However, from what you quote the "share and share alike" provision might apply only to the assets of the estate.

If the amount in issue is $500,000 I would say to set up a consultation with an attorney who can hear your case in full, including analyze the specific issues that apply to your case rather than talking generally about law. If you want a referral feel free to send a message and specify the state you are in.