moms property & estate

[missmom2003]

What is the name of your state? illinois
my mom passed away recently with her last wishes being, her three sons inherit everything she owned.
my father passed away years ago, and my mom remarried 5 years ago.
her current husband moved in to the house she owns, (which the deed is in her name only), 3 years ago.
all of the furnishings and property in that house is hers.
we filed her will in court(which was written in 1991) which clearly states what was stated above, however her husband who is living in her house,is going against my moms last wishes(stated above) and wants a quarter of the house after sale.
he also took all of my moms valuable jewelry she owned prior to their marriage,and put it in a safety deposit box without our consent.their are other valuable things involved including, a new car, statues,bank accounts,401k,furniture,ect, ect.
our lawyer believes we should avoid probate and give him the portion, my two brothers and i disagree.
this man had nothing when he met my mom,and should not benefit from the things she bought from my decsesed fathers assests, especially her house!! please help with your professional opinion.

 

[Dandy Don]

Is "OUR lawyer" the executor of the estate or just someone who is advising you and guiding you through the probate process?

Did your mother have the assistance of an attorney when she drew up her will? It looks as if she didn't--and perhaps her will improperly omits mention of anything left to her husband--if it had been reviewed by an attorney that omission would probably have been caught and she should have been advised to leave him something, if only a token amount.

Now, regardless of whether there was a will or not, the surviving spouse is entitled to 1/3 of the estate. It doesn't matter that he had no assets when he came into the marriage, the law protects spouses since the marriage means some sharing of assets. It is most unlikely that he would get exactly the 1/4 of the profit from the sale of the home that he is asking for (although you don't need to tell HIM that), since the money from that would be added to other estate monies, from which outstanding debts and taxes would be deducted, and his 1/3 share would be taken from that amount.

There is no way in the world you will be able to "avoid probate", since this estate looks like its valued at least $75,000 or more (you would need to check at the county courthouse probate court to find out what the minimum amount of estate value is before probate filing is required). This was somewhat of an odd thing for the attorney to say, and you would have to ask him what his reasoning is for saying something like this (is he saying don't submit the will to probate court or is he saying give the husband what he wants so that he won't delay probate by possibly wanting to contest the will?). YOU REALLY DO NEED TO GET HIS ANSWER AS TO WHY HE SUGGESTED THAT PROBATE BE AVOIDED.

His foolish comment about "avoiding probate" would make me seriously think about firing him and replacing him with someone else or at least getting a second opinion from another attorney about almost anything that the first attorney tells you.) It would be foolish and possibly illegal NOT to go through probate. Whoever the executor is for this estate should be going to the courthouse as soon as possible to at least file to become executor and file to open up the probate.

What do you all intend to do about the jewelry--keep it for yourselves for sentimental reasons or try to sell it? Attorney should be able to advise you on how to get the jewelry back from the husband (is husband possibly keeping it as a negotiating tool, withholding it until he gets what he wants from the estate?), at the very least by having the executor go to the bank where the safety deposit box is held and claiming the contents, or at least finding out what the bank's policy is about claiming contents--some banks release only to the executor, others release to family members of the deceased without the executor's knowledge or permission.

DANDY DON IN OKLAHOMA

 

[missmom2003]

re:answers to questions for dandy don

thanks don,
our attorney works with my brother.
my mother had very minimal debt.
he did not say avoid probate, he mentioned like you said ,"it would be less time to complete"
yes, my mother had a attorney, and witnesses for her will.
when we picked the will up it also had a key in the envelope, which is not a safety box key, we do not know what it is for.
we asked the attorney who assisted my mom, and he said" since this was written more than ten years ago, they discard that information"
this will was written before this marriage
the will sais all personal, household effects, cars,and collections to her surviving children
also states the residue of the estate to be given to the descendents who survive her
the jewelry is from previous friends,and our grandparents
thanks again don