Home ownership question.....

[rowz]

Greetings from NJ.

A married couple got a divorce in 1987. In the Divorce Decree the Property Settlement Agreement states that they were to sell the marital home and split the proceeds.
The woman of the house was allowed use & occupancy until it was sold and was directed to maintain it in the appropriate manner.

The house was briefly marketed a couple of times over the years, remained unsold and the occupant stayed there paying all costs.

The Deed titles the property [exactly as written] as "John Doe & Mary Doe, husband & wife". Despite the divorce and the years, the deed was never altered.
Is this [still?] "Tenants by the Entirety"?

Along this time-line to 2004, the husband in the scenario dies.
The mother passes in 2006.

Did this property go to the wife at the passing of the husband, or could he have legally willed his share to someone else?

Many thanks for your input.

 

[mistoffolees]

Greetings from NJ.

A married couple got a divorce in 1987. In the Divorce Decree the Property Settlement Agreement states that they were to sell the marital home and split the proceeds.
The woman of the house was allowed use & occupancy until it was sold and was directed to maintain it in the appropriate manner.

The house was briefly marketed a couple of times over the years, remained unsold and the occupant stayed there paying all costs.

The Deed titles the property [exactly as written] as "John Doe & Mary Doe, husband & wife". Despite the divorce and the years, the deed was never altered.
Is this [still?] "Tenants by the Entirety"?

Along this time-line to 2004, the husband in the scenario dies.
The mother passes in 2006.

Did this property go to the wife at the passing of the husband, or could he have legally willed his share to someone else?

Many thanks for your input.

Good example of why people shouldn't leave loose ends.

The ex-husband was entitled to whatever portion of the proceeds the divorce decree states. If the home had not been sold, his estate should have forced the sale at the time of his death. The equity in the home is like any other asset - it would have been part of his estate and his executor's job to get it.

However, there's now a different issue. His estate will have to worry about statute of limitations. Since his estate should have taken action in 2004, I'm not sure if the statute of limitations precludes it taking action now. I would bet that it does unless they just discovered it or if fraud occurred.

I would see an attorney with all the details to see if there's any hope of recovery.

 

[LdiJ]

Greetings from NJ.

A married couple got a divorce in 1987. In the Divorce Decree the Property Settlement Agreement states that they were to sell the marital home and split the proceeds.
The woman of the house was allowed use & occupancy until it was sold and was directed to maintain it in the appropriate manner.

The house was briefly marketed a couple of times over the years, remained unsold and the occupant stayed there paying all costs.

The Deed titles the property [exactly as written] as "John Doe & Mary Doe, husband & wife". Despite the divorce and the years, the deed was never altered.
Is this [still?] "Tenants by the Entirety"?

Along this time-line to 2004, the husband in the scenario dies.
The mother passes in 2006.

Did this property go to the wife at the passing of the husband, or could he have legally willed his share to someone else?

Many thanks for your input.

Whoever it is that has in interest in this situation probably needs to consult an attorney. In my opinion, the wife inherited when the husband died, and the wife's heirs inherited when she died.

However, I could be completely wrong on that....which again is why I think that the interested party needs to consult an attorney.

 

[mistoffolees]

Whoever it is that has in interest in this situation probably needs to consult an attorney. In my opinion, the wife inherited when the husband died, and the wife's heirs inherited when she died.

If I'm reading this correctly (the 2004 death was the ex-husband who owned the property and the 2006 death was the ex-wife who owned the property), I don't think that's likely. They got divorced in 1987 and then he died in 2004. Why would the ex-wife inherit the ex-husband's equity? It should have gone to his estate (unless he had a will which specified otherwise). (if the 2006 death was his second wife - then his equity would have gone to his second wife on his death and then to her estate on her death. But there's nothing there to indicate that he remarried, so I am assuming this didn't happen).

In any event, his heirs need an attorney they need an attorney. Even if they were all still alive, figuring out who is entitled to what would be a nightmare. With the deaths - and 4 years elapsed since his death, it's going to be even more complicated.

