Legal obligation to pay property equity from divorce settlement to deceased exhusband

[ohiomom1]

I am trying to understand what my legal obligation is in the following situation. I have been divorced for the past 12+ yrs.
with 1 son, less than 18 yrs old. My exhusband passed away
1 year ago. Per our divorce settlment, I owed him a set amount
of money based on the equity we had in our home at the time of the divorce. This was not payable until my son is 18, we sell the house, or I re-marry/co-habitate.
My exhusband died without a will. The equity was not listed as a probate asset.

Question: I have until my son is 18 and graduates high school
(per the divorce statement) to pay the money. But to who is the money paid to? My Exhusband was remarried, but had no additional children. If this is paid to the "estate" - how is the money distributed between the widow (2nd wife) and my son?

thanks

 

[advisor10]

1-4-2002

DEAR OHIOMOM:

Please explain how you think this money is intended to be used. Is it basically a gift to your son that he can spend any way he wants? Or is it for him to go to college?, etc.

How old is your son now?
How much money do you have to pay?
When do you intend to start paying this money?

Since the equity was not listed as a probate asset, technically you don't have to use the probate process in repayment, if you don't want to. If there is no administrator of his estate, you could inform the wife that she needs to file paperwork to become the administrator of his estate so she can officially begin receiving your payments, made out to the estate.

Even though your ex-husband had no will, it is very likely that there was an intestate probate proceeding of his estate. Check at the probate court of the county courthouse to see if a probate file exists for him (you need to know the month and year of his death). If there is a file, it will show the name and address of the administrator of the estate, and that is the person to whom you will mail the payments to, along with a letter explaining what the payments are supposed to be used for.

Do your son and ex-wife know about this repayment that you are supposed to make or will it be news to them? Sometimes, when someone dies, some debts are forgiven and you may not really have to pay this money unless you really feel you have a moral obligation to do it, and you probably do want your son to benefit from this money.

I think it would be better and easier for you and more convenient to not even consider this as a probate matter at all. You could set up a savings account or a trust account at a bank (either in the same city where you live or in the city where your son lives), with the account being set up in your name with your son as the beneficiary (payable on your death or at any other time you decide), and begin making payments to that account. Then the account could be growing with interest until a few years in the future when your son would be able to claim it. You could specify that your son be able to receive the money at some future date in his adulthood (for example, after you die, or when he reaches age 25, etc.)

It is generally not a good idea to give young people money since their tendency is to splurge or waste it and not use it responsibly. However, if you feel he is a responsible person, you could even make the payments directly to him.

SINCERELY,

advisor