Co-Executors agree but Wife is left out of will, she may contest

[darb]

What is the name of your state (only U.S. law)? Washington
My step father deceased on nov.29th and had a Will. He (deceased) named his 2 children Co- personal representatives. He was married for 2 years. His wife and him were living in separate residences at time of death and he marked in will that they were beginning the steps of divorce. His wife has been very upset that he adjusted his will to give his estate to his children and not her. His home is not community property, he has IRA account that he mentioned in "Super-Will" to override her status as beneficiary. He has a classic car he purchased using money from his IRA account, that was purchased this year. He does not have any outstanding debt. My questions are :

1. Once the personal representatives are named executors in the court. they would like to give the property and house to one child. can that executor live in the home?

2. If the wife who was left out of the will contests the will, does the "Super Will" override the beneficiary on the IRA?

3. Is the classic car considered to be community since he purchased it wile married but used his IRA money to do so?

 

[justalayman]

Did The representative(s) use the proper form to inform all parties that are required by law to be given notice of the super will provision
Given they have not been appointed yet, there is nothing to prevent the wife from applying for and receiving the money in the ira.


The reps can petition to have the money returned once appointed but it sure is easier to not let loose of it rather than trying to get it back after the fact.

As far as giving the home to one person; it would depend on what the will says to everything.


As to one of the reps living in the home; again, other facts and factors play into such an action.

 

[darb]

Did The representative(s) use the proper form to inform all parties that are required by law to be given notice of the super will provision
Given they have not been appointed yet, there is nothing to prevent the wife from applying for and receiving the money in the ira.


The reps can petition to have the money returned once appointed but it sure is easier to not let loose of it rather than trying to get it back after the fact.

As far as giving the home to one person; it would depend on what the will says to everything.


As to one of the reps living in the home; again, other facts and factors play into such an action.

Thank you for your response.

The Lawyer of the reps have made calls to the IRA company and told them there is a super will and not issue the funds, not sure if the forms were done yet but all beneficiaries have been given notice of probate and court date is on this week.

the representatives both agree that the home and property goes to one of them. So my question is just if there is a reason to not move in after they are made executor. to take care of estate and make house payments.

 

[justalayman]

first you said representatives have not been appointed yet. Without appointment they have no authority to take any action


Then, based only on my quick research on the matter, there is a specific form required to be provided to all listed parties. Absent that form the holder of the Ira does not have the right to refuse honoring the beneficiary designation. I suppose they could stall but legally they can't refuse payment to the named beneficiary.


Again, regarding the house; it matters not what the representatives agree to, especially within themselves, if the will directs otherwise. You are privy to the documents that I am not so with what yiu have provided, I cannot say the reps actions are allowed or proper.

 

[latigo]

What is the name of your state (only U.S. law)? Washington
My step father deceased on nov.29th and had a Will. He (deceased) named his 2 children Co- personal representatives. He was married for 2 years. His wife and him were living in separate residences at time of death and he marked in will that they were beginning the steps of divorce. His wife has been very upset that he adjusted his will to give his estate to his children and not her. His home is not community property, he has IRA account that he mentioned in "Super-Will" to override her status as beneficiary. He has a classic car he purchased using money from his IRA account, that was purchased this year. He does not have any outstanding debt. My questions are :

1. Once the personal representatives are named executors in the court. they would like to give the property and house to one child. can that executor live in the home?

2. If the wife who was left out of the will contests the will, does the "Super Will" override the beneficiary on the IRA?

3. Is the classic car considered to be community since he purchased it wile married but used his IRA money to do so?

LISTEN UP!

What you need to do is to PROMPTLY arrange and appointment for you and your mother with a Washington attorney versed in the state's probate law. Why?

Because Title 11 Section 11.50 et seq. of the Revised Code of Washington (RCW) spells out an number of liberal property rights your mother can assert against her husband's estate, regardless of the bequests and devises contained in his will and regardless of whether those assets are community property or sole and separate!

HOWEVER, she MUST petition the court in order to be awarded those survivor benefit Why PROMPTLY?

Because she must move quickly or lose them! They will not be awarded on the court's volition.

Also, don't think for a moment that this can be accomplished without retaining knowledgeable legal counsel. It is distinctly not a DIY project.

 

[Dandy Don]

What is a "super will"?

A will can not override a beneficiary designation for an IRA--the beneficiary designation will always take precedence, although your father probably did not know that at the time he made the "super will". Too bad your father didn't consult with a probate attorney to have his will drafted--if he had, perhaps the attorney could have advised him of the proper way to achieve what he wanted to achieve. The fact that they were almost divorced doesn't mean a thing--his surviving spouse will be treated as a spouse and she will receive whatever portion of the estate that Washington state law says she is entitled to.

Do not do anything without first consulting with a probate attorney.

 

[darb]

What is a "super will"?

A will can not override a beneficiary designation for an IRA--the beneficiary designation will always take precedence, although your father probably did not know that at the time he made the "super will". Too bad your father didn't consult with a probate attorney to have his will drafted--if he had, perhaps the attorney could have advised him of the proper way to achieve what he wanted to achieve. The fact that they were almost divorced doesn't mean a thing--his surviving spouse will be treated as a spouse and she will receive whatever portion of the estate that Washington state law says she is entitled to.

