Fathers will, one of the beneficiaries was dead

[nohiogal]

What is the name of your state (only U.S. law)? OHIO

My father passed away 11 months ago. He had a will that stated that his assests were to be divided equally among his three children. At the time my brother had already passed away but my father never amended his will.

There has been no probate case opened. I shared a bank account with my father, I was beneficiary of his life insurance and his property had been transferred to my name about a week before he died. All his assests were split between me and my sister equally. He does have one open bank account that was only in his name which up to this point we have left alone since we are not sure it is worth opening a probate case to get access to. All his debts and medical bills have been paid through the account I shared with him.

My brother had one son. My question is whether his son would have been entitled to my brothers share even though he was dead. My brother had no will. His case did go through probate and that case has been closed and settled for close to two years.

My family has been getting calls about his probate case, which there is none. I am assuming this is some scam but there has also been talk that my brothers ex-girlfriend that has custody of his son is trying to get what would have been my brothers share of our fathers estate. Is that possible?What is the name of your state (only U.S. law)?

 

[ShyCat]

Is that possible?

Yes, that is possible and even quite likely. Language in your father's will would determine if a predeceased heir's share would go to his children. Google "per stirpes" and "per capita" for an explanation.

 

[anteater]

And if the will does not contain language dealing with a predeceased beneficiary, then Ohio's anti-lapse statute would apply:

2107.52 Death of devisee or legatee.
(A) As used in this section, “relative” means an individual who is related to a testator by consanguinity and an heir at law designated pursuant to section 2105.15 of the Revised Code.

(B) Unless a contrary intention is manifested in the will, if a devise of real property or a bequest of personal property is made to a relative of a testator and the relative was dead at the time the will was made or dies after that time, leaving issue surviving the testator, those issue shall take by representation the devised or bequeathed property as the devisee or legatee would have done if he had survived the testator. If the testator devised or bequeathed a residuary estate or the entire estate after debts, other general or specific devises and bequests, or an interest less than a fee or absolute ownership to that devisee or legatee and relatives of the testator and if that devisee or legatee leaves no issue, the estate devised or bequeathed shall vest in the other devisees or legatees surviving the testator in such proportions as the testamentary share of each devisee or legatee in the devised or bequeathed property bears to the total of the shares of all of the surviving devisees or legatees, unless a different disposition is made or required by the will.

Boil it down... Unless father's will contained explicit language indicating that a predeceased beneficiary's bequest is nullified (lapsed), then your brother's son stands to take your brother's share. That your brother's estate was probated is not relevant.


ADDITION: In Ohio, for estates valued at less than $35,000, there is a process for requesting that the court release the estate from administration. You can read about it here at this link - beginning at 2113.03.

http://codes.ohio.gov/orc/2113

 

[nohiogal]

Thanks for your help. I will review the will.

Another quick question. Since the property he owned, a car and a mobile home, was transferred to my name before he died then that would not be considered part of his estate, correct?

Also since the bank account was joint account would only half of what was in the account at the time of death be considered as part of his assests?

 

[curb1]

Who was responsible for transferring these assets just before your father died? How does "sister" feel about the transfer to your name?

 

[nohiogal]

My sister has no issue with the way things were divided. I had the titles signed and notorized by my dad over to my name. When he passed I kept the mobile home and I transferred the car from my name into my sisters.

From his life insurance what was not used for burial expenses we split in half as well as what was in the bank account that I shared with my dad.

As I stated there is one more account that was only in my fathers name that still sits untouched since we never opened a probate case. There are also several checks that were issued as refunds from house insurance and car insurance premiums that were canceled when he died that were never cashed since they were in my fathers name.

 

[ShyCat]

Note that if the property transferred to you as a gift from your father before his death totals more than $13000, the amount over that will be subject to Federal gift tax. Some states also impose a gift tax.

 

[anteater]

Thanks for your help. I will review the will.

Another quick question. Since the property he owned, a car and a mobile home, was transferred to my name before he died then that would not be considered part of his estate, correct?

Also since the bank account was joint account would only half of what was in the account at the time of death be considered as part of his assests?

Normally, with a bank account set up jointly, the surviving joint owner becomes the owner when the other owner passes away and, therefore, is not considered part of the deceased's probate estate. It depends upon the wording. One sure way to find out is to take a death certificate to the bank and request that the account be re-titled solely in your name.

Generally, what you say regarding the other property is correct. However...

The circumstances under which the property was transferred to you has the possibility of being questioned. If brother's ex-girlfriend, on behalf of brother's son, were to retain an aggressive attorney, such attorney might claim that the transfers were not legitimate and the property should be part of the probate estate. Questions might be raised about your father's competence to make those transfers. Or whether he was subject to undue influence from you and/or your sister.

Let me be clear. I am not saying that there is a problem. I am not saying that the question will even arise. I am certainly not saying anything about the chances of bother's son prevailing if the issue is raised. I am simply saying that the possibility exists.

 

[curb1]

You should take the initiative to get this cleared up. As Anteater suggested, there are potential "sticky" problems that should be addressed and put to rest.