Executor Question

[imheatherly]

My dad passed away in Alabama and named me as executor. He had a will that named my brother and I as 100% beneficiaries but he got remarried last year and thought he was protected because he had a will. He failed to update will to include new wife or get a prenup... sigh. (I know the new wife will be wanting an interest even though she has not filed anything as of yet to contest the will)

Can I proceed as planned to liquidate the estate (and personal residence) even though his current wife still lives in the home? The home is in his name only, acquired before new marriage - No life estate deed. The home was originally in my parents name WITHOUT joint right of survivorship but I think we ignorantly signed our interest over to our dad when my mom passed away. (I am trying to check on that for confirmation)

Thanks for your time!

 

[Zigner]

https://law.justia.com/codes/alabama/2006/30792/43-8-70.html
New wife may be entitled to a portion of the estate. You should probably speak with a probate attorney in Alabama.

 

[imheatherly]

https://law.justia.com/codes/alabama/2006/30792/43-8-70.html
New wife may be entitled to a portion of the estate. You should probably speak with a probate attorney in Alabama.

I'm pretty confident that she is entitled to a portion of the estate, but I wasn't sure if I could sell home that she is currently living in? or does she have any rights to occupy home because she is his wife and keep me from liquidating. (proceeds will go into estate account and split according to the law)

 

[LdiJ]

In Alabama the widow or widower (if not included in the will) has the right to take an elective share of the estate of 1/3 of the value of the probate estate, the total of the decedent's estate minus the value of the widow or widower's estate, whichever is less.

She has the right to make that election, whether or not she will is anyone's guess. As the executor, you might have an obligation to inform her of this if she does not know. You should get a consult with a local probate attorney.

 

[LdiJ]

I'm pretty confident that she is entitled to a portion of the estate, but I wasn't sure if I could sell home that she is currently living in? or does she have any rights to occupy home because she is his wife and keep me from liquidating. (proceeds will go into estate account and split according to the law)

Give her plenty of notice that the house is going to be sold.

 

[imheatherly]

In Alabama the widow or widower (if not included in the will) has the right to take an elective share of the estate of 1/3 of the value of the probate estate, the total of the decedent's estate minus the value of the widow or widower's estate, whichever is less.

She has the right to make that election, whether or not she will is anyone's guess. As the executor, you might have an obligation to inform her of this if she does not know. You should get a consult with a local probate attorney.

Thank you. I have a probate attorney I just can't get any answers to questions in a timely manner and it just keeps getting dragged out. She has her own attorney so I can't imagine she's won't contest the will but she hasn't yet and it's been 8 months.

 

[Zigner]

Thank you. I have a probate attorney I just can't get any answers to questions in a timely manner and it just keeps getting dragged out. She has her own attorney so I can't imagine she's won't contest the will but she hasn't yet and it's been 8 months.

She doesn't need to "contest the will". She can elect to take her share, per the law. Since not much has happened, 8 months isn't that long. Since you have an attorney, you're going to need to keep pushing that attorney for answers (or find a new attorney).

 

[imheatherly]

She doesn't need to "contest the will". She can elect to take her share, per the law. Since not much has happened, 8 months isn't that long. Since you have an attorney, you're going to need to keep pushing that attorney for answers (or find a new attorney).

I gotcha. That's what I meant- Elect to take her share. thanks for your help.

 

[imheatherly]

In Alabama the widow or widower (if not included in the will) has the right to take an elective share of the estate of 1/3 of the value of the probate estate, the total of the decedent's estate minus the value of the widow or widower's estate, whichever is less.

She has the right to make that election, whether or not she will is anyone's guess. As the executor, you might have an obligation to inform her of this if she does not know. You should get a consult with a local probate attorney.

Just reread your comment. I was under the impression that since my dad didn’t include her in the will, it’s as if the will doesn’t exist? She would get 1/2 of estate.

 

[Zigner]

Just reread your comment. I was under the impression that since my dad didn’t include her in the will, it’s as if the will doesn’t exist? She would get 1/2 of estate.

Your impression is wrong. READ the LAW I quoted.

 

[imheatherly]

Your impression is wrong. READ the LAW I quoted.

I mean that’s great news! That was what the probate attorney told me. I will make him reread the law!