Can somebody fight a valid will? And how to help a spouse through a parent's death.

[AimeeM]

What are the chances of doing it successfully? Assuming that the aforementioned will was drafted by an attorney, notarized, etc - everything was done "right"?

 

A little back story...

While of course we hope it doesn't happen for a very, very long time, I'm trying to prepare myself, because I know my husband is going to be beside himself when the day comes. My FIL is 84 years old. They are pretty sure he has prostate cancer, but he will not allow further testing (and we support him in that, given his age). He still works daily, though, and is a strong man (private music teacher who also owns a music shop). He lives very far from us, but him and my husband are VERY close (they talk daily on the phone, and we all see him weekly on skype; we visit twice a year for extended visits).

My husband only has one sibling. My BIL is much younger than my husband (well, an 11 year age difference), so they didn't really grow up together. MIL died the day after giving birth to BIL. BIL is the "wild child" - he actually had to be sent to state care at one point, for beating up FIL and attempting to beat up his grandmother - he steals, is an alcoholic, and is a drug addict. My FIL tried his very best to keep him in counseling and therapies as a child, but BIL was expelled over and over from schools, etc. 

While he has never "disowned" BIL, he did make the very hard decision to not include him in the will. BIL only EVER shows up when he needs money, and quickly squanders those very large amounts on drugs, alcohol, etc. BIL has 5+ children, only one of whom we've ever met - he also keeps the children from FIL, which breaks FIL's heart. We aren't sure exactly how many children BIL has, and the ones we do know about, have 3+ different mothers. BIL hasn't contacted DH in many years. 

FIL, in his will, has left it up to my husband as to how much, when, and what is left to BIL's children. My husband does want to set up trusts for the children, but we can only do that for the children we know about, and I imagine we may have to get the mothers' consent?

Regardless, we KNOW that when the dreaded day does come, and FIL passes, BIL is going to raise cain. He WILL come in with fists flying, demanding "his inheritance". That is ALL he will care about (they've been through this already when their grandmother, who helped dad raise them after MIL's death, passed away).

My husband is going to be absolutely heartbroken when FIL passes. We all will be. FIL is the kindest, most generous, genuine man I know (other than DH). He's a doting father and grandmother. The last thing he needs is to worry about a legal fight, but in my gut, I honestly feel that there will be one. 

Is there any way to guard against that?

On another note, for those who have had parents pass away, what did you spouse do to help you get through it? We will have to travel and spend quite some time going through things, and my husband (who is generally very, very strong) admits that he doesn't know that he will be in any shape to do so, but the house... oh my - it has 3+ generations in it; old clothing, antiques, sentimental keepsakes brought by FIL and MIL from Italy when they immigrated... there is no way I know what to keep and what to what not to keep. 

 

Please, do not think me morbid. My parents are still pretty young, and even my grandparents are still alive (and my great grandmother). I've never had a close relative pass away, and I just want to know how to best be there for my husband, even in the midst of my own grief, because I know DH's grief will be MORE, kwim? I adore his father, who has been a father to me for so many years... but, still, my DH *is* his child, and has a lifetime of memories to cope with, on top of losing his another parent. 

 

We pray that we have many, many years with Christmas visits with FIL... but my FIL seems intent on making sure wills and things are signed the last couple times we've been up :(

[Anne]

First, I am so sorry for all of this - it is so hard!!

 

Has your dh discussed this with his dad? 

 

Did your dad discuss these details with the attorney who wrote the will?

 

Is this a very old will?  Has it been updated in the last decade or so?

 

Laws vary from state to state, so what is true in one state is not always true in another.  If your dh has concerns about this, it would probably be worth every penny for he and his dad to visit his dad's attorney together and discuss these issues.

 

:grouphug: :grouphug: :grouphug:

 

Anne

[5of5]

Couldn’t your FIL start gifting money to your DH now?  Also, what about setting up trust funds now?  It seems that even if the will is fought, the less money the estate has, the better.

 

I’m not a lawyer, but I would imagine it would take $$$ that BIL doesn’t have to fight the will.  I wonder if the main angle would be undue influence?

[AimeeM]

First, I am so sorry for all of this - it is so hard!!

 

Has your dh discussed this with his dad? 

 

Did your dad discuss these details with the attorney who wrote the will?

 

Is this a very old will?  Has it been updated in the last decade or so?

 

Laws vary from state to state, so what is true in one state is not always true in another.  If your dh has concerns about this, it would probably be worth every penny for he and his dad to visit his dad's attorney together and discuss these issues.

