Will/probate question...kinda long

[Lisa L from MI]

Not sure if I posted this or not before...I did a search on my posts and didn't see it...not sure why I didn't come here for advice?

Anyway, DH's grandpa passed away this past June. He had a will. Grandpas will was drawn up in FL but moved to MI about 5 years ago. No assets at all left in FL. DH's dad was the executor of the will. ALSO, and this is where I think it gets tricky...and will add to determining my question coming up below......When grandpa came to live with DH's dad.....grandpa put dh's dad as a joint person on his checking account. Grandpa was dwindling in health...he died at 98 years of age.

Now, more background, we have not spoken to DH's dad since Sept of 2003. It is a crazy thing and shouldn't matter in this situation really...just a very very petty thing on Dh's dads part.

This past September, we get some mail! The kids each got some money (as expected) and it was correct. Then we opened DH's envelope and this is how exactly it read:

FROM THE ESTATE OF XXXXXXX, THE SUM OF $XXXXXXX WAS BEQUEATH TO "DH'S NAME", GRANDSON

TRUSTEEE
"PAULS DADS NAME"


THEN.....on the bottom of the paper, it says:

Paul...
You have a debt of $XXXXX that is over 4 years old. I am deducting that amount because if I don't, I will never see it.

Signed.....his dads whole name....(not even "dad")


Anyway....for one....there was never any loan we took from him...yes...he did give us this sum of money....but we didnt even want it....it was GIVEN to us and DH's dads ex (who I still talk to) remembers this. She even has the check number, date etc......Paul was out of work and he wanted to help us out a little.....it was written from Pauls dads business account as well.

Anyway...I don't think he has the right to take this out of Pauls inheritance from Grandpa....this so-called debt (although it isn't a debt) had nothing to do with grandpa etc.

I have talked and searched on the web and found out a bunch of info. The will has not been filed and probably will not be either. The monies have already been disbursed. I am unable to obtain a copy of the will either!! I even found and called the attorney in FL that drew it up and let them know of the death. They said they were unable to send us a copy eventhough DH was listed as a beneficiary...which I disagree with...but that is hard to do with a lawyer..

Alot of people said since they had a joint checking together I am lucky to get what we did....that the joint checking acct takes presidence (sp) over the will and since DH's dad was joint could do anything he wanted with that money in the account.

Hope this make sense and I hope someone has some input in this. I think, if the will was filed it would be cut and dry....but it isn't.......


TIA

Lisa

 

[Zurealsoon]

I would contact the lawyer that is handling the estate-has to be one-not just the Dad.

 

[Lisa L from MI]

I would contact the lawyer that is handling the estate-has to be one-not just the Dad.

That is the whole thing...there is no "estate" the only thing was this money in the "joint" checking account shared with DH's father. Grandpa did not have anything else.

 

[DisneyMomOK]

If there is no attorney, who filed the Estate Tax return? Sounds like Dad is just disbursing and not following the rules, especially if there are 6 figure disbursements. I doubt, especially if the funds to DH came from a business account, that your FIL is going to want to get too involved with the IRS. Don't know a lot about this, but it sounds like an estate attorney who is also a CPA (I have a nephew who is one) should be asking some questions of Dad.

JMHO.

Sharon

 

[Chuck S]

The estate laws vary state to state. When my Grandma died in CA years ago, it depended upon how the checking account was set up. If it was a true joint account, where either could sign, yes...it took precedence over the will. If more than one sig was required, it would depend upon the specific wording on the account.

But these laws are different from state to state.

Also deducted from each heirs share is the estate's attorney fee, and a fee for the executor/administrator of the will (in most states).

 

[Lisa L from MI]

The estate laws vary state to state. When my Grandma died in CA years ago, it depended upon how the checking account was set up. If it was a true joint account, where either could sign, yes...it took precedence over the will. If more than one sig was required, it would depend upon the specific wording on the account.

But these laws are different from state to state.

That is EXACTLY what is was.....joint checking-wise...I have talked to a couple lawyers at the place I used to work at....and they were the ones that said "You are lucky for what you got"...the thing is...I still am sitting on the check....I think I should go cash it. It is not a ton of money...but still alot to us and it is the principle of the matter....you know what I mean....DH's dad just did this to be the jerk he is...........

