unsure of legal rights of surviving spouse

[vtsgrizz]

What is the name of your state? colorado

my step father died a few years ago, in his will he made stipulations that the house that my mother lives in and is paying for is to go to his son upon her death. my mother has been paying for everything involved with this house from the beginning and is still paying for it , she doesnt think she has the right to sell it or will it to her kids.. im just wondering about this because it doesnt seem right . and what happens to it if she goes into a nursing home , this home is not paid off. she has a big mortgage on it and the son of the step father does nothing about the improvements,maintenance,insurance or anything. seems to me that my mother is paying a mortgage on a place that only carries rental rights. were thinking we need to find an attorney and see if we need to contest the will or are we too late?

 

[BelizeBreeze]

What is the name of your state? colorado

my step father died a few years ago, in his will he made stipulations that the house that my mother lives in and is paying for is to go to his son upon her death. my mother has been paying for everything involved with this house from the beginning and is still paying for it , she doesnt think she has the right to sell it or will it to her kids.. im just wondering about this because it doesnt seem right . and what happens to it if she goes into a nursing home , this home is not paid off. she has a big mortgage on it and the son of the step father does nothing about the improvements,maintenance,insurance or anything. seems to me that my mother is paying a mortgage on a place that only carries rental rights. were thinking we need to find an attorney and see if we need to contest the will or are we too late?

let me guess, your stepfather owned the home before he married your mother right?

 

[Dandy Don]

Whose name is on the house now, according to the title/deed? Was any ownership transferred to your mother during the probate process?

Most likely the stipulation that the husband placed on the home is invalid--if mother assumes the mortgage and eventually pays it off, the home will be hers to do whatever she wants with and the will can not be enforced. She needs an attorney's advice to see how the probate was done and if the deed is titled correctly and she may need to make her own will out if it turns out she has any legal interest in the home.

DANDY DON IN OKLAHOMA ([email protected])

 

[vtsgrizz]

the house was bought from the proceeds of the step fathers sale of the house he lived in with his first wife. but was bought after my mother and he were married. as far as the title/deed it is in my mothers name. he passed a year after the house was bought , and were not sure of the probate issue

thanks for your responses

 

[Zigner]

the house was bought from the proceeds of the step fathers sale of the house he lived in with his first wife. but was bought after my mother and he were married. as far as the title/deed it is in my mothers name. he passed a year after the house was bought , and were not sure of the probate issue

thanks for your responses

I guess a more appropriate question is: Exactly HOW is the title held?

 

[seniorjudge]

Colorado Intestate Succession Laws

If any part of a Colorado decedent's estate is not effectively disposed of by will, the intestate share will be distributed in the following order and manner:

1. Surviving spouse. A surviving spouse is generally first in line to get any assets from the intestate estate. However, the amount a surviving spouse is entitled to varies as follows:

* If no surviving descendant or parent of the decedent, the surviving spouse gets the whole intestate estate.
* If all of the decedent's surviving descendants are also descendants of the surviving spouse and there are no other descendants of the surviving spouse who survive the decedent, then the surviving spouse receives the whole intestate estate.
* If no descendant of the decedent survives the decedent, but a parent of the decedent survives, the surviving spouse receives the first $200,000, plus three-fourths of any remaining balance of the intestate estate.
* If all of the decedent's surviving descendants are also descendants of the surviving spouse, and the surviving spouse has one or more surviving descendants who are not descendants of the decedent, the surviving spouse receives the first $150,000, plus one-half of any remaining balance of the intestate estate.
* If one or more of the decedent's surviving descendants are not descendants of the decedent's surviving spouse, and all of such surviving descendants who are children of the decedent are adults, the surviving spouse receives the first $100,000, plus one-half of any remaining balance of the intestate estate.
* If one or more of the decedent's surviving descendants are not descendants of the decedent's surviving spouse, and if one or more of such descendants who are children of the decedent are minors, the surviving spouse receives one-half of the intestate estate.

2. Heirs other than surviving spouse. Any part of the intestate estate not passing to the surviving spouse as indicated above, or the entire intestate estate if there is no surviving spouse, passes in the following order of availability to decedent's:

1. Descendants per capita at each generation.
2. Parent or parents equally.
3. Parents' surviving descendants per capita at each generation.
4. Surviving grandparent(s) equally.
5. Grandparents' surviving descendants per capita at each generation.
6. Surviving birth child (defined as a child who was born to, but adopted away from, his or her natural parent) or children per capita at each generation. The birth child must file a claim for inheritance with the court having probate jurisdiction over the decedent's estate within 90 days of decedent's death.
7. Birth parent (defined as the natural parent of a child who was born to, but adopted away from, the natural parent) or parents equally.