Do not do anything without first consulting with a probate attorney.

I am looking up what surviving spouse is entitled to and not finding anything. Is that only for community property with no will that she would be given it? the home is the dads single property and that is the thing I have the most worry about.

 

[justalayman]

What is a "super will"?

A will can not override a beneficiary designation for an IRA--the beneficiary designation will always take precedence, although your father probably did not know that at the time he made the "super will". Too bad your father didn't consult with a probate attorney to have his will drafted--if he had, perhaps the attorney could have advised him of the proper way to achieve what he wanted to achieve. The fact that they were almost divorced doesn't mean a thing--his surviving spouse will be treated as a spouse and she will receive whatever portion of the estate that Washington state law says she is entitled to.

Do not do anything without first consulting with a probate attorney.

Yes don, a super will can do just that. It is an oddity

RCW 11.11.020
Disposition of nonprobate assets under will.
(1) Subject to community property rights, upon the death of an owner the owner's interest in any nonprobate asset specifically referred to in the owner's will belongs to the testamentary beneficiary named to receive the nonprobate asset, notwithstanding the rights of any beneficiary designated before the date of the will.

 

[justalayman]

LISTEN UP!

What you need to do is to PROMPTLY arrange and appointment for you and your mother with a Washington attorney versed in the state's probate law. Why?

Because Title 11 Section 11.50 et seq. of the Revised Code of Washington (RCW) spells out an number of liberal property rights your mother can assert against her husband's estate, regardless of the bequests and devises contained in his will and regardless of whether those assets are community property or sole and separate!

HOWEVER, she MUST petition the court in order to be awarded those survivor benefit Why PROMPTLY?

Because she must move quickly or lose them! They will not be awarded on the court's volition.

Also, don't think for a moment that this can be accomplished without retaining knowledgeable legal counsel. It is distinctly not a DIY project.

whats up? Why can I not find title 11 chapter 11.50 you refer to?

http://apps.leg.wa.gov/rcw/default.aspx?Cite=11


I can't find anything providing for a spouse's elective share. What am I missing?

 

[LdiJ]

whats up? Why can I not find title 11 chapter 11.50 you refer to?

http://apps.leg.wa.gov/rcw/default.aspx?Cite=11


I can't find anything providing for a spouse's elective share. What am I missing?

Try this one:

RCW 11.12.095

However, I also found some information that indicates that a surviving spouse already owns 1/2 of all community property and might not be entitled to an elective share in addition to their 1/2 ownership of community property. That information did not address separate property.

I am not going to delve much deeper at this point other than to suggest that the OP follow Latigo's advice. I suspect there might be another section that I did not find.

I will mention that she may have a community interest in both his home and the IRA (albeit perhaps a small one) if marital income contributed to the IRA and maintained the home/paid the mortgage. He also had the opportunity to change the beneficiary of his IRA and did not do so. That is at least going to be a fight.

 

[justalayman]

He didn't have to change his beneficiary. He addressed it in his will and from what was said it appears he did it properly.

Omitted spouse or omitted domestic partner.
(1) If a will fails to name or provide for a spouse or domestic partner of the decedent whom the decedent marries or enters into a domestic partnership after the will's execution and who survives the decedent, referred to in this section as an "omitted spouse" or "omitted domestic partner," the spouse or domestic partner must receive a portion of the decedent's estate as provided in subsection (3) of this section, unless it appears either from the will or from other clear and convincing evidence that the failure was intentional.


He changed the will after he was married. This chapter isn't applicable

 

[darb]

He didn't have to change his beneficiary. He addressed it in his will and from what was said it appears he did it properly.

Omitted spouse or omitted domestic partner.
(1) If a will fails to name or provide for a spouse or domestic partner of the decedent whom the decedent marries or enters into a domestic partnership after the will's execution and who survives the decedent, referred to in this section as an "omitted spouse" or "omitted domestic partner," the spouse or domestic partner must receive a portion of the decedent's estate as provided in subsection (3) of this section, unless it appears either from the will or from other clear and convincing evidence that the failure was intentional.


He changed the will after he was married. This chapter isn't applicable

Correct, the will was revised this year after he decided he wanted a divorce and he did indeed name the IRA in the will since it is a non probate asset. I think there is just a form that needs to be approved by the court then to change the beneficiary, right?

 

[justalayman]

Correct, the will was revised this year after he decided he wanted a divorce and he did indeed name the IRA in the will since it is a non probate asset. I think there is just a form that needs to be approved by the court then to change the beneficiary, right?

No. Not correct. It's too late to do that. He's already deceased. I don't recall the specific form but the administrator of his estate needs to fill like out the appropriate form and deliver it to several people including the named beneficiary and the administrator of the Ira.

 

[Silverplum]

Correct, the will was revised this year after he decided he wanted a divorce and he did indeed name the IRA in the will since it is a non probate asset. I think there is just a form that needs to be approved by the court then to change the beneficiary, right?

Not after his death. Whatever was in place at the date of his passing is what stands.