 

[doxdogy]

I remember when my grandfather passed away my dad was on his checking account as a joint owner. It was my mother's father and they were seeing a lawyer regarding his house and the contents. The attorney told my father (I went with my parents to the attorney's office), that the money in the account "belonged" to my father and he could do with it as he pleased. That my Aunt (she was causing problems) could do nothing about it.

 

[Lisa L from MI]

I remember when my grandfather passed away my dad was on his checking account as a joint owner. It was my mother's father and they were seeing a lawyer regarding his house and the contents. The attorney told my father (I went with my parents to the attorney's office), that the money in the account "belonged" to my father and he could do with it as he pleased. That my Aunt (she was causing problems) could do nothing about it.

I really am starting to think we should just go cash that check ASAP...cause I keep hearing this as true as far as the joint checking goes.....hopefully he didn't close out the account!!! Like I said, it isn't a ton of money...but would really help this time of year!!! When we do cash it, DH's dad will get a "nice" letter from me for sure!!!! That is another story all together!!!!

Thanks for your input

 

[DisneyMomOK]

I would cash the check and then pursue the additional money. Since you know the check number, etc. of the gift, perhaps you could use that info to your benefit and bring up the following in a letter: you and exMIL thought the amount was a gift from your FIL, there was no document showing it to be a loan, and then "suggesting" since it was on the business account, did your FIL show it to be a cash disbursement to himself OR was it shown as a business expense, in which case you would like the money to make the payment to the business, thus making it all legal with IRS, etc. It sounds like there will be no "making up" and if you feel strongly that DH's grandad would want him to have that money (which I believe you do), perhaps this would be a way to pursue it before you start with attorneys.

Good luck; family problems are always the worst.

Sharon

 

[mrsv98]

*not legal advice*

Each state has individual laws regarding wills. If there was an actual will, regardless of the amount of the "estate" then by law, the executor has to file it (in most states anyway). He doesn't have to go thru probate, but it should be filed. As for the checking account, if they were joint owners or your DH's dad had right of survivorship, then the money in his and not subject to any will. Basically, if your DH's dad could withdraw money from the account on his own then he is a co-owner.

If I were you, I would cash the check tomorrow, money in the hand is better than nothing. Check with an atty or CPA, I believe each member of your family can recieve a gift of $11,000 without incurring a tax penalty.

Sorry for this, but really, your DH's dad didn't *have* to give you anything in this situation so at least he is doing something. I know it can be galling, but families get weird when their is an inheritance.

Good luck.

*not legal advice*

 

[Chuck S]

If the peceived debt was over 4 years old, the statute of limitations had probably run out, and had he taken it to court, most likely he would have gotten nothing. However, had you taken him to court to try to get a share of the estate, you would have lost. He was under no obligation to give you a dime, his mistake was attaching the note that said he withheld money for the "perceived" loan. If he had not done that, you'd have no case at all. You now have extra money from your DHs dad's "generosity" of sharing the estate, and you're complaining...a court may not look favorably upon that, given that you are still money ahead.

Legally, it was not taken out of "Paul's inheritace from his grandfather", legally it was a "gift" from his dad. And "dad" was free to give any amount of "gift" he wished.

It would be like someone saying "I love you, I'm giving you $200, I would have given you $1000, but you never paid me back for a $800 loan I gave you 10 years ago." A doubt a court would make that person give you another $800.

 

[AMcaptured]

From personal experience, once you cash the check you are in many ways accepting the settlement. I would think twice before I cashed that check.

My father was involved in an estate dispute and he was left $1 by a person who had confiscated his late aunts estate. As long as my father didn't cash the check, he could contest the will.

I would think twice before I cashed that check but Good Luck!! I feel for you.

 

[Lisa L from MI]

If the peceived debt was over 4 years old, the statute of limitations had probably run out, and had he taken it to court, most likely he would have gotten nothing. However, had you taken him to court to try to get a share of the estate, you would have lost. He was under no obligation to give you a dime, his mistake was attaching the note that said he withheld money for the "perceived" loan. If he had not done that, you'd have no case at all. You now have extra money from your DHs dad's "generosity" of sharing the estate, and you're complaining...a court may not look favorably upon that, given that you are still money ahead.

I am really just trying to confirm all what I heard about him (dh's dad) being joint on the checking with grandpas account....both DID NOT have to sign......

