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NFT: Any Estate Attorney's Here..

EricJ : 11/18/2020 5:38 pm
who can answer a simple question about a will?
I am happy to see if I can answer  
Mike in NY : 11/18/2020 5:53 pm : link
.
Not one  
JayBinQueens : 11/18/2020 6:12 pm : link
but happy to refer a close friend if Mike can't help
okay here is a scenario...  
EricJ : 11/18/2020 6:33 pm : link
Jim and Mary are living together but are not married

In Jim's will, he indicates that Mary can live in his vacation home for two years after he passes.

Jim passes in Jan of 2020 but Mary is not given a copy of the will for 6 months and had no idea that benefit was there for her.

Is Mary entitled to the two years from the point she receives a copy of the will (notice)? OR... is she only able to live in the vacation home for the 18 months that remain?
The plain language of the will states  
BillT : 11/18/2020 6:54 pm : link
that Mary can live in his vacation home for two years after he passes. Her knowledge of that provision wouldn’t seem relevant unless there is some fact not presented.
RE: The plain language of the will states  
EricJ : 11/18/2020 7:47 pm : link
In comment 15050563 BillT said:
Quote:
that Mary can live in his vacation home for two years after he passes. Her knowledge of that provision wouldn’t seem relevant unless there is some fact not presented.


okay...if Mary was never told the provision existed in the will until 6 months after his death, she would not have known she had the ability to live in the vacation home until she finally received a copy of the will and read it for the first time.
2 years from date of death  
Mike in NY : 11/18/2020 7:54 pm : link
Although different states may have their own tolling provisions
RE: 2 years from date of death  
EricJ : 11/18/2020 8:09 pm : link
In comment 15050643 Mike in NY said:
Quote:
Although different states may have their own tolling provisions


okay so if they never sent ANY notice about the benefit to Mary and sent no copy of the will... she in theory could legally miss out on the benefit?
RE: RE: The plain language of the will states  
section125 : 11/18/2020 8:11 pm : link
In comment 15050629 EricJ said:
Quote:
In comment 15050563 BillT said:


Quote:


that Mary can live in his vacation home for two years after he passes. Her knowledge of that provision wouldn’t seem relevant unless there is some fact not presented.



okay...if Mary was never told the provision existed in the will until 6 months after his death, she would not have known she had the ability to live in the vacation home until she finally received a copy of the will and read it for the first time.


Why would anyone want to live in someone else home without them there?
RE: RE: RE: The plain language of the will states  
EricJ : 11/18/2020 8:24 pm : link
In comment 15050659 section125 said:
Quote:

Why would anyone want to live in someone else home without them there?


That really does not help at all
since it's real estate  
ColHowPepper : 11/18/2020 9:19 pm : link
and it's in writing, principles of equity might apply: if it can be shown that she was not shown Jim's will because of bad faith or other self-serving objective, she might have an argument. Certainly not black and white and if it is destined to be litigated, probably won't make anyone happy at end of the day, poorer, yes
RE: RE: The plain language of the will states  
BillT : 11/18/2020 10:21 pm : link
In comment 15050629 EricJ said:
Quote:
In comment 15050563 BillT said:


Quote:


that Mary can live in his vacation home for two years after he passes. Her knowledge of that provision wouldn’t seem relevant unless there is some fact not presented.



okay...if Mary was never told the provision existed in the will until 6 months after his death, she would not have known she had the ability to live in the vacation home until she finally received a copy of the will and read it for the first time.

So, if she had not lived there because she did not know she could have and if the reason she did not know was based on the malfeasance of the trustee or estate attorney then that might be a litigable issue.
not an attorney  
pjcas18 : 11/18/2020 10:24 pm : link
of any type, but it seems like the executor should have an obligation to notify people named or designated in the will to receive property, etc or of the conditions or items they were provided.

just seems like common sense.