 

:grouphug: :grouphug: :grouphug:

 

Anne

It's a brand new will. It was only written about... 6 months ago, or so? It was drafted, signed, etc during our last visit. They did talk to an attorney (who also happens to be a casual friend of FIL), and he doesn't seem very concerned about it, but it's not something FIL is willing to really talk about either. It was very difficult for him to not include BIL, but in the end he decided he would rather have DH oversee everything, and for BIL's "portion" to be split amongst BIL's children, if we can find them all.

FIL will not discuss BIL anymore. We can't really bring it up again.

[craftymama]

I wish I had some wisdom to pass on.  I do remember when my grandmother died, the ones who had access to the house cleared a lot of things out before the out of town kids could get there.  So I would make sure BIL doesn't have access to the house before you can get there.  It sounds like there are a number of family treasures your DH may want to keep and take care of.

[AimeeM]

Couldn’t your FIL start gifting money to your DH now?  Also, what about setting up trust funds now?  It seems that even if the will is fought, the less money the estate has, the better.

 

I’m not a lawyer, but I would imagine it would take $$$ that BIL doesn’t have to fight the will.  I wonder if the main angle would be undue influence?

I'm sorry - what does "undue influence" mean?

 

FIL has been gifting DH money... he insisted on paying off our middle son's medical bills, for example, even though we had it taken care of (the hospital was more than happy to take monthly payments), and randomly sends checks.

There will still, however, be quite a bit in the estate. Also, the real estate - the houses are the biggies. And the assets. 

[happi duck]

(Hugs)

 

It's hard to think about this stuff. You are very kind to be thinking now of how to help your dh.

 

When my folks died it was a shock and everything was a mess. I wish someone had been prepared to help me.

 

I don't have time to give a full answer but...

Regarding the will: your fil's attorney should be able to help. He needs to know there is another son and more grandkids. Fil might need to leave a small amount to bil and his kids to show they were not forgotten.

 

Also, I hope your dh doesn't end up the one making decisions on what bil's kids get...too much potential for problems there. Maybe your fil could designate an amount to be split between bil's kids, however many.

 

(Hug)

 

Eta: just saw that the lawyer isn't concerned...that puzzles me

[AimeeM]

I wish I had some wisdom to pass on.  I do remember when my grandmother died, the ones who had access to the house cleared a lot of things out before the out of town kids could get there.  So I would make sure BIL doesn't have access to the house before you can get there.  It sounds like there are a number of family treasures your DH may want to keep and take care of.

My husband will definitely want to keep safe many things - but BIL lives less than an hour away, and we live 15+ hours away. Now, we could have FIL give us a key, because BIL doesn't have one and there would be, then, no way for BIL to access the house. If BIL gets his hands on the contents of the music store and the house, he WILL sell anything of value (he's done it before).

[AimeeM]

(Hugs)

 

It's hard to think about this stuff. You are very kind to be thinking now of how to help your dh.

 

When my folks died it was a shock and everything was a mess. I wish someone had been prepared to help me.

 

I don't have time to give a full answer but...

Regarding the will: your fil's attorney should be able to help. He needs to know there is another son and more grandkids. Fil might need to leave a small amount to bil and his kids to show they were not forgotten.

 

Also, I hope your dh doesn't end up the one making decisions on what bil's kids get...too much potential for problems there. Maybe your fil could designate an amount to be split between bil's kids, however many.

 

(Hug)

FIL will not discuss BIL any more :( He has left it up to my husband entirely. My husband has NO desire to keep out BIL's children - at all. We want them to know that even though FIL wasn't allowed to know them, he loved them, and a trust seems the only way to do that (after the fact). 

 

ETA: the attorney knows about BIL.

[AimeeM]

To be honest, I don't know if the attorney "isn't concerned" or if he simply knows that FIL can't be talked to about this without shutting down.

[5of5]

Again, I don’t know the legal details, but “undue influence†is when someone is coerced into making a will a certain way by someone who has a great deal of control or influence over the person.  I would imagine that it is very difficult to prove, and unless your FIL’s estate is worth millions, I would guess that the risk is small.

 

ETA: http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/0501_estate_probate.html

[Lanny]

I am not an Attorney, but I believe if someone in the USA wants to sue someone, and they have the money to do so, they can.

 

My belief, like that of a PP, is that your FIL should take care of this by writing a new Will, where he leaves what he wants to to your DH and your DC, and the rest in Trust accounts that your BIL's DC will receive after they are legally adults.

