My brother, 2 years younger than my 75 years, and I were to split everything 50-50. He died unexpectedly 10 months before Mom. I'm the only living 'child'; but shocked that his children are legal heirs to his half. Disgusting - as they had nothing to do with her for years after she quit handing them money!
There is only her modest house and years of worthless accumulation, and a 2005 minivan with dead battery and dry rotted tires.
I am joint owner of her bank accounts, from which I took care of her financial needs for the last 3+ years. I take comfort that at least the accounts belong to me and not to the estate - hopefully (?).
I consulted a lawyer before Mom passed. I had 1 meeting with him afterward in which I authorized him to inform my brother's kids (who were as shocked as I; but now greedily expectant).
His statement was, "if there's no will there's no need for probate". I didn't ask what steps to take, but thought he would handle the rest. It's been 7 months with no word from him nor response to my messages.
I am holding a $5k refund check from Mom's facility that was void after the first 60 days.
I am searching online reviews for legal help because I don't know the first step in resolving the estate. Lawyers only want big money.
For anyone not here yet, find out what you don't know legally while you can get the correct documents in place!
you will need to resolve this some how. Is there a will ? Were you comfortable with the lawyer ? Make an appointment with the lawyer or another .. the estate should pay for it..
My opinion and thought process is , if there is not a valid will
your brothers children have no claim.
If I can ever get any clear direction and begin the process I will contact them again.
Go online to her county's (or district's) website and search "probate" to find out if it is required. You can probably even call the govt offices and the clerk can tell you.
When I did a search: Minnesota+"when is probate required" here is what came up...
"If your personal property exceeds $75,000 or you own real estate in your name alone, your estate must be probated."
Source: https://www.ag.state.mn.us/consumer/handbooks/probate
The need for probate is triggered not by the presence of a Will but by the amount of assets left in the deceased's name.
I was the only one taking care of my mom's interests as POA.
You probably would have liked what my MIL has done with one of her properties -- her 5 children own it, and she has a life estate. If any of her children die, their portion gets split amongst the other sibs -- it does NOT go to that child's heirs. I think THAT is grossly unfair. Not that *I* expect my husband's 1/5 if he were to die, but I think our children most certainly do. My parents had their trust set up so that me and my brothers were equal beneficiaries. If any of us were to die, that sib's portion would go to their children. If they didn't have any children, only then would their portion be split amongst the other sibs.
What exactly is this modest house worth? Is it worth fighting over? What were you going to do with it?
I would think the money in the joint bank accounts is all yours.
Since your mother died essentially intestate, the laws of the state prevail in how her estate is split up.
My brother lived with my mom for 15 years. It was a comfort for her that he was there in the later years when she was disabled. He saw that she was fed and did what he could for her. He was not a good handler of money. He could not have afforded to move from her house if he were living. I would never have expected him to. But never would it have occurred to me that his kids would have a say about anything! I lay awake at night scenario-dreaming about my regrets and if-only-I-had.......
https://www.nolo.com/legal-encyclopedia/intestate-succession-tennessee.html
i’m a lawyer.
the laws regarding wills differ a lot from place to place.
in fact as you said, that lawyer told you, in the state of TN that is the law (children of your brother are heirs). i don’t know TN law.
you’ll have to ask for a second opinion: another TN lawyer.
side-note:
in many countries, that’s indeed the law: no will, then children of a deceased sibling are also heirs. in fact in many countries, even with a will (no matter what the will says), children of a deceased sibling are heirs. in many countries (especially in some european countries), no matter what the will says, siblings (for example you and your brother) must inherit equally.
i’m sure you’ve checked the internet for TN law. you’ll have to keep looking. the best is to contact a 2nd TN lawyer.
if you make mistakes, and your brother’s children contest the way the inheritance was distributed, it can drag on for a long time.
My brother's children wouldn't have had any idea they had a claim. As I said they have not been in contact with us or even cared how Mom was doing for years!
As a lawyer, do u have any idea why 'my' lawyer won't respond to tell me the steps I need to take in order to sell the house and settle the estate? I paid him over $600 for the times I met with him. He said his fee would be $2700 at the settling.
https://www.clearestate.com/en-us/blog/tennessee-intestate-succession#:~:text=If%20someone%20dies%20intestate%20in,then%20passes%20to%20any%20siblings.
Also, what about her "handwritten unwitnessed will"... does it have no legal weight at all in this case? Seems like it should. What reason did the attorney give that this document is not valid?
The lawyer says it is not valid because there should be 2 witnesses and notarized.
"Is a Handwritten Will Legal in Tennessee?
In Tennessee, three types of wills are legal:
- A standard will that was created with the help of an estate attorney
- A nuncupative will, completed while the person’s death is imminent
- A holographic will, also known as a handwritten will
Although the courts will recognize handwritten wills, they must comply with T.C.A. § 32-1-105:
No witness to a holographic will is necessary, but the signature and all its material provisions must be in the handwriting of the testator and the testator’s handwriting must be proved by two (2) witnesses.
What the statute means is that a handwritten will is only found valid if the deceased had signed the document and two witnesses can prove that the handwriting is the testator. The will must be entirely written out – if it is typed out, for instance, it will not be valid under Tennessee law."
Source: https://www.mhpslaw.com/practice-areas/estate-planning-attorney-nashville/handwritten-will-issues/#:~:text=What%20the%20statute%20means%20is,be%20valid%20under%20Tennessee%20law.
