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Husband did not change will

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friendofdeb

Junior Member
What is the name of your state? West Virginia

My friend's husband recently died of a heart attack. It was the second marriage for both. She moved into his house seven years ago, maintained it, and put in a lot of work on repairs.
Her husband never updated his will, or the deed to the house in his name. In his will he left the house to his three sons from his first marriage (first wife deceased). One of the sons told her on the day of the funeral she had six months to vacate. Another son said she could stay as long as she could pay the bills. taxes, etc. The third son did not voice an opinion.

Does she have any recourse to keep the house, which is modest? They were married seven years. Does the age of the will have any bearing? Can the two sons veto the third?

Thank you
 
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anteater

Senior Member
What is the name of your state? West Virginia

My friend's husband recently died of a heart attack. It was the second marriage for both. She moved into his house seven years ago, maintained it, and put in a lot of work on repairs.
Her husband never updated his will, or the deed to the house in his name. In his will he left the house to his three sons from his first marriage (first wife deceased). One of the sons told her on the day of the funeral she had six months to vacate. Another son said she could stay as long as she could pay the bills. taxes, etc. The third son did not voice an opinion.

Does she have any recourse to keep the house, which is modest? They were married seven years. Does the age of the will have any bearing? Can the two sons veto the third?

Thank you
Until the will is probated and a personal representatie is appoined, the 3 sons are talking out of their respective hats. No, if the will otherwise meets the requirements of WV law, the age of the will does not matter.

You and your friend can check WV's probate statutes at the following. Begins with Chaptor 41.
http://www.legis.state.wv.us/WVCODE/masterfrm3Banner.cfm

Chapter 42, Article 3 is particularly relevant.
§42-3-1. Right to elective share.
(a) The surviving spouse of a decedent who dies domiciled in this state has a right of election, against either the will or the intestate share, under the limitations and conditions stated in this part, to take the elective-share percentage of the augmented estate, determined by the length of time the spouse and the decedent were married to each other, in accordance with the following schedule:
If the decedent and the spouse were married to each other, the percentage is:
Less than 1 year Supplemental Amount Only
1 year but less than 2 years 3% of the augmented estate.
2 years but less than 3 years 6% of the augmented estate.
3 years but less than 4 years 9% of the augmented estate.
4 years but less than 5 years 12% of the augmented estate.
5 years but less than 6 years 15% of the augmented estate.
6 years but less than 7 years 18% of the augmented estate.
7 years but less than 8 years 21% of the augmented estate.
8 years but less than 9 years 24% of the augmented estate......
Your friend should begin to looking for an estate attorney to represent her. If it comes to taking the elective share, she must act to claim it within 6 months of probate of the will. This is likely to become contentious and she could be steamrolled if not represnted.
 

friendofdeb

Junior Member
How does this apply?

Thanks for the link, Anteater. Going through the West Virginia laws, I also found this. She would be 2 (c), none of the surviving descendants are also hers. How does this relate to the percentages in the statute you posted?
She will have a lawyer; just trying to give her some good news so she doesn't think she's destitute.

thanks

42-1-3. Share of spouse.
The intestate share of a decedent's surviving spouse is:
(a) The entire intestate estate if:
(1) No descendant of the decedent survives the decedent; or
(2) All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(b) Three fifths of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(c) One half of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
 

anteater

Senior Member
42-1-3. Share of spouse.
The intestate share of a decedent's surviving spouse is:
(a) The entire intestate estate if:
(1) No descendant of the decedent survives the decedent; or
(2) All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(b) Three fifths of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(c) One half of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
That applies to someone dying intestate - without a valid will. You said that there was a will and, unless that will is found by the court to be invalid for some reason, the intestate provisions woud not apply.
 

nextwife

Senior Member
Because she has been contributing to the maintenance, etc of the marital homestead, it is possible she may have become vested with a marital property interest in any assets acquired and improved during the marriage. WV is an equitable distribution state - she REALLY needs to see an attorney.
 

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