 

When I lived in Texas, and I was Single,  I paid an Attorney to write my first Will. I remember going over the Drafts, at home, several times, before it was ready for signing. There must be NOTHING ambiguous in a Will or Contract.

 

A valid Will can be written on a napkin, but I would not suggest that anyone do that.

 

[Elisabet1]

No. He can try, but it won't get him anywhere.

 

In my husband's case, FIL had a "stroke" under odd circumstances. Then, MIL produced a power of attorney, supposedly signed by him just days before the stroke, and notorized by her good friend. Then, she proceeded to re-write his will leaving everything to her biofamily and took my husband off as the executer. She claims she had the right because she had power of attorney. Of course, her friend notorized it, again.

 

Since she did file the incompetency well before redoing the will and had FIL declared incompetent, this new will will not stand up. Unfortunately, FIL will probably die before MIL. In which case, even under the old will, everything goes to MIL if she is still alive. But if MIL dies first, we have plenty to contest the will when FIL dies. My husband says we won't contest it because he hates that family and wants nothing to do with them. Fine. They are pretty disgusting people.

[Seasider]

I would see if the attorney could be given keys and be authorized to have locks changes upon fil's passing.

 

Also, if you have a copy of the will, you may want to hire another, unconnected attorney in your fil's state to have a look at it to check for loopholes.

 

ETA I would also set aside an amount of savings to cover a spur of the moment airplane ticket.

[northcoast]

I want to say I have heard of wills having a clause saying that if anyone contests the will, nothing will be gotten by that party".  You may consider consulting with an attorney to what your rights are or to find a legal way of protecting assets during the closing/transfer of the estate.   

[Orthodox6]

Couldn’t your FIL start gifting money to your DH now?  Also, what about setting up trust funds now?  It seems that even if the will is fought, the less money the estate has, the better.

 

 

 

Do not do this.  If the FIL ever might stand in need of Medicaid services, doing this wrecks all possibility.  There are other legal reasons, which I do not remember well enough to describe, which make this a poor choice.

[5of5]

I want to say I have heard of wills having a clause saying that if anyone contests the will, nothing will be gotten by that party".  

 

It sounds like this isn't much protection.  From a Wikipedia article:

 

"However, since this clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy."

 

See: http://en.wikipedia.org/wiki/Will_contest

[Orthodox6]

I'm sorry - what does "undue influence" mean?

 

FIL has been gifting DH money... he insisted on paying off our middle son's medical bills, for example, even though we had it taken care of (the hospital was more than happy to take monthly payments), and randomly sends checks.

There will still, however, be quite a bit in the estate. Also, the real estate - the houses are the biggies. And the assets. 

 

Please consult an eldercare attorney about these gifts.  They truly may cause trouble later on.

 

I'm sorry to be the one to mention this.  The topic has come up with my own father's eldercare attorney.  We all are toeing the line strictly, to prevent problems after my father's death.

[Corraleno]

Your FIL could set up a living trust and put his assets (cash, business, real estate, etc.) into it, with your DH listed as successor trustee. That way, he would still retain control over it in his lifetime, but after he dies your husband would take over and distribute the contents as your FIL wished. None of the assets in the trust would go through probate. He would still need a will, as a back up to cover anything that is not specifically in the trust, but presumably there would not be much outside of the trust, so not worth your BIL trying to challenge the will.

[bettyandbob]

Does the will specifically state that FIL knows he is leaving out BIL.

 

My understanding is that the way to make it clear that you intent for someone not to recieve anything is you must state that in the will. You could also state something like "BIL is to recieve $1.00 from my estate."

 

Wills should not be vague. You state FIL would like to leave something to BILs children, but you don't know who they are. Without knowing who the children are, if they are mentioned at all the will is really left open to be contested. You'd need a very good estate attorney to properly write a will around that issue.

[amyx4]

I have personal experience with the house being cleaned out while the rest of the family was at the funeral home. Iit's very hard to get those items back. In this case it was all sentimental stuff done to inflict hurt. I'd consider hiring security for the house while your dh is at the hospital when fil is dying.

[AimeeM]

Again, I don’t know the legal details, but “undue influence†is when someone is coerced into making a will a certain way by someone who has a great deal of control or influence over the person.  I would imagine that it is very difficult to prove, and unless your FIL’s estate is worth millions, I would guess that the risk is small.

 

ETA: http://www.americanbar.org/newsletter/publications/law_trends_news_practice_area_e_newsletter_home/0501_estate_probate.html

It is worth quite a bit.