3. State of Colorado. If there is no taker under any of the above provisions, the intestate estate passes to the state of Colorado and disposed according to Colorado's unclaimed property laws.

Colorado Intestate Succession Law Fun Facts

* Relatives of the half blood inherit the same share they would inherit if they were of the whole blood.
* Any person who fails to survive the decedent by 120 hours is deemed to have predeceased the decedent for purposes of intestate succession (which means that the person generally doesn't get a share of the decedent's estate). If it cannot be established that the person who would otherwise be an heir has survived the decedent by 120 hours, the person is considered to have failed to survive for the required period. However, these rules don't apply if the end result is that the state of Colorado ends up with the intestate estate.
* Relatives of the decedent conceived before the decedent's death, but born thereafter, inherit as if they had been born during decedent's lifetime (provided they survive at least 120 hours after birth).
* Colorado's intestate succession laws, as well as other related laws, can be found in Title 15 of the Colorado Revised Statutes.

Copyright 2002 - 2007, CCH Incorporated, a Wolters Kluwer business. All Rights Reserved.

http://www.finance.cch.com/pops/c50s10d190_CO.asp

 

[nextwife]

the house was bought from the proceeds of the step fathers sale of the house he lived in with his first wife. but was bought after my mother and he were married. as far as the title/deed it is in my mothers name. he passed a year after the house was bought , and were not sure of the probate issue

thanks for your responses

If the house has truly been titled to mom, then stepdad's probate does not control it's disposition.

You need to tell us exactly how title is held. Mom alone? Mom and Stepdad, as JTWROS or as H&W? Is there a life estate, witgh stepdad's son as owner? How?

 

[vtsgrizz]

i have to get mom to dig out the title and the will and then i can look it over, mom said tonight that she believes the home to be in her and step dads name , with no mention of the son but she is just not sure. so tomorrow i will help her dig that up and see what we find there.

thanks again

 

[nextwife]

i have to get mom to dig out the title and the will and then i can look it over, mom said tonight that she believes the home to be in her and step dads name , with no mention of the son but she is just not sure. so tomorrow i will help her dig that up and see what we find there.

thanks again

It is also important to know the EXACT deed language: Mary and John Smith as H&W, for example.

If RE is held in an ownership manner that would automatically tramnsfer the decedant's interest to the co owner upon death, the property would pass OUTSIDE probate, and the decedant's will cannot deny the co-owner their rights to assume full ownership/.

 

[seniorjudge]

...
It is also important to know the EXACT deed language: Mary and John Smith as H&W, for example.
....

And that, of course, would be a bad vesting.

 

[vtsgrizz]

ok, well we have a lot to think about , and another rub to the story ; mother has not been feeling well for some time ,, step son came over a few months ago and had mother sign something , none of mothers children were around and mother doesnt like to make waves; so were clueless as to what she signed and to top that off ,, suddenly; as we looked high and low today , mother doesnt have any of her paperwork anymore , nothing regarding the house , how it was signed , nothing ,,,,,,,,,,,,,, sooooooo i am imagining that mother is in dire need of an attorney .

also , step father was a realtor , son is a realtor , they had their own real estate company , son still has that

i thank you all for your help and will see where we end up from here

 

[colourfastt]

ok, well we have a lot to think about , and another rub to the story ; mother has not been feeling well for some time ,, step son came over a few months ago and had mother sign something , none of mothers children were around and mother doesnt like to make waves; so were clueless as to what she signed and to top that off ,, suddenly; as we looked high and low today , mother doesnt have any of her paperwork anymore , nothing regarding the house , how it was signed , nothing ,,,,,,,,,,,,,, sooooooo i am imagining that mother is in dire need of an attorney .

also , step father was a realtor , son is a realtor , they had their own real estate company , son still has that

i thank you all for your help and will see where we end up from here

The deed to the house can be found in county/parish courthouse. Go the recorder of conveyences (or your local equivalent) and do a search for the house. You will find the information you're looking for.

 

[nextwife]

The good news is that, if he notarized any document himself that transfers the property to him, or gives him POA for mom, the validity can be challenged.