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Deperately need answers!! Please HELP!!!

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totalspam

Junior Member
What is the name of your state (only U.S. law)? NEW YORK

Basically, my mom passed away last year. My 70 year old father remarried recently. They did not sign a prenuptial agreement. I am gravely concerned because he went to China to find a wife 12 years younger than himself after speaking on the phone with her for 2 months. And people there are known to marry for fraudulent reasons (green card, money). I highly question her motives for agreeing to marry my very short, unattractive, and much older father.

I am currently the sole beneficiary on his will. The only real asset concerned is the house.

My questions are, if/when my father passes away,

How does his second marriage affect the will?
Can his second wife contest the will?
Will she have rights to the inheritances?
What will she be entitled to, if anything?
Do we need a living trust in this case?

Any additional suggestions and advice would be greatly appreciated. Thank you.
 


C

curb1

Senior Member
What does your father say about this? Is it his intention to have this second wife inherit all of his assets? He has that option. It sounds as though that is his desire since he did nothing to prevent that from happening.
 
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totalspam

Junior Member
He thinks that the current will in place "takes care of everything"; that I do not need to worry at all. He thinks him remarrying has zero affect on me. He is only remarrying because he is lonely and wants everything else to stay the same.

And I quote him: "You don't need to worry. The will only states you as the sole inheritance. My remarrying has nothing to do with you or the house."

He is content in believing in this woman (who is still in China at the moment) and that she has no ulterior motives whatsoever. Whether she does or does not is not my concern, I just want to make sure the assets are protected if the situation does arise.

Please explain to me what will happen...
 
C

curb1

Senior Member
You need to take your dad to an experienced attorney, NOW !!! There is a very good chance that what will happen is totally different than his intentions. If you have read this forum, there are many examples of the new wife walking away with the entire amount of assets. Personally, I have seen many, many situations that mirror your example. Almost every situation ended with the new wife inheriting EVERYTHING.
 
K

Kiawah

Senior Member
And make sure when he updates his will or trust documents, that you have a copy and know where he has secured the original. To help avoid an issue where his will mysteriously becomes 'lost' or denied that it ever existed.
 
D

Dandy Don

Senior Member
At some point in the future find out from him or by purchasing the information from an abstract/title company exactly whose name is on the house title/deed now.
 
T

totalspam

Junior Member
My father is a very stubborn old man.

Aside from speaking to a lawyer, friends advised us to get a living trust drawn up asap, will that solve the problem?
 
T

totalspam

Junior Member
As far as I know, both my mother and father's name is on the house deed.

Both their will states that if whomever should pass first, the other spouse would inherit everything, and then the next in line would be me.

I doubt it's been updated in the last year, so if I am correct, both their names will still appear on the deed.

I went into Office Depot the other day and found these legal forms by Socrates where you can draw up your own living will and living trusts? Can it really be done by yourself without a lawyer? If possible, I would like to take that route and avoid the costly legal fees incurred with drawing up the document, in the ballpark of $2500+? But, if that's not smart, I will pay the fees to avoid bigger problems in the future.
 
A

anteater

Senior Member
The surviving spouse is entitled to elect to take a share of the estate no matter what the will says. Not going to look up the actual statute, but from a New York attorney's website:

2. The Right of Election
The right of election exists when a deceased spouse leaves a Will that is admitted to probate by the Surrogate's Court. For 6 months after the Will has been probated, the surviving spouse has the option to receive the greater of $50,000 or one-third of the estate under probate outright (as opposed to receiving it in trust) regardless of what the Will provides for the spouse. This is known as the elective share. When the Will leaves more than the elective share of the estate to the surviving spouse, he or she would not exercise the right of election. The right of election is valuable only if the Will leaves less than the elective share of the deceased person's estate to the surviving spouse. For example, if a person dies leaving a Will giving everything to his children, the surviving spouse has the right to receive the elective share (i.e., the greater of $50,000 or one-third of the estate) despite what the Will provides.