And no, my husband certainly didn't coerce him (I know you didn't say that, but if I'm understanding "undue influence", I would assume that would be BIL's argument?). My husband would really rather NOT have to make these decisions, but he also understands that his father is unable to do so (emotionally - he very much loves BIL, as do we).

I do want to note that Tony does have the ability to give BIL some money, and I think he WILL, but I think he may only give it to the necessary people (i.e. a rehab, a college, etc) and not directly TO BIL.

[AimeeM]

I would see if the attorney could be given keys and be authorized to have locks changes upon fil's passing.

 

Also, if you have a copy of the will, you may want to hire another, unconnected attorney in your fil's state to have a look at it to check for loopholes.

 

ETA I would also set aside an amount of savings to cover a spur of the moment airplane ticket.

Giving the attorney keys is a great idea.

We will have plenty to cover spur of the moment plane tickets.

We do have a copy of the will, and I will suggest to DH that he takes it to our attorney (probably a good idea regardless, right?).

[Trilliums]

My FIL passed away last year and DH is dealing with the estate.   It has turned into a horrible mess, unfortunately.  

 

The will does have the clause stating that anyone who contests the will is automatically excluded from inheriting.  I saw the previous post mentioning that this kind of clause may serve limited practical purpose, but in DH's case, it has helped to calm down family members.

 

Can the will state that some portion is left to the BIL's offspring, left in a trust until a certain age? 

 

BTW, I now no longer think these kinds of discussions are morbid!  Going through it now, there is so much I wish DH had discussed with his dad.  

 

[AimeeM]

Please consult an eldercare attorney about these gifts.  They truly may cause trouble later on.

 

I'm sorry to be the one to mention this.  The topic has come up with my own father's eldercare attorney.  We all are toeing the line strictly, to prevent problems after my father's death.

I will definitely ask, but these are generally gifts. What problems could it cause? Any services, and geriatric services, FIL receives are very aware of what sits in his accounts, etc. 

[gardenmom5]

What are the chances of doing it successfully? Assuming that the aforementioned will was drafted by an attorney, notarized, etc - everything was done "right"?

 

 

While he has never "disowned" BIL, he did make the very hard decision to not include him in the will.

 

FIL, in his will, has left it up to my husband as to how much, when, and what is left to BIL's children. My husband does want to set up trusts for the children, but we can only do that for the children we know about, and I imagine we may have to get the mothers' consent?

Regardless, we KNOW that when the dreaded day does come, and FIL passes, BIL is going to raise cain. He WILL come in with fists flying, demanding "his inheritance". That is ALL he will care about

The last thing he needs is to worry about a legal fight, but in my gut, I honestly feel that there will be one. 

Is there any way to guard against that?

 

 

:grouphug:  btdt - and we're currently waiting for the statute of limitations to run out on being sued.  we've received threatening letters from an heir.  (he even got a military legal aid office - not an actual lawyer - to send us threatening letters.  considering I know for a fact he has engaged lawyers on other things within this time frame, I'm positive he can't find one to represent him in this. it is still very stressful.)

 

when we were having my mother's trust drawn up -  I asked for, and received, a clause the lawyer has come to refer to as the "super duper nasty clause".  I wanted something that would control out-of-control heirs. (I had significant reason to believe a sibling would cause problems.  I wish I had been "merely" paranoid.)  iow: anyone causing trouble is cut off, and treated as though they had no heirs.  oh- and *they* get to pay all the legal bills the estate incurs fighting their claim, and anything they've received from the estate has to be paid back.  with interest.  (and while that might not actually be collected, it is still a nice sword of damacles . . . )   a GOOD estate lawyer can do this, according to the estate laws of your jurisdiction. 

 

if you truly expect your bil to cause trouble, I would strongly urge you to find a good estate lawyer to handle his trust. it will be worth the money in the long run even if all it does it reduce your dh's stress levels at a time when he should be able to just mourn the loss of his father and moving on with life.

 

they also have to find a lawyer who is willing to take their case. do they have legitimate standing? what is the likelihood of winning - and most important for the lawyer?  are they likely to get paid?  even the most unscrupulous lawyer will not take a case if they aren't going to be paid.  it's simply not worth their time.

 

as for your bil's children.  money can be placed in the trust specific for them.  a lawyer could also give you better information on how to handle potentially unknown children.  it can also have conditions for which it may be used prior to a certain age.  e.g. only education, etc. only.  not just 'cause they want to go blow it on something.  usually heirs are not given free reign over inherited money to do with as they please before 25 or even 30.  usually after the age of sensibility has hopefully been achieved  . . . 