Note to others. DO NOT DO THIIS. Settle the property division at the time of the divorce. Letting it drag out is a formula for disaster.

 

[rowz]

Thank you both for your input.

mistoffolees: Why would the ex-wife inherit the ex-husband's equity? My answer to that is she would because the governing instrument on the property issue [the deed] has them as tenants by entirety. You are correct, there was no remarriage by any of the parties.

LdiJ - as I have read the NJ laws [and I am not schooled in anything but how to read] and at first I believed that your assessment was correct.

Then the result of a net-search got me to a site that details the changes to NJ Probate Law - Chapt. 132 that was done in 2004. My reading there led me towards the perspective of mistoffolees. AhA!!

But there was a lot there and it took a few minutes for me to digest it....so here is my new perception. Assuming I am relating this all correctly am I on the right track?

Ex husband died early August, 04. The changes to the Law were "signed into law on Aug.31, 2004 & became effective on March 3, 2005."

In essence, there were changes to the law that "severs the interests of the former spouses in property held by them at the time of the divorce as Joint tenants w/ROS or as tenants by the entireties, transforming the interests of the former spuses into tenancies in common". [N.J.S. 3B:3-14 (2)]

Reading that, I first saw that mistoff was correct in their post. It looks like the law did some housecleaning there for such situations.

Then I discovered the dates of the laws passage & the effective date, noted above.

Where do those dates leave the situation?

Again, my thanks for your interest and attention.

 

[LdiJ]

If I'm reading this correctly (the 2004 death was the ex-husband who owned the property and the 2006 death was the ex-wife who owned the property), I don't think that's likely. They got divorced in 1987 and then he died in 2004. Why would the ex-wife inherit the ex-husband's equity? It should have gone to his estate (unless he had a will which specified otherwise). (if the 2006 death was his second wife - then his equity would have gone to his second wife on his death and then to her estate on her death. But there's nothing there to indicate that he remarried, so I am assuming this didn't happen).

In any event, his heirs need an attorney they need an attorney. Even if they were all still alive, figuring out who is entitled to what would be a nightmare. With the deaths - and 4 years elapsed since his death, it's going to be even more complicated.

Note to others. DO NOT DO THIIS. Settle the property division at the time of the divorce. Letting it drag out is a formula for disaster.

Because the deed was never changed and the house would have passed to her automatically, outside of the estate. There is a slight chance that the property was not deeded with rights of survivorship, but since the property was purchased while they were married, that's unlikely. Their divorce decree left them as joint owners with the instruction to sell the property and split the proceeds....he had over 17 years to make that happen and never did.

Even with a will, I don't think that the deed could be superceded, and without a will there is no way to prove that he didn't deliberately leave it that way...particularly if they had children who would inherit after their mother passed away.

Now, if one of them had been granted sole ownership of the house in the divorce decree, with the instruction to refinance and buy the other one out, that would be an entirely different scenario, but that's not the way that it happened.

 

[LdiJ]

Thank you both for your input.

mistoffolees: Why would the ex-wife inherit the ex-husband's equity? My answer to that is she would because the governing instrument on the property issue [the deed] has them as tenants by entirety. You are correct, there was no remarriage by any of the parties.

LdiJ - as I have read the NJ laws [and I am not schooled in anything but how to read] and at first I believed that your assessment was correct.

Then the result of a net-search got me to a site that details the changes to NJ Probate Law - Chapt. 132 that was done in 2004. My reading there led me towards the perspective of mistoffolees. AhA!!

But there was a lot there and it took a few minutes for me to digest it....so here is my new perception. Assuming I am relating this all correctly am I on the right track?

Ex husband died early August, 04. The changes to the Law were "signed into law on Aug.31, 2004 & became effective on March 3, 2005."

In essence, there were changes to the law that "severs the interests of the former spouses in property held by them at the time of the divorce as Joint tenants w/ROS or as tenants by the entireties, transforming the interests of the former spuses into tenancies in common". [N.J.S. 3B:3-14 (2)]

Reading that, I first saw that mistoff was correct in their post. It looks like the law did some housecleaning there for such situations.

