I need legal advice regarding father in law's estate- PLEASE

Discussion in 'The Watercooler' started by hearts and roses, Jul 29, 2011.

  1. hearts and roses

    hearts and roses Mind Reader

    So, as you may recall, father in law passed away on July 11th, we were down there last week for the funeral, H stayed on till the other day, etc.

    So, we have certified copies of the will, death certificate and mortgage documents.

    Background: father in law helped us get into our home back in 1996 - he basically put the down payment in and secured the mortgage in his name and we have paid the mortgage all these years. We pay for everything in regards to the house. Despite my best arguments and pleas, H has never made a concerted effort to get the house into our name by way of taking a mortgage for the balance of the original mortgage. We have looked into it several times, but then H won't follow through. At one time, we were going to just put the mortgage into my name because H wouldn't qualify for a loan, but at the last minute, H's trust issues became a problem and the plan fell through. His father didn't hold onto the house as a means of controlling anyone - it's been H all along; he just couldn't get his s***t together. Then he started an upstairs addition and suddenly was ready to move forward with getting a mortgage. Well, because the construction was incomplete, the mortgage companies would not consider us because mortgage laws changed after the Wall St crud and no longer were mortgages given out for "incomplete construction of living space". So all he has left is to put up the sheetrock and we figured by Christmas we'd be able to get a mortgage and finally get this DONE. But then, father in law passed away and left this loose end.

    In father in law's will everything was left to his wife, even OUR home. Unfortunately, since our house was only in father in law's name, mother in law needs to submit papers to the probate court to have it changed into her name. She is a resident of FL, we live in, and the house is in, CT. So, we are filing the papers for her up here through probate court. Of course, we will have to send her the papers to sign and she will need to send them back, etc. It's going to be a period of time before all of this is settled. And I am not happy about the house being in mother in law's name - we have no affection for one another and, in fact, I wouldn't put it past her to find a way of keeping her name on there and adding H's but excluding mine. She's not fast or extremely clever, it may just be a suggestion, but I wouldn't put those thoughts past her, is all I am saying, and I try diligently to keep those kinds of ideas out of my head!

    Okay, so current:

    Yesterday I contacted the probate court clerk in town and she stated that we did not need a lawyer to submit the papers - just be sure we have everything necessary, download the forms from the state GOV site, etc. I did that, but then called a local lawyer for the heck of it just to be sure. The papalegal confirmed to me that we didn't need a lawyer, however, if anything became gummed up, the lawyer would be happy to assist at that point. I feel confident that I can do this, process the papers, etc., after all, I have been doing legal work for over 15 years and estate/representative stuff concerning my mom for over 3 years. H had to consult with his sister, which is reasonable, and she strongly urged him to at least have a consultation with the lawyer which is fine, it's their dad and mom and all that but it seems I must continuously remind H that this is MY home as well as his, not to mention the girls, and I NEED to be in the loop with anything concerning the house. He just gives me blank stares, it's so unnerving. I TOLD him that I will be attending ANY and ALL meetings with a lawyer that concerns the house - no ands, ifs, or buts, period. Again, the blank stare.

    Q#1: Has anyone ever gone through the probate court without an attorney? If so, did it all go well or did you end up needing an attorney after all?

    I ask this because we have already plunked out over $1000 relative to father in law's death (travel, hotel, etc) and H still has to contribute another $700 towards the funeral reception in FL (long story short: because the brother and sister don't think the mom should have to pay!!!)...and finally, we will likely plunk out another $1000 for the ashes ceremony and reception on LI (another $1000) in September, because H said he would. I mean, we're talking crazy amounts of money here ($2700), and the idea of paying someone another $500+ to do something I can do (effectively) just unhinges me. When I mentioned the problem I have with spending all this money, he just looked at me like I was evil - as if we should spend every last dime to 'honor' his father's death. We're way beyond 'honoring' his death, okay?

    Q#2: Since we are going through probate anyway to have the name of ownership on the house changed, is there anyway to have it changed directly to H and me with mother in law's approval - I mean, can she sign off on it and we just acquire a mortgage for the balance on the existing mortgage ($60,000)?