 

dh's biggest help was being the executor of my mother's estate.  he's dealt with sobs in his employment in very adversarial settings without blinking - so he took over dealing with my sibling, so I wouldn't have to.  (it's pathetic when after the death of a parent you want a get-away to recover from dealing with an obnoxious sibling as opposed to coming to terms with the parent's death . . . . )

I had already moved my mother into a setting where we had to get rid of much of her stuff.   so, there wasn't much left.

 

[AimeeM]

Your FIL could set up a living trust and put his assets (cash, business, real estate, etc.) into it, with your DH listed as successor trustee. That way, he would still retain control over it in his lifetime, but after he dies your husband would take over and distribute the contents as your FIL wished. None of the assets in the trust would go through probate. He would still need a will, as a back up to cover anything that is not specifically in the trust, but presumably there would not be much outside of the trust, so not worth your BIL trying to challenge the will.

Ah. I have no clue how this works, but it definitely sounds like something worth looking into. Right now Tony's main concern is being able to get to the sentimental things and save them before BIL could get there and "cash it out"; his grandmother's clothing, crucifixes, heirloom jewelry, certain instruments his father loved, etc.

[Orthodox6]

Does the will specifically state that FIL knows he is leaving out BIL.

 

My understanding is that the way to make it clear that you intent for someone not to recieve anything is you must state that in the will. You could also state something like "BIL is to recieve $1.00 from my estate."

 

Wills should not be vague. You state FIL would like to leave something to BILs children, but you don't know who they are. Without knowing who the children are, if they are mentioned at all the will is really left open to be contested. You'd need a very good estate attorney to properly write a will around that issue.

 

Yes.  Specific names are required.

 

Still banging the drum here about the necessity of an eldercare attorney.  We would be sunk-and-lost without the one my dad has been using.  We do not have any "problem people" in our picture.  The many tasks and issues simply are complex and beyond laypeople's time and knowledge base. 

[Orthodox6]

I will definitely ask, but these are generally gifts. What problems could it cause? Any services, and geriatric services, FIL receives are very aware of what sits in his accounts, etc. 

 

I am not avoiding your questions, but believe that an experienced eldercare attorney is the best resource for you regarding both state and federal laws.  He or she will relieve your family of so many frustrations and anxieties, as well as will know the pertinent laws and how they would apply in your specific case.

[gardenmom5]

even if you don't worry about a disgruntled family member - thieves love to read the obituaries and clean out houses during the funeral.

 

having someone there is always a good idea.

I have personal experience with the house being cleaned out while the rest of the family was at the funeral home. Iit's very hard to get those items back. In this case it was all sentimental stuff done to inflict hurt. I'd consider hiring security for the house while your dh is at the hospital when fil is dying.

 

[gardenmom5]

because you DO have a problem relative - do not try and do this on your own.  engage a GOOD and experienced lawyer to do this.

Ah. I have no clue how this works, but it definitely sounds like something worth looking into. Right now Tony's main concern is being able to get to the sentimental things and save them before BIL could get there and "cash it out"; his grandmother's clothing, crucifixes, heirloom jewelry, certain instruments his father loved, etc.

 

[AimeeM]

because you DO have a problem relative - do not try and do this on your own.  engage a GOOD and experienced lawyer to do this.

Should we do this in FIL's state?

 

There is one kicker here. The attorney would have to be willing to come to FIL. For the past 30 years, my FIL has refused to leave his street - his music store is a across the street from his house, his attorney is in an office next to his music store, etc. He has groceries brought to him. He employs a doctor willing to make house visits.

In other words, he will not GO to an attorney - we will have to get one to come to him.

[Orthodox6]

Ah. I have no clue how this works, but it definitely sounds like something worth looking into. Right now Tony's main concern is being able to get to the sentimental things and save them before BIL could get there and "cash it out"; his grandmother's clothing, crucifixes, heirloom jewelry, certain instruments his father loved, etc.

 

Specific items should be lined-out in the will.  My parents were very clear about valuable personal property.  Their wills stipulate what is for my brother, what is for me, what is for my four children, and what is to be left up to the decision-making of my brother and me together. 

[AimeeM]

Yes.  Specific names are required.

 

Still banging the drum here about the necessity of an eldercare attorney.  We would be sunk-and-lost without the one my dad has been using.  We do not have any "problem people" in our picture.  The many tasks and issues simply are complex and beyond laypeople's time and knowledge base. 

So an eldercare attorney and an experienced will/trust attorney?

