Will vs Courts?

[tuffbrk]

What is the name of your state? NJ
BACKGROUND
Am in process of divorce. Most likely not getting to court til the Fall. STBX has End Stage Liver Disease...recetly found a copy of his will. It grants all rights to his mother, authorizes her to seize his interests in any real property, disbursements of cash from insurance proceeds, etc. and that the will supercedes any court rulings.
QUESTION
Would a will overrule current state guideline which does not allow you to remove a spouse as the beneficiary of life insurance proceeds w/out their consent? Am concerned as if he does pass away, I will not receive any Social Security for my 13 yr old due to him not having enough work credits...

Not sure if I should have posted in Family Law but since it's related to the will thought I'd start here.

Thanks.

 

[justalayman]

a will does not and cannot over ride the named beneficiary of a policy. an insurance policy written with a bene passes outside of the probate proceedings.

accepting your statement that a spouses acknowledgement is required to alter a policy bene, the will would not affect a policy of which you are named bene unless you would agree to it.

as far as the simply stating a will supercedes any court ruling, well, he would need a court ruling to make that effective. He cannot set aside a court ruling, only a court can do that.

actually that inclusion makes no sense to me since once a court has ruled as to the divorce or any other situation, the will can only direct assets of the estate, not what was formerly within the estate.

 

[tuffbrk]

It didn't make sense to me either. Based on some missing words, phrases, in some cases what appeared to be sentences, I had thought it was downloaded, DIY type of will...but it was signed by an attorney.
So - that leaves for disbursement to his mother, 1/2 of the house of which he is a co-owner and fully due 50% of any sale proceeds. Would that also include 50% of household furnishings? I don't believe it entitles her to seize "his interest" in my retirement acct or 401K acct until such time as a court of law makes a decision with regard to property distribution.
If after the divorce is final he passes away, she would receive whatever he rec'd and still has left of the divorce settlement. If the house hadn't been sold yet, she'd receive his 50% after the mortgage was paid in full...and 1/2 the furnishings?
I'd receive any proceeds to be used to support my son based upon whatever a court deems appropriate...

Do I have that right? If so, does it than make sense for a will to have been created prior to the divorce? Just seems odd to crete one in the Spring when so much of it will be impacted based on a divorce in Fall.

 

[justalayman]

if he dies prior to divorce, depending on how title is held to the house, MIL may not get any of the house and you may get it all. Even if he survives divorce, depending on how title is held and what the decree states, MIL may still not get anything.

I don't believe it entitles her to seize "his interest" in my retirement acct

if you are reffering to an account in your name, then no, she would have no claim to that account at all. The only reason he would ever have any claim is due to the marriage. When he dies, his interest dies with it. The only exception I can see is if the decree states he is entitled to a given amount from the account which may be considered an estate asset.

re; making a will at this time

everybody should always have an updated will unless their assets are so minimal it has nothing to direct. What he is doing is making it known that MIL is to recieve his assets so if you were to try to claim things as a spouse that are not given to you by contract or statute, it is known that he did not want you to have them. from the way it is worded, it sounds like he is trying to be a PITA since you would have to contest the will during probate if you disagree with its directions, which I'm sure you do. It makes you work for what is yours.

 

[tuffbrk]

Thanks so much for that information. He is being a PITA and it's sad that someone who may potentially die is expending so much time and energy being negative. His choice though.
He doesn't really have any assets. He owned 2 businesses so he has industrial tools worth $$ but they're not noted. He has 2 rings and a watch, one necklace. We're the typical middle income class. So the only asset we have worth anything is the house. I have a retirement acct funded by my employer, I have a 401K and I have stocks and stock options that were awarded as part of my bonus. Half of these accts, etc. will amount to appr. $250,000. I receive nothing monetary in return - but I am the proud mom of 2 wonderful sons that will remain with me so who cares? Does burn me that he's not acknowledging that any funds are from my earnings, and really s/b turned back over to me or placed in trust for our 2 sons. Instead he's allocating it equally with his 2 sons fr a prior marraige both of whom are emancipated. In any event, I'm presuming he's doing what he can to continue to make me miserable, will attempt to do so even from the grave and maybe he just wanted the will to reflect his wishes, regardless that currently he has nothing to bestow other than his 1/2 interest in the house....

 

[Dandy Don]

Will you be receiving child support and/or alimony from the divorce? Exactly what will you be getting from the divorce?

Just curious--how were you able to find out what is in his will?

