newly widowed second marriage

[klptaz]

My mother is recently widowed after marrying for the second time in the autumn of her life. It was agreed before marriage and a codical added to his will that she could remain in his house after his death for as long as she wishes as long as she did not remarry. All other of his possesions along with life insurance etc goes to his two middle aged children and their families. She now finds out that the house was refinanced and she will have to take over the house payment each month, even though upon her death or moving out the children will inherit the house. We dont want this situation to get sticky but cannot see the fairness of her making house payments to remain in her husbands house since that was his wish. I assumed under Illinois law that all of his outstanding debts need to be cleared by the estate soon after his death so in essence she will be paying rent. What should we do without rocking the boat?

 

[dmode101]

You need to carefully review the will and Illinois law to determine if she, or the estate, would be required to make the mortgage payments and/or rent while she is living there. Don't assume that the executor will just do the right thing.

In addition, in Illinois a surviving spouse can choose to "renounce" (aka "elect against") the will and take a statutory 1/3 share of the probate estate. Even further, a surviving spouse is entitled to an award of at least $10,000 from the probate estate for 9 months' maintenance.

I am an Illinois probate attorney located in the northwest suburbs of Chicago. Feel free to call me to discuss this situation. Contact info at my website at http://www.illinoisestateplan.com

 

[klptaz]

newly widowed

Thank you, that makes me feel a little relieved that she does have some recourse if need be. One other question that did come up that was a little shade also. They want her to give the son her paid in full car and she can take over the payments to the nicer car that her deceased husband bought while married to her. Even though her name isnt on the title wouldnt that be considered hers now? without the "trade-off".

 

[dmode101]

If the car is titled in the decedent's sole name then it is part of the estate and it passes under the will. If it is titled in joint tenancy then it (along with the loan) passes directly to her by operation of law. The proposed trade may or may not be fair, it's impossible to tell without examing the numbers and situation closely. I strongly suggest that she not make any "deals" like this without consulting her own attorney.

The "recourse" that I mentioned is subject to time limitations. Again, I strongly recommend that your mother contact an attorney soon to examine the situation and determine her best course of action. Even if she chooses not to elect against the will, if there is a probate estate she should still be entitled to receive the spouse's award...but do not assume that the executor or the court will take care of this for her.

Happy holidays!

 

[klptaz]

Thanks again...and the saga continues. She finally got a copy of the will today after the two stepchildren took the will to the lawyer without her. We are going to him with questions in hand tomorrow such as what she is responsible for such as: car payments, taxes, medical bills, utilities for the last couple months of his life, etc. We will go to him with an open mind assuming that since she was the wife and he is was their lawyer also that he will be ethically fair in stating what is what, but we do hold the option of going to another attorney if need be. We need to find out the interpretation of the will as it states that she can be a life tenant in the house and after she abandons or dies then the children inherite all the rest of the real and personal property. After seeing the will the estate is pretty vague except the naming of some jewels and family heirlooms. They were named in his life insurance and on some cd's also. What I have read the contents of the house stay with the house, but the kids are coming this weekend to take away some things.......She wants them to have what was their mothers and wanted that before her husband even got sick but he wouldnt let go of them, now she gets to deal with it. How sad that a seemingly happy family can be split by no communication....and very obvious vagueness by those that were at the attorneys already. My thought: they know that Mom has more rights than they are willing to give....or tell her about.

 

[dmode101]

Your last thought is almost certainly correct. Understand that the attorney doesn't represent "the family" or your mom anymore, he represents the executor only (assuming the exec has hired him). He does still have some obligations to all beneficiaries under the will, but I don't believe that obligation includes specifcally informing each beneficiary of all of their options (e.g. your mom's right to a spouse's award and right to renounce).