[gardenmom5]

it very much depends upon how the clause is worded.  the one in my mother's trust was very explicit - written by a very experienced trust-estate attorney (not some diy 'trust' off the internet), and I have good reason to believe is the only thing that has controlled a sibling.

 

It sounds like this isn't much protection.  From a Wikipedia article:

 

"However, since this clause is within the will itself, a successful challenge to the will renders the clause meaningless. Many states consider such clauses void as a matter of public policy."

 

See: http://en.wikipedia.org/wiki/Will_contest

 

[5of5]

I just want to second what a PP said about looking into a living trust.  It sounds like that may address a number of issues; however, it would be something new & additional that your FIL would have to have set up.

[AimeeM]

even if you don't worry about a disgruntled family member - thieves love to read the obituaries and clean out houses during the funeral.

 

having someone there is always a good idea.

Would we simply hired insured security to be there? I know the neighbors would do what they could - FIL has been there for over 70 years and is a generous staple in an area that has otherwise become pretty rough over the years, but if necessary, I imagine we could find experienced security.

[gardenmom5]

yes - it should be the state in which your fil resides.  an attorney there knows the laws that would be applicable.

 

you might be able to find a good attorney willing to come to him - but you would pay for it.   I would NOT rely upon a regular/general attorney to do this effectively.  just like in medicine some things you want a specialist and not a general practitioner.

Should we do this in FIL's state?

 

There is one kicker here. The attorney would have to be willing to come to FIL. For the past 30 years, my FIL has refused to leave his street - his music store is a across the street from his house, his attorney is in an office next to his music store, etc. He has groceries brought to him. He employs a doctor willing to make house visits.

In other words, he will not GO to an attorney - we will have to get one to come to him.

 

 

[5of5]

it very much depends upon how the clause is worded.  the one in my mother's trust was very explicit - written by a very experienced trust-estate attorney (not some diy 'trust' off the internet), and I have good reason to believe is the only thing that has controlled a sibling.

 

But in your case, did the sibling have much to lose in contesting the will?  If the person was written almost completely out of the will (gets $1), what threat would such a clause pose?  It also must be state dependent.

[Orthodox6]

So an eldercare attorney and an experienced will/trust attorney?

 

One-and-the-same person.  Get referrals and check out the candidates yourself. 

 

Our attorney has handled revisions to my father's will.  (The original wills were done by a "generic lawyer" in their previous town.)  Legal papers of my mother's cannot be revised because she has advanced Alzheimers.  My father's medical power-of-attorney, and his business power-of-attorney both have been updated.  The attorney successfully navigated the minefield of the U.S. government bureaucracy, to enable my mother to receive Medicaid services.  He will do the same for us, should my father reach the need of living other than with us.  (Dad is 92.)  This attorney has explained what, financially, my father may and may not do with regard to "gifts".  He has discussed with us the choices among trusts and other arrangements, allowing Dad to make his own decisions.  My father has spent money for these services, to be sure.  The alternative of using people of lesser caliber and of lesser knowledge/experience undoubtedly would result in a greater loss of money in the long run, and open the door for all manner of problems. 

 

On a side note, if your father is a U.S. military veteran, avoid the clamourous "sharks" who will make the wildest claims and try to sucker your father into financial arrangements that benefit themselves, rather than benefit your father.  This is too complicated a scam for me to go into it here.  Our current attorney does not stoop to this.

[AimeeM]

yes - it should be the state in which your fil resides.  an attorney there knows the laws that would be applicable.

 

you might be able to find a good attorney willing to come to him - but you would pay for it.   I would NOT rely upon a regular/general attorney to do this effectively.  just like in medicine some things you want a specialist and not a general practitioner.

I agree. I don't think finding an attorney to come will be very difficult. We are trying to find a dentist who will come to him, but it doesn't seem to be available (even though he's been able to have almost all of his medical care done from the house) :P

[Pawz4me]

In your shoes the first thing I would do is consult an attorney who specializes in wills and estates.  Have him/her review FIL's will.  That's assuming that the attorney who drew up the will was more of a general practice type attorney.  Most attorneys will be willing to come to your FIL, but they will charge for travel time.

 

And I do not think having a clause in the will that says anyone who contests it is automatically excluded is legal.  It's possible it could vary from state to state, but in general I don't believe you can take away anyone's right to sue like that.  I could be wrong, though.  I worked as a legal assistant/paralegal for many years, but I was down the hall from the wills/estates people and only picked up bits and pieces.  It's certainly not something I'd personally put much faith in, though.

 

And as far as can anyone contest a will -- Yes.  Of course.  As the saying goes "anybody can sue anyone for anything."  Whether a suit will go anywhere is another matter.

