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Dear Quentin,
My father passed away in late 2020 from a short, courageous battle with cancer. My sibling and I were both extremely close to our father, and we both have always done our best to make him proud. He was proud, and loved us very much. We were raised with morals, and from an early age we were taught to listen to and respect our parents.
My father did have a will, which I’m thankful for. But it has brought extra stress for both me and my sibling. Although he had a will, the final version was not prepared by an attorney. The previous version written in 2017 was prepared by an attorney, and that version was edited by someone with zero legal training.
In his will, his second wife of two years (both of us are from his first marriage) was given lifetime rights to the home they shared. My father owned the home for many years, and he left the home in his will to both of us. The home was paid off by us shortly after he passed, as requested by his will.
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‘She inherited his life-insurance policy and his checking and savings accounts collectively worth $125,000.’
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We, his children, have never had any issue with his wife remaining in the house for her lifetime. But the will also stated that his children were to pay the HOA fees, homeowner’s insurance and taxes for the home and land for her lifetime as long as she lives in the home. This amounts to an annual expense of over $5,000, to which no funds were allocated in the will.
She inherited his life-insurance policy and his checking and savings accounts collectively worth $125,000. He had zero outstanding debt when he passed, which made his estate rather simple to handle. The will also stated that if the wife decided to move in the future, his children were to pay her $25,000 to buy out her lifetime rights.
She is in her 50s, so we could potentially be paying the expenses for her to live in the house for 20-plus years. She does work and can afford to pay these expenses. My sibling and I both have modest jobs, and although we have both worked hard to live financially comfortably, we by no means have an extra couple thousand dollars lying around to pay for someone else’s living expenses. She has no interest in owning the home, nor in paying any of the home’s yearly expenses.
Should my sibling and I just do what we have been asked in his will? Neither of us would ever want to go against my father’s wishes, but we aren’t certain he knew exactly what he was asking of us. He was aware of how hard we both worked to pay off our student loans and buy homes. On the other hand, we never asked for this financial burden.
Torn Stepchild
You can email The Moneyist with any financial and ethical questions related to coronavirus at qfottrell@marketwatch.com, and follow Quentin Fottrell on Twitter.
Dear Stepchild,
It sounds like an unusual series of additions to your father’s will that were likely made at your stepmother’s suggestion, particularly given her relatively young age and your father’s rapidly declining health.
I have good news, bad news and, perhaps, some more good news. A will can be challenged for many reasons, including improper legal changes, undue influence, diminished capacity, fraud and forgery.
The bad news: Not only can it often be costly to challenge a will — ranging from $10,000 to $50,000 — but there is a statute of limitations on doing so that varies depending on the state.
In Minnesota, for instance, it’s one year, after which the challenge is automatically dismissed by the court. In New Jersey, you only have four months to contest a will, or six months if you live outside the state.
Now for the good news. You would challenge the final version of this will in probate court, assuming the will has been filed with the probate court. On the outside chance that it has not been filed, you may be in luck.
Failing that, consult an attorney on the legality of making you and your sibling responsible for the upkeep and HOA fees, and whether this is in accordance with the laws of your state, and what happens if the house were to fall into disrepair.
According to the Berkshire Elder Law Center: “The life tenant remains responsible for real estate taxes, insurance, and ordinary maintenance costs related to the property and is still eligible for real estate tax abatements & exemptions.”
Assuming you can challenge the will and it can be done without incurring substantial legal fees, should you do it? If you believe the will was not valid and your father was under pressure to change it, I see no reason why not.
The law is there to protect people like your father and beneficiaries, and if a will was hastily amended, it does not bode well for the circumstances under which those changes were made. But it may already be too late.
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