Then I discovered the dates of the laws passage & the effective date, noted above.

Where do those dates leave the situation?

Again, my thanks for your interest and attention.

The law was not effective until March, 2005, and he died in August 2004. That means that the law does not apply to their case.

Who are you in this case? What is your interest in the matter?

 

[tranquility]

No matter the actual result, there will be other facts which could affect the tax situation as well. Although the case is not on point, the discussion will instruct on some of the issues.

Amarasinghe v. Commissioner, No. 08-1226 (4th Cir. 6/23/08)

I think an attorney will need to be involved as there will almost certainly need to be a court order at some point telling everyone where the money should go.

 

[rowz]

Hi again:

My interest? OK.....I am the Executor for the ex-wife's estate.

The will of the ex-wife is in litigation and there are lawyers involved, oh yes indeeed.

1 for the Plaintiff [daughter of the decedents], 1 that drew the will, 1 for me and 1 for a beneficiary. For the latter 2 [defendants] the bills are in the low [at least for now] 5 figures.

The daughter is attempting to have the will thrown out with a "kitchen sink complaint" citing all the standard claims that could be used to invalidate a will. One by one, through discovery & supported with evidence the claims have been winnowed down to a claim of undue influence.
NJ has a weird [to me, anyway] way of looking at that claim that states if the court THINKS that there COULD be U.I. then the burden of proof to support the U.I. claim shifts to the defendant to show why there was not any.
But....here we are.


The estate is about out of cash and the home is the only asset of real value. We are 1 1/2 year into the litigation phase. The Court let me remain as executor and did not remove me from controlling the assets but with some limitations.

The bene held a POA for the decedent and had been a friend and neighbor for over 30 years. The bene's duties were carried out in an exemplary fashion with extensive and complete documentation of all expenditures and actions taken on behalf of the decedent.

The defendant lawyers are well respected in the area and have performed decently. The big BUT is that like many clients, both defendants feel that there is not much in the way of communication as to the way the case is being pursued and what issues are being considered & negotiated.

Next month is a [the second] settlement conference. The result there was again inconclusive and the defendants came away even a bit more in the dark as to what was discussed & negotiated. No written explanation to the parties was ever made.

I have reviewed the file, and again came back to my question from the start which was;; "what is the ex-wifes share of the matiral residence?" Despite this question being asked in all initial conferences with the lawyers, the answer never was definitive. My postings here was to try and get some clarity on the issues.

Sadly, my life experience has taught me to trust what the lawyers tell me, but to verify that their info is correct, the basis for the interpretation is sound, and to verify as much of the information and the facts as possible. My posts of yesterday have me with a freshened perspective.

I'm a bit tired & exasperated with the lengthy process. Through the process I have been told to list the house for sale, pay the bills, maintain the property, but the while the Court issued an order to do so, I wondered how I could list the house [let alone sell it] with what I thought was a divided interest & without the signature of both parties. How does one pay bills without an estate bank acount. [no 'letters' issued].

The bene has asked me questions that I have no answer for and he has decisions to make that are dependant on the extent of his bequest.

I want to prepare a letter to my atty. citing my questions about title, but am afraid of being a nuisance as my last letter to him [a little over 2 weeks ago] has not received a reply. So...thats why I am here trying to learn about the issues and the proper way to frame my inquiries.

Once again, my thanks for your time and attention.

 

[LdiJ]

Hi again:

My interest? OK.....I am the Executor for the ex-wife's estate.

The will of the ex-wife is in litigation and there are lawyers involved, oh yes indeeed.

1 for the Plaintiff [daughter of the decedents], 1 that drew the will, 1 for me and 1 for a beneficiary. For the latter 2 [defendants] the bills are in the low [at least for now] 5 figures.