[AimeeM]

One-and-the-same person.  Get referrals and check out the candidates yourself. 

 

Our attorney has handled revisions to my father's will.  (The original wills were done by a "generic lawyer" in their previous town.)  Legal papers of my mother's cannot be revised because she has advanced Alzheimers.  My father's medical power-of-attorney, and his business power-of-attorney both have been updated.  The attorney successfully navigated the minefield of the U.S. government bureaucracy, to enable my mother to receive Medicaid services.  He will do the same for us, should my father reach the need of living other than with us.  (Dad is 92.)  This attorney has explained what, financially, my father may and may not do with regard to "gifts".  He has discussed with us the choices among trusts and other arrangements, allowing Dad to make his own decisions.  My father has spent money for these services, to be sure.  The alternative of using people of lesser caliber and of lesser knowledge/experience undoubtedly would result in a greater loss of money in the long run, and open the door for all manner of problems. 

 

On a side note, if your father is a U.S. military veteran, avoid the clamourous "sharks" who will make the wildest claims and try to sucker your father into financial arrangements that benefit themselves, rather than benefit your father.  This is too complicated a scam for me to go into it here.  Our current attorney does not stoop to this.

He is not a veteran - he never served. 

 

Okay, so if the same attorney can serve as eldercare and estate/trust/will, that should be pretty easy. I do believe that the attorney that was used IS estate, but I'm not *positive*. I know he spent a very long time going over everything.

[Um_2_4]

This is based on dealing with both my parent's wills and some relatives who were in similar situations as your BIL:

 

Your FIL could set up a living trust and put his assets (cash, business, real estate, etc.) into it, with your DH listed as successor trustee. That way, he would still retain control over it in his lifetime, but after he dies your husband would take over and distribute the contents as your FIL wished. None of the assets in the trust would go through probate. He would still need a will, as a back up to cover anything that is not specifically in the trust, but presumably there would not be much outside of the trust, so not worth your BIL trying to challenge the will.

 

DO THIS (bolded) if at all possible and take some steps to secure the house (an alarm maybe). Might be a good idea if he lives alone just in case he fell and hurt himself (some alarms have those pendants that you can wear and summon help).

I was across the country when my mother died and by the time I got there lots was missing (jewelry, $ , Etc).

 

Does the will specifically state that FIL knows he is leaving out BIL.

My understanding is that the way to make it clear that you intent for someone not to recieve anything is you must state that in the will. You could also state something like "BIL is to recieve $1.00 from my estate."

Wills should not be vague. You state FIL would like to leave something to BILs children, but you don't know who they are. Without knowing who the children are, if they are mentioned at all the will is really left open to be contested. You'd need a very good estate attorney to properly write a will around that issue.

I have to leave out some blood relations from my will and I was advised to be specific with names (birth dates if known) otherwise it was too vague.

I think not listing the names of the kids and amount to be left would be leaving things too vague and they are more likely to end up in court. I understand he wants to help the kids, but maybe leave that part out and trust your DH to help the kids out IF they are found and it is verified (DNA) that they are related. Otherwise I can see this being dragged out in court as people come forward with kids and DNA testing follows and the estate could last years.

 

 

I have personal experience with the house being cleaned out while the rest of the family was at the funeral home. Iit's very hard to get those items back. In this case it was all sentimental stuff done to inflict hurt. I'd consider hiring security for the house while your dh is at the hospital when fil is dying.

 

^^ Yes still don't have my mom's pearl ring....

 

Should we do this in FIL's state?

 

There is one kicker here. The attorney would have to be willing to come to FIL. For the past 30 years, my FIL has refused to leave his street - his music store is a across the street from his house, his attorney is in an office next to his music store, etc. He has groceries brought to him. He employs a doctor willing to make house visits.

In other words, he will not GO to an attorney - we will have to get one to come to him.

 

You can easily find an attorney to come to him, especially eldercare attorneys as many of their clients may be in homes, etc. There are ways to deal with this if your FIL will not discuss BIL. Maybe suggest that a will that is too vague maybe unenforceable and find another lawyer to help with a trust and will. The family friend sounds to relaxed about this to be honest.

[Annie G]

Who is the executor of FIL's estate? Because that person will likely need to be the one to secure the house and prevent anyone from taking anything.  If dh is the executor, I would suggest you talk to an attorney now to find out what can/can't be done when FIL passes away. In addition, since FIL is evidently ill, does anyone such as your dh have power of attorney to make medical decisions in case FIL cannot? 