The right of election also exists when the deceased spouse made certain gifts shortly before death or left joint bank accounts or jointly owned real estate or other property where the other joint owner is not the surviving spouse, Totten Trust bank accounts not passing to the surviving spouse, certain retirement accounts of which the surviving spouse is not the beneficiary, and other property rights, all of which automatically pass to persons other than the spouse instead of being part of the probate estate. The right of election against those property interests exists whether or not the deceased spouse left a Will.

3. The Exemption for the Benefit of the Family
A spouse is entitled to certain property of the deceased spouse irrespective of what a Will provides to the contrary. That property is legally considered not to be part of the probate estate, where there is a Will, or the intestate estate where there is no Will.
The property to which the spouse is entitled is:

A. All housekeeping utensils, musical instruments, sewing machine, household furniture and appliances, including computers and electronic devices, used in and about the house, fuel, and clothing of the deceased person, not exceeding $10,000 in value.

B. The family bible, family pictures, video tapes and computer tapes, discs and software used by the family, and books, not exceeding $1,000 in value.

C. Domestic animals, farm machinery, one tractor, and one lawn tractor, not exceeding $15,000 in value.

D. One motor vehicle not exceeding $15,000 in value.

E. Money or other personal property not exceeding $15,000 in value.
Click to expand...
 
A

anteater

Senior Member
totalspam said:
.....I went into Office Depot the other day and found these legal forms by Socrates where you can draw up your own living will and living trusts? Can it really be done by yourself without a lawyer? If possible, I would like to take that route and avoid the costly legal fees incurred with drawing up the document, in the ballpark of $2500+? But, if that's not smart, I will pay the fees to avoid bigger problems in the future.
Click to expand...
You are asking for trouble trying to do this yourself. Truthfully, too much invovlement on your part risks an accusation of undue influence down the road. If the major asset is the house, it should not cost anywhere near $2,500 for a will.
 
T

totalspam

Junior Member
anteater said:
The surviving spouse is entitled to elect to take a share of the estate no matter what the will says. Not going to look up the actual statute, but from a New York attorney's website:
Click to expand...
So if I am understanding this correctly, you are saying that even though I am the sole beneficiary on my father's will. Because he is remarrying and should he pass away, his second wife will be entitled to her share. Period. Regardless of the fact that I am the only name on his will. Regardless of the fact that he only intends for me to inherit the house.

My question is, what can I do to prevent this from happening? What can I do to make sure she gets nothing? Can someone please provide a clear answer?
 
A

anteater

Senior Member
totalspam said:
So if I am understanding this correctly, you are saying that even though I am the sole beneficiary on my father's will. Because he is remarrying and should he pass away, his second wife will be entitled to her share. Period. Regardless of the fact that I am the only name on his will. Regardless of the fact that he only intends for me to inherit the house.

My question is, what can I do to prevent this from happening? What can I do to make sure she gets nothing? Can someone please provide a clear answer?
Click to expand...
I'm not certain how much clearer that you want it. A surviving spouse can be excluded from a will, but has the right to elect to take a share of the estate. Note the word "elect." It is not automatic. The surviving spouse must exercise the right. But that right to elect cannot be taken away.

Your father will need to consult with a New York attorney to see if there is an airtight way, other than a prenup, to get around the surviving spouse's right to elect. If he does, he should anticipate spending some bucks.

ADDITION: Ditch all the "I" stuff. Advise your father of the facts and then allow him to take care of it if he is inclined to. If you go stomping around leaving your fingerprints on everything, when your father passes away and the new wife consults with any half-witted attorney, you will get creamed.
 
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C

curb1

Senior Member
totalspam,

You are illustrating why estate planning is SO important. Many people wait until after the fact to do what should have been done before the fact. As it stands, you will most likely be a co-owner with this person from China. The next problem you will face is how to sell the house with you being a co-owner with someone who can't afford to buy you out. Another problem will be that she will live in the house and you will struggle to have her removed (she being a part owner).

This is a huge "can of worms" that has only just begun. You don't have the knowledge (most likely) to make this a "do-it-yourself" project. Even with good legal council, the outcome looks tenuous, at best.
 
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