There is more info at the link regarding "Issues Surrounding Holographic (Handwritten) Wills"
in any case yes, sometimes it can be valid. but it can also raise many legal questions; lead to potential heirs contesting; and be judged invalid.
it's possible OP's TN lawyer saw the actual "will" and came to the conclusion that it's invalid for many reasons.
Also the state probate will tell about distributions based on their laws. In SC it is the wife and children who get equal shares
We do tend to forget that a will is NOT a gift for those who cared for a person.
And sadly, every family has their 'challenges' as far as that goes. My OB stole so much money from my folks they actually lost their home and had no savings to speak of--yet this same OB stood to inherit his 1/6th. He died before mom did and she did have the will changed to exclude his children. Otherwise, his 6th would have been divided amongst his 5 kids.
My BIL, DH's OB stands to inherit 1/3rd of his mom's estate. He has no relationship with her, he can't stand her and has had no relationship with her for many, many years. He's done nothing for her care, BUT MIL wants him to inherit equally. What I/we think is pointless. DH will execute her estate with complete transparency and OB will get his. And likely we will never see him again.
Reading your question and all these answers, it seems like the best idea is to find an available and responsive attorney so you don’t have to wade through this alone.
Cleaning out the personal property is heartbreaking and overwhelming enough… then you won’t have to worry about making legal mistakes that lead to IRS trouble or litigation with family.
The legal process should be fairly straightforward for an attorney and the hourly charges will be worth every penny. You can simply follow the directions and with a legal professional guiding you, if there were any mistakes made, you would just be following professional advice.
I’m sorry you are going through all this, but the end of this trouble is in sight.
In our state there are specific laws that direct the handling of an estate without a will. It is referred to dying intestate…. dying without a will. An estate attorney for your state should be your best choice. We have one who offered the first consultation free and we paid only if we chose to follow her recommendations. Any attorney can help, but an estate attorney should do it right the first time.
Use what you learn here only to make a list of questions to ask an attorney… not to totally base your decisions.
I am son who was a full-time caregiver for my mom. Each year, I would go over important legal documents with her: POA, Health Care Proxy, Will, Funeral Arrangements, Obituary, and Deed, to make sure she was OK with everything. I would then prepare a sheet that both of us signed and dated noting our review. I wanted it for my record in case anyone (including my siblings who were never involved in her care) every questioned my decisions.
When she died last year at age 93, I was prepared. Her funeral wishes were followed. When it came to closing the estate, it was a very simple process that involved my attorney's office filing a death certificate with the County Clerk to confirm ownership of the family home (mom had life use) transferred to me. The paralegal kept me informed of what she was doing by email and phone, and responded to all my questions. I paid an upfront retainer fee that was drawn down as the process moved forward.
Many of the horror stories that occur regarding control over property, bank accounts, estates, funeral arrangements, etc. might be avoided if wishes were discussed and reviewed on a regular basis. Death is certain for all of us. Having one's wishes known before makes it easier for those who survive. I wish you well.
But she did so that is water under the bridge. It doesn't help to point this out (as I also was wondering about it).
Talking about what she should have / could have done doesn't help her 'now.' It might (hopefully) help others reading this.
Yes. You were prepared. And, this doesn't help the writer of this missive at all. She can't go back ... try to be more compassionate to the situation this woman / daughter is in now - to support her.
Do what you can and then let it go. . . as difficult as this might be.
You do not want to ruin your health due to legalities and how things went in the past. It is easy to realize what we should have / could not done after the fact.
I understand this is not only emotionally difficult, it involves finances and what you feel is unfair (which it might be). Anger will not serve you moving forward. While it will / may be difficult to consider the situation this way 'be grateful for what you do have / will have' and appreciate yourself for what you did for your mom, regardless of how the Will / or lack thereof is divided up. I know this is a tall order / recommendation / advice-support. You want to maintain your well-being as best you can. Being mad, disappointed, upset, angry will not serve you. Although it is understandable.
Gena / Touch Matters
"If an Heir Has Died
Obviously, an heir who has died can't inherit. But if the heir was a close relative, such as a child of the deceased person, his or her offspring may be entitled to take some or all of what their parent would have received. Figuring out whether this is the case can be tricky, but it's essential that you do so before distributing assets." https://www.nolo.com/legal-encyclopedia/intestate-succession-tennessee.html
You really need to talk with an estate attorney. Depending on legal fees and the worth of the assets, the brother's heirs may or may not pursue litigation. Litigation is expensive and messy. Discussing your situation with a competent estate attorney now could save you thousands of dollars and lots of headaches.
I can understand the paralysis, the ... not wanting to deal with any of it. I've been sitting here for 2.5 months still insuring a car in a parking lot etc. Totes full of stuff I don't want to touch. Seven months tho. It's time to find the strength and start going through it all.
See if you have a friend of a friend who is a lawyer who can give some off-record advice or a starting point, or you're going to be paying consultation fees. Settling estates is a bit of work especially without a will.
I'm not sure if it is a default thing or not, but my moms will said those who died before her, their share was then split to the surviving sibling relatives (ie it didnt go down to their children). I don't know though if that is an assumed default in an estate or not. It might vary from state to state.
Find a friend to help give you strength and start going through all of those things in the house etc. Yes it is going to hurt and it is going to suck. That's life all over though. :(
Each state has an referral service and possibly lawyers who will do some helpful guidance for free.
Getting the correct laws applied to your Mom’s estate will be crucial to moving on with your life, regardless of the outcome. Also remember you might have tax forms to fill out depending upon how she titled her assets at time of death.
See if you have a friend who can support you through this process. There is a lot of emotion tied to the process and the distribution. Good luck on your journey.