 

Sadly, these are the things that we have to face when our parents age, and especially when we live far away from them. 

[AimeeM]

Who is the executor of FIL's estate? Because that person will likely need to be the one to secure the house and prevent anyone from taking anything.  If dh is the executor, I would suggest you talk to an attorney now to find out what can/can't be done when FIL passes away. In addition, since FIL is evidently ill, does anyone such as your dh have power of attorney to make medical decisions in case FIL cannot? 

 

Sadly, these are the things that we have to face when our parents age, and especially when we live far away from them. 

Yes, DH is executor. Referencing Um2, upthread, there is an alarm in the house (DH insisted on it years ago). I will have him visit the attorney, or have the attorney come to us, when we are up there in a couple months. 

 

Yes, DH has medical power of attorney, and it is written so that FIL's wishes regarding end of life care are specified. If DH is unable to make the decisions, I'm listed as medical power of attorney after DH.

[Orthodox6]

Yes, DH is executor. Referencing Um2, upthread, there is an alarm in the house (DH insisted on it years ago). I will have him visit the attorney, or have the attorney come to us, when we are up there in a couple months. 

 

Yes, DH has medical power of attorney, and it is written so that FIL's wishes regarding end of life care are specified. If DH is unable to make the decisions, I'm listed as medical power of attorney after DH.

 

You also need business power-of-attorney.  Your FIL's checking account(s) and other accounts may need to be altered to allow your husband (and/or you) access without restriction.  If there are papers for a burial plot, for insurance policies, for anything significant, you need copies of, and access to, all of these.  If there is a bank lock box, you need permission to access the contents.  If there are passwords to any of these accounts, and/or to his computer, you need those passwords.

[Corraleno]

Ah. I have no clue how this works, but it definitely sounds like something worth looking into. Right now Tony's main concern is being able to get to the sentimental things and save them before BIL could get there and "cash it out"; his grandmother's clothing, crucifixes, heirloom jewelry, certain instruments his father loved, etc.

 

You can include those sorts of items in a living trust as well. Basically the living trust becomes the "owner" of everything you list as part of it, and your FIL would be the trustee during his life, with your DH named as successor trustee. If it becomes apparent at some point that the end is not far off, he can proactively make your DH trustee before he dies, so your DH would be able to remove valuable items from the house, sell real estate, manage the business, etc., during the time that your FIL was still living but not really able to manage things himself.

 

You do have to change the deeds (e.g. the title to the house would need to be changed to the John Doe Living Trust, or whatever, versus just John Doe), which involves some paperwork, but it means that whoever is trustee of the trust has control over everything in it, and you don't have to go through probate with any of it.

 

Also, it's possible for your FIL to set up trusts for the children of your BIL, with your DH as trustee and with whatever stipulations he wants (or that his attorney recommends) in terms of the use of the money, age at which the children get it, etc., and to initially fund the trusts with just $1. Then when he dies, your DH would be able to fund the trusts out of your FIL's assets.

[AimeeM]

You also need business power-of-attorney.  Your FIL's checking account(s) and other accounts may need to be altered to allow your husband (and/or you) access without restriction.  If there are papers for a burial plot, for insurance policies, for anything significant, you need copies of, and access to, all of these.  If there is a bank lock box, you need permission to access the contents.  If there are passwords to any of these accounts, and/or to his computer, you need those passwords.

DH is listed on all of FIL's accounts, and has access to all papers. Is that good enough, or does he need legal business power-of-attorney as well (written)?

[AimeeM]

You can include those sorts of items in a living trust as well. Basically the living trust becomes the "owner" of everything you list as part of it, and your FIL would be the trustee during his life, with your DH named as successor trustee. If it becomes apparent at some point that the end is not far off, he can proactively make your DH trustee before he dies, so your DH would be able to remove valuable items from the house, sell real estate, manage the business, etc., during the time that your FIL was still living but not really able to manage things himself.

 

You do have to change the deeds (e.g. the title to the house would need to be changed to the John Doe Living Trust, or whatever, versus just John Doe), which involves some paperwork, but it means that whoever is trustee of the trust has control over everything in it, and you don't have to go through probate with any of it.

 

Also, it's possible for your FIL to set up trusts for the children of your BIL, with your DH as trustee and with whatever stipulations he wants (or that his attorney recommends) in terms of the use of the money, age at which the children get it, etc., and to initially fund the trusts with just $1. Then when he dies, your DH would be able to fund the trusts out of your FIL's assets.

If the deeds already list my husband, would those still need to be changed?