Inheritance

[mfirman]

New Hampshire
My wife's father passed away. Her step mother quitclaimed her interest to my wife's half brother. Is the estate now treated as having no surviving spouse (and my wife receiving half the interest of the estate) or is the spousal portion just given to my wife's half brother?

 

[anteater]

Maybe you should try a do-over on this question. Once past "My wife's father passed away", I am not certain what you are saying or asking.

Like... What assets are there? How were they titled? Has probate been opened? Was there a will? What is it that stepmother has done exactly?

 

[mfirman]

Not sure if this has gone to probate or not. The father died almost 2 years ago with no will. The half brother is the executor of the estate. There was approximately 5000 in a savings account that he has already withdrawn. There is a piece of property that house a comdemned house on it. There are back taxes and associated interest tied to them. The step mother has filed a quitclaim deed that has been posted that simply states "Jane Doe aka Joan Doe to John Doe". The attorney handling this has stated in a letter that since the value of the property is less than $100,000 my wife would not be eligible to receive anything from the estate (sale of property). In the waiver letter he is wanting her to sign giving away all rights to her share it states that the estate will be treated as if there is no spouse thus, by New Hampshire statute, would mean my wife would be entitled to half of the estate.

 

[anteater]

A couple comments/questions:

1) Unless half brother was appointed by the court in a probate proceeding, he is not the executor of anything.

2) Did your wife's father own the property solely in his name? Stepmother can file any quitclaim that she likes, but, unless she legally owned the property, then the quitclaim means nothing.

3) The timing of things: Father dies 2 years ago; that quitclaim; a current(?) request from an attorney for your wife to waive her rights... Was this a case where the stepmother (and half brother) simply forged ahead without regard to the legalities and then had an "Oh bleep" moment?

Your wife probably should check this out with a New Hampshire probate attorney. But it appears to me that they have your wife boxed in. With no will, if I am getting the family relationships right, the surviving spouse would be entitled to the first $100,000 of the estate and 1/2 of the remainder:

561:1 Distribution Upon Intestacy....
I. If the deceased is survived by a spouse, the spouse shall receive:
...
(e) If there are surviving issue of the decedent one or more of whom are not issue of the surviving spouse, the first $100,000, plus 1/2 of the intestate estate.

Therefore, if your wife refuses to sign the waiver, they proceed with probate. The stepmother receives the entire estate under intestacy and can do what she wishes with the property once she owns it. More inconvenient and probably a bit more expensive, but still with the same outcome. Maybe there is some room for negotiation.

 

[mfirman]

It must have gone to probate then because he is officially the executor (they had to modify the bond requirement to get him approved as executor).
The property was solely in his name. I think the intent of the quitclaim was for the stepmother to turn her share over to the half brother but the document simply states what was previously posted. I had found the information on the statute previously but the confusing part is the waiver. In the letter the attorney clearly states that the estate is moving on as if there is no spouse. If this is the case she would be entitled to half of the estate.
From Section 561:1

II. The part of the intestate estate not passing to the surviving spouse under paragraph I, or the entire intestate estate if there is no surviving spouse, passes as follows:
(a) To the issue of the decedent equally if they are all of the same degree of kinship to the decedent, but if of unequal degree, then those of more remote degree take by representation.

We are just not sure how the quitclaim relates to this. We are probably going to be getting an attorney in New Hampshire to help us with this. Thanks for all of your input.

 

[anteater]

Have you or your wife been to the county courthouse to view the probate case file to see what has or has not occurred to date?

See if stepmother has executed a disclaimer. That is the only meaning that I can attach to "...that the estate will be treated as if there is no spouse..."

One can only guess what is going on in this case. I guess my point of view is shifting a bit. My mind was running along the lines that probate had not been opened yet and, therefore, they still had some options if your wife refused to sign the waiver.

Stepmother and half-brother may have screwed up badly and gotten themselves into some kind of pickle. Like having stepmother execute a disclaimer thinking that would then pass the property on to half-brother alone. And now they are stuck with the disclaimer, with your wife standing to inherit half. Therefore, they are asking your wife to waive her interest in the estate.

The quitclaim may have been presumptuous and part of the screw-up. A quitclaim simply says that the grantor passes whatever claim they have on property to a grantee. If the grantor has no claim to the property, the quitclaim is meaningless. I can do a quitclaim to you granting you whatever interest I have in the Golden Gate Bridge. But, since I don't have a valid ownership interest in the Golden Gate Bridge, the quitclaim deed is only good for recycling (or maybe framing and hanging on a wall).

 

[nextwife]

If title was held as jt tenants between dad and step mom when HE died, she could have then become full owner, subsequently deeding whatever interest she wished to anyone. No probate necessary in that case for step mom to deed out.

 

[anteater]

If title was held as jt tenants between dad and step mom when HE died, she could have then become full owner, subsequently deeding whatever interest she wished to anyone. No probate necessary in that case for step mom to deed out.

Yes, but the OP did say:

The property was solely in his name.