The daughter is attempting to have the will thrown out with a "kitchen sink complaint" citing all the standard claims that could be used to invalidate a will. One by one, through discovery & supported with evidence the claims have been winnowed down to a claim of undue influence.
NJ has a weird [to me, anyway] way of looking at that claim that states if the court THINKS that there COULD be U.I. then the burden of proof to support the U.I. claim shifts to the defendant to show why there was not any.
But....here we are.


The estate is about out of cash and the home is the only asset of real value. We are 1 1/2 year into the litigation phase. The Court let me remain as executor and did not remove me from controlling the assets but with some limitations.

The bene held a POA for the decedent and had been a friend and neighbor for over 30 years. The bene's duties were carried out in an exemplary fashion with extensive and complete documentation of all expenditures and actions taken on behalf of the decedent.

The defendant lawyers are well respected in the area and have performed decently. The big BUT is that like many clients, both defendants feel that there is not much in the way of communication as to the way the case is being pursued and what issues are being considered & negotiated.

Next month is a [the second] settlement conference. The result there was again inconclusive and the defendants came away even a bit more in the dark as to what was discussed & negotiated. No written explanation to the parties was ever made.

I have reviewed the file, and again came back to my question from the start which was;; "what is the ex-wifes share of the matiral residence?" Despite this question being asked in all initial conferences with the lawyers, the answer never was definitive. My postings here was to try and get some clarity on the issues.

Sadly, my life experience has taught me to trust what the lawyers tell me, but to verify that their info is correct, the basis for the interpretation is sound, and to verify as much of the information and the facts as possible. My posts of yesterday have me with a freshened perspective.

I'm a bit tired & exasperated with the lengthy process. Through the process I have been told to list the house for sale, pay the bills, maintain the property, but the while the Court issued an order to do so, I wondered how I could list the house [let alone sell it] with what I thought was a divided interest & without the signature of both parties. How does one pay bills without an estate bank acount. [no 'letters' issued].

The bene has asked me questions that I have no answer for and he has decisions to make that are dependant on the extent of his bequest.

I want to prepare a letter to my atty. citing my questions about title, but am afraid of being a nuisance as my last letter to him [a little over 2 weeks ago] has not received a reply. So...thats why I am here trying to learn about the issues and the proper way to frame my inquiries.

Once again, my thanks for your time and attention.

Why doesn't the estate have a bank account? You should have opened an account for the estate and that is where any and all cash that belongs to the estate should be deposited.

Are you stating that the wife did not leave anything to her daughter? That she left it all to the friend?

As the executor, you can sell the house. That is within your scope of authority.

 

[tranquility]

The reason you're not finding answers is because it is a complex situation which depends on many facts. No one knows the answer. At best, a good practitioner can give you an estimate about what your chances are and what issues there are in the determination.

If you write a letter, the attorney will answer it. Be sure you want this to happen. Having litigation attorneys answer letters can get expensive very fast.

 

[rowz]

Why doesn't the estate have a bank account?
The bank would not let me open an account without letters testamentary. Also, the $ could not be removed from the existing accounts without said letters. The bank officer would not accept the court order, only 'the letters'. I even went to the head office with my request.

Are you stating that the wife did not leave anything to her daughter? That she left it all to the friend?
There was a death benefit policy left to the [largely estranged] daughter. She was named in the will. The relationship was not good.....for years.
Part of the evidence is the communications from the bene requesting assistance from daughter for help with the Mom. Mostly unresponsive.

As the executor, you can sell the house. That is within your scope of authority.

The home is uninsured and un-insurable at regular rates. I have asked my atty. to provide a hold harmless agreement to cover the estate if a prospect was injured. That request has gone un-answered or acknowledged.

The court order said "the parties are to co-operate in the sale of the property". They have made no contact nor has their atty. on this issue despite a request.

If the decedent owned it all then I agree, as the representive of the estate I am allowed to sell it.

If the decedent owned 50% then would I not need their signature or at least their agrement to sell it?

Like many contested wills, this is um, er.....difficult.