RE: not an attorney  
EricJ : 11/19/2020 6:51 am : link
In comment 15050917 pjcas18 said:
Quote:
of any type, but it seems like the executor should have an obligation to notify people named or designated in the will to receive property, etc or of the conditions or items they were provided.

just seems like common sense.



^^ That is exactly my point.
RE: RE: not an attorney  
johnnyb : 11/19/2020 7:04 am : link
In comment 15051093 EricJ said:
Quote:
In comment 15050917 pjcas18 said:


Quote:


of any type, but it seems like the executor should have an obligation to notify people named or designated in the will to receive property, etc or of the conditions or items they were provided.

just seems like common sense.





^^ That is exactly my point.


I am not an attorney, but 5he Executor has a fiduciary responsibility to the beneficiaries of the estate. By not notifying Mary of her benefit can leave the Executor open to a lawsuit.
RE: not an attorney  
Mike in NY : 11/19/2020 7:07 am : link
In comment 15050917 pjcas18 said:
Quote:
of any type, but it seems like the executor should have an obligation to notify people named or designated in the will to receive property, etc or of the conditions or items they were provided.

just seems like common sense.



There is no legal requirement in many states. However, states have used that as grounds to sustain lawsuits against executors and, if very extreme, decline to follow the Will and not allow the Executor to be appointed.
RE: not an attorney  
Section331 : 11/19/2020 9:35 am : link
In comment 15050917 pjcas18 said:
Quote:
of any type, but it seems like the executor should have an obligation to notify people named or designated in the will to receive property, etc or of the conditions or items they were provided.

just seems like common sense.



Or the deceased could have told Mary she could live in the house for 2 years after his passing. He signed the will, he offered the benefit, why wouldn't he let her know?

If I were one of the estate beneficiaries looking to either use or sell the property, that would be my argument.
Not a legal opinion,  
CT Charlie : 11/19/2020 11:55 am : link
but it seems odd that if they were living together when he died, she was unaware of provisions in the will involving her. Or at least didn't find out for 6 months.
This thread is an excellent example of the things that can  
Marty in Albany : 11/19/2020 12:09 pm : link
go wrong with a will, and why it is not a good idea to draft your own will.

There was a recent thread about the pros and cons of using Legal Zoom for estate planning. This is a good example of the cons.
RE: This thread is an excellent example of the things that can  
pjcas18 : 11/19/2020 12:15 pm : link
In comment 15051333 Marty in Albany said:
Quote:
go wrong with a will, and why it is not a good idea to draft your own will.

There was a recent thread about the pros and cons of using Legal Zoom for estate planning. This is a good example of the cons.


How do you know the guy did his own will or did it with Legal Zoom? I paid an attorney to do my will, but can see how something similar could still happen.

Did I miss that comment where EricJ said that?
RE: RE: This thread is an excellent example of the things that can  
EricJ : 11/19/2020 2:47 pm : link
In comment 15051339 pjcas18 said:
Quote:
In comment 15051333 Marty in Albany said:


Quote:


go wrong with a will, and why it is not a good idea to draft your own will.

There was a recent thread about the pros and cons of using Legal Zoom for estate planning. This is a good example of the cons.



How do you know the guy did his own will or did it with Legal Zoom? I paid an attorney to do my will, but can see how something similar could still happen.

Did I miss that comment where EricJ said that?


This individual definitely used a professional to draft the will. The issue is this person's affairs are being managed by others since his passing who are blood relatives. So there is a lot of nonsense going on and they likely do not want Mary to stay in the vacation home.
The two above posters are quite right. I should have added  
Marty in Albany : 11/19/2020 5:10 pm : link
that if an attorney had prepared the will and was at fault, at least there would be somebody to sue for malpractice. (Attorneys do have malpractice insurance) That would not be possible if the testator had used Legal Zoom.

The attorney would also be privy to the intentions of the testator and could go into court to clarify the meaning of any ambiguous parts of the will.
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