 

[Lisa L from MI]

From personal experience, once you cash the check you are in many ways accepting the settlement. I would think twice before I cashed that check.

My father was involved in an estate dispute and he was left $1 by a person who had confiscated his late aunts estate. As long as my father didn't cash the check, he could contest the will.

I would think twice before I cashed that check but Good Luck!! I feel for you.

I know what you mean on "settling" if we cash it...that is why I am still waiting but am afraid he is now gonna close the account.....and we will be out of that.

 

[Lisa L from MI]

And...maybe this would be straight to the point question.....since they were joint on the account....what would happen if dh's dad just drained the acct and couldn't adhere to the will???

 

[Chuck S]

If the joint account was the only asset, as you suggest, the will does not matter, except in the naming of the executor/administrator. And that is only if the account had enough cash in it at the time of Gramp's passing to subject it to estate tax. I'm not sure what the amount is now, I think $600,000 before any estate tax is assessed.


There may also be a state estate tax...that will vary by your location.

 

[Lisa L from MI]

If the joint account was the only asset, as you suggest, the will does not matter, except in the naming of the executor/administrator. And that is only if the account had enough cash in it aat the time of Gramp's passing to subject it to estate tax. I'm not sure what the amount is now, I think $600,000 before any estate tax is assessed.

There may also be a state estate tax...that will vary by your location.

thanks!!! And again, it is not really that much money...the principle of the matter really....but he did "take" 2/3 of our money....I think we will just cash it and I will write the "letter".....pretty sad when the man cut ties with dh's brother when he was 18 (he is now 42) and lost having 2 grandsons there........he will die a lonely old man...that is what everyone says.......like I said too, it is a long story with this man....I have known/dated DH since 1983 and have disliked his father since......BTW, he may now be working on making it marriage #4!!!

Thanks again EVERYONE...think we will cash the check first thing Monday....will at leat make Christmas shopping easier on us....LOL!!!

 

[DisneyMomOK]

I am certainly not an attorney, either, but your FIL said in the letter your DH was to receive $X, as Chuck pointed out earlier. There appears to be no question that your FIL respected his father's wishes on that account and the total number was clearly stated by FIL. Consequently, I would cash the check (bird in hand) and then pursue the disputed gift portion. A check only has a certain life, even if FIL does not close the account and if it would make life easier to have the money now, then I would not hesitate to check it.

Sharon

 

[Lisa L from MI]

I am certainly not an attorney, either, but your FIL said in the letter your DH was to receive $X, as Chuck pointed out earlier. There appears to be no question that your FIL respected his father's wishes on that account and the total number was clearly stated by FIL. Consequently, I would cash the check (bird in hand) and then pursue the disputed gift portion. A check only has a certain life, even if FIL does not close the account and if it would make life easier to have the money now, then I would not hesitate to check it.

Sharon

Yea, I know...but it also all comes down to the will not being filed here in the county that he died. With no will in my hand, I have nothing to stand on really....I have been calling weekly to the probate court and nothing. Of course it would be not filed when he disbursed everything and we are the only ones he "screwed".....The father could care less.

It is true, how the letter was written, according to an attorney I talked to where I used to work...but again, she said.....the will had to be "filed" before we could attempt anything...either that...or if I could get my hands on a copy which is really impossible.....and I don't want the "life" of the check we have to run out.....we will never make amends with the man.....so we probably should just cash it and be done with it.

I really just wanted to see if anyone else has heard about the joint checking taking precedence to the will....

Thanks

 

[Chuck S]

Yea, I know...but it also all comes down to the will not being filed here in the county that he died. With no will in my hand, I have nothing to stand on really....I have been calling weekly to the probate court and nothing. Of course it would be not filed when he disbursed everything and we are the only ones he "screwed".....The father could care less.

It is true, how the letter was written, according to an attorney I talked to where I used to work...but again, she said.....the will had to be "filed" before we could attempt anything...either that...or if I could get my hands on a copy which is really impossible.....and I don't want the "life" of the check we have to run out.....we will never make amends with the man.....so we probably should just cash it and be done with it.

I really just wanted to see if anyone else has heard about the joint checking taking precedence to the will....

Thanks

And just so you know, it isn't just joint bank accounts; stocks, bonds, and real estate can all have "right of survivorship" and supercede a will, even though both parties would have had to sign to transfer them if both were living, as long as there is no lien or mortgage against them.