DANDY DON IN OKLAHOMA ([email protected])

 

[tuffbrk]

Not to sound like the Family Law forum but to answer your ? - I will be receiving my half of the interest in the house. I am not receiving now, nor do I expect to receive, any child support and he has petitioned for a ridiculous sum of alimony from me. All other assets were obtained by me via my employer.

As we continue to reside in the marital home (he's on the deed not on the note) for which I pay for EVERYTHING since I filed (not that I'm bitter! LOL!), it leaves me access to anything he doesn't secure in his office filing cabinets. The will he left in a folder on the couch in the living room which he currently uses as his bedroom. So - I found it and read it.

 

[justalayman]

so, how is title of the house held?;

joint (with rights if survivorship)
tenants in common

or some other type of ownership?

 

[tuffbrk]

HI - sorry so late responding here. The title lists both of our names so presumably it is just plain and simple joint - I don't believe there is any right of survivorship type verbiage - was the standard conventional mortgage deed...I'm going to look one up to verify. Thanks so much for your guidance!

 

[nextwife]

First, as to ownerships, many states have a presumption of Jt Tenancy on a deed for property held by husband and wife UNLESS there is verbage to the contrary. I don't know NJ specifically, but a quick call to a local title company might result in an answer.

Second, if the insurance in question was purchased premaritally, he may nopt have needed any permission to have mom as beneficiary. Might she ALWAYS have been beneficiary?

Third, you are obviously working. Did you not elect for any spousal life insurance options your employer may have had? Surely the policy he has can't be the only one out there that you might benefit from?

 

[tuffbrk]

HI - my question relates to his will that I found.
1 & 2) He has granted in a will dated April 2007 for his mother to be his beneficiary in everything. The state does not allow a spouse to ber removed as beneficiary on life insurance policies w/out prior written, notarized approval. I will be addressing this in my divorce that as he is not supporting our son, nor is eligible for SS benefits if/when he passes away (gosh that sounds so cold) that I remain as the bebeficiary. I've also been advised that any bills deemed a necessity that are incurred during the marriage become my responsibility in the event of his death. So the will becomes an issue for me if he passes prior to the divorce as he included a statement in it that she is to seize his interest in any real properties - that would be our home. I am not certain if he passes prior to our divorce, if that is enforceable or not. My mortgage is standard in that it's fee simple to husband and wife. Not sure if that actually answers the questions?
3) No, I did not. Back in '94 when we mortgage the home it was not available thru my employer (small co) after a series of mergers, it did become available however as I was already paying life insurance for me, him, his 2 children from his first marriage and my eldest son, I didn't obtain any additional.

Your thoughts are greatly appreciated!

 

[nextwife]

Did you even READ my entire post?

I advised you that it is possible that, as a husband and wife in title together, in the absence of any language to the contrary, your state may have a PRESUMPTION of Jt. Tenancy. If this IS the case, his interest would automatically transfer at death to the surviving jt tenant, once the form needed is filed. Your divorce attorney can easily contact the attorney of whatever title company he uses and confirm what the case is in YOUR state. If this IS the case, the will is moot as to the house.

 

[tuffbrk]

Hi - yes I had read your entire post. I didn't understand joint tenancy meant anything other than that we both had an interest in the property and so I wasn't aware of the potential for his interest to be automatically assigned over. TY for clarifying the definition. We used an attny to close the loan, however I have a copy of our title policy so presumably I can call them and they can let me know if there are any provisions/presumptions contained within it. I've read it twice myself and can't find anythng - but considering I didn't understand your original response, for all I know the answer is staring me in the face! Thanks for your help Nextwife!
P.S. Can you believe I work for a mortgage company?! Obviously I'm not in the origination end of it...thanks again...

 

[nextwife]

You're welcome.

People apparently have no idea how very important both the names in ownership and the form of ownership between them, is in any future issues involving the property. If titled a certain way, the will would have NO bearing on disposition of the decedants ownership.

In other words, the deed language may have total control over what happens with the house.

 

[tuffbrk]

My title company has apparently gone through a number of mergers so they're trying to check on the policy # to identify it. The policy reads - the estate or interest in the land described and which is encumbered by the insurance mortgage is fee simple and at date of policy vested in XXX and YYY, Husband and Wife.

The person I s/w said that when held as husband and wife, the presumption would be tenants by the entirety, as it is the marital home. Then went on to say that tenancy held by the entireties means the interest would pass to the surviving spouse & they don't "think" it can be changed by will. Tenants in common, on the other hand, could be "willed" away...meanwhile I find no verbiage references to tenancy beyond the fee simple verbiage!

So looks like I"m going to have to wait on the title company to see if they can identify what company currently has the policy...