 

[mistoffolees]

Sounds to me like someone needs to bring a baseball bat to the next settlement conference to pound some sense into peoples' heads.

Clearly, at the time of the divorce, the intent was that the father would have half of the marital equity and the mother would have half. (Of course, 17 years after separation, determining the percentage that each person should have received would be a nightmare, but a good accountant could make a pretty good stab at it).

If I were involved, it would seem to me that it would be better to let the father's portion go to whoever the father's estate went to and the mother's portion go to whoever the mother's estate went to. That would clearly represent the wishes of the parents. AND, it would settle things before the entire value of the home was spent on attorneys.

Of course, that's not a legal solution and either party has the right to pursue it to the end of time or until the money runs out if they wish. No matter how stupid that may be.

Have you considered resigning as executor? Sounds to me like you're getting a lot of hassle but do not have any influence.

 

[rowz]

Hi again:

Tranquility said: "Having litigation attorneys answer letters can get expensive very fast.". Thanks for the reminder. I do apreciate it & will keep it in mind.

There is another fact which I [re]stumbled upon yesterday and will throw that into the mix below.

mistoffolees said: "Sounds to me like someone needs to bring a baseball bat to the next settlement conference to pound some sense into peoples' heads.".

Do you suggest wood or aluminum?

I talked with the bene and have let them know of the possible value of settlement. He flips & flops between anger, reason and resignation.

Now, here is my new bit of info. I reviewed the ex-husbands will and found an interesting device. It is the usage of "power of appointment".

Looking into it I saw that it is a tax avoidance device, at least that is the way I read what I found. The first thing is that I do not know why it was in there, unlessn the ex had a lot of $ which would have made a diff to the taxable issues of his estate.

Then after some digestion of the clause I saw, which reads; ...."I give, devise & bequeath the rest, residue, & remainder of my estate, real, personal and mixed, wherever situated, including any property over which that I may havea power of appointment to my daughter", I now think that as the divorce decree was the governing instrument at the time of his death and due to his 17 years of failing to act on the decree, the ownership of the real property devised to the ex-wife.

Does the somewhat vague language above, particularly in the matter of real property indicate his own uncertainty of what he did own?

Any other perspective on this new info is appreciated.

rowZ

 

[LdiJ]

Hi again:

Tranquility said: "Having litigation attorneys answer letters can get expensive very fast.". Thanks for the reminder. I do apreciate it & will keep it in mind.

There is another fact which I [re]stumbled upon yesterday and will throw that into the mix below.

mistoffolees said: "Sounds to me like someone needs to bring a baseball bat to the next settlement conference to pound some sense into peoples' heads.".

Do you suggest wood or aluminum?

I talked with the bene and have let them know of the possible value of settlement. He flips & flops between anger, reason and resignation.

Now, here is my new bit of info. I reviewed the ex-husbands will and found an interesting device. It is the usage of "power of appointment".

Looking into it I saw that it is a tax avoidance device, at least that is the way I read what I found. The first thing is that I do not know why it was in there, unlessn the ex had a lot of $ which would have made a diff to the taxable issues of his estate.

Then after some digestion of the clause I saw, which reads; ...."I give, devise & bequeath the rest, residue, & remainder of my estate, real, personal and mixed, wherever situated, including any property over which that I may havea power of appointment to my daughter", I now think that as the divorce decree was the governing instrument at the time of his death and due to his 17 years of failing to act on the decree, the ownership of the real property devised to the ex-wife.

Does the somewhat vague language above, particularly in the matter of real property indicate his own uncertainty of what he did own?

Any other perspective on this new info is appreciated.

rowZ

Yes, it may indicate that he was uncertain of exactly what he "owned".

My concern is that they owned it jointly, and continued to own it jointly, without taking the action that was necessary to sever that joint ownership. Which made the property pass outside of the estate to the wife, which then left it open for the wife to leave it to someone other than her daughter.

I have a real concern however, that if this doesn't get settled, that the only people who are going to benefit are the attorneys.