    The paralegal I spoke with seemed to allude to such a situation, so I figured I'd ask if anyone has every been in that situation. We have records that indicate we've been paying the mortgage since 1996, we pay the homeowners policy, make all the repairs, maintenance and upgrades, etc. The house is valued at roughly $285,000 and we would only take a mortgage out for $60,000, so I am imagining that his mom may have to quit claim on the equity of the home and property once we get a mortgage. Or, would be a situation wherein we assume the original mortgage through the normal applications? I am thinking of calling a mortgage broker today to get that question answered.

    Q#3: H is a little slow on the uptake at times, especially when he's trying to comprehend stuff like this. It's not that he's stupid, in fact, he's very intelligent, but just slow about stuff like this. It drives me NUTS because his mother is the same way. They just don't get every day little things like on line banking or calling an agency to find out information, they don't ask the right questions and then hang up annoyed with the other person for not giving them adequate information. Stuff like that - drives me crazy, how about asking the right questions to get the information you actually need? Duh. I tend to do a lot of research, make calls and ask a lot of questions - IOW. I am ON IT. I become so frustrated with him and his slowness and the blank look on his face (so reminiscent of GWB it frightens me at times, I cannot tell you!), that I sometimes rush in or complete the thought or sentence, etc. Other than crazy-gluing my mouth shut, how, HOW do I keep my mouth closed. Close my eyes and count to ten? Say the serenity prayer 8 million times over and over in my head? stick a wad of chewing gum in my mouth? WHAT??????

    Okay, so lastly, the LI reception. When we were in FL, the consensus was that we were going to contact one of is old golfing buddies on LI and ask if we could hold a small reception at his house one Saturday in September after dispersing the ashes. H didn't say much at the time but then let it be known only to me that he had no intention of following through with that plan, and, get this, WE are the ones who are supposed to plan it. The reason a friend's house was suggested is because the FL reception cost over $3000 at the country club and we (the siblings collectively) wanted to cut on costs for the smaller reception. Of course, the FL reception had 60+ people and the LI reception list is now up to 40 people. Now, for some reason, my H feels that because his dad was so beloved by his golf friends at the LI country club that they will be willing to give his dad a reception for a cheap price. I doubt that. H also said that the place on LI didn't have catering. Well...

    I went to the LI country club site and they've been in business for 100 years, catering the entire time. I spoke with the catering manager and asked if we'd be able to bring in our own food, etc., and he said that he had heard H's father's name said a lot these past two weeks - that even though he didn't know father in law, apparently, there were still members there who remember him. The catering manager said that he will work with us for a small gathering and in regards to food he feels they would be able to provide something nice and affordable, within our budget. We don't have a budget - well, H was thinking maybe $800 total. I guess we will see because we have a meeting with the catering manager on LI tomorrow at 12:30. Fingers crossed!!!

    Okay, so that's it for now - thanks in advance for any information you may have to offer!
  2. DammitJanet

    DammitJanet Well-Known Member Staff Member

    Well, we didnt have to go to probate with my dad's estate because everything was left to my step-mom. There was a bank account in my name and several insurance policies evidently in her name and then there was a small one that was found in my mother's name that eventually became mine. In actuality, your house is now your mother in law's...sigh, unless your father in law left it to you in his will.

    As far as I know, my dad didnt have a will. I cannot believe that but I have to believe it because that is what I have been told and no lawyer ever contacted me. My step-mom just gave me what she knew my dad wanted me/my kids should be given. Not a whole lot.

    I hope your father in law's will is more iron clad than my situation. However, if that house isnt actually dealt with in there it could be an issue. I so hope it doesnt become so huge family fight but when death occurs, money becomes a really big deal.

    Ohhhhh yeah....this could also be a problem with the house and estate taxes too this year. I dont know what his estate looks like but with that house and the value, I do think maybe a visit with an attorney or a CPA might be worth a visit because it may have tax implications. I think the estate tax thing has changed this year.
  3. KTMom91

    KTMom91 Well-Known Member

    My Nana had everything in a trust that went automatically to my mom and her brother, equally, and even then, they didn't speak to each other for more than fifteen years. My advice is to find a lawyer you trust, because honestly, it could get really ugly. Hugs.
  4. keista

    keista New Member

    I don't have personal experience, but will share what I do know.

    #1 I'm assuming from the way you have written, that the HOUSE was in father in law's name as well as the mortgage. These are two totally separate things. The mortgage (MTG) itself is the least of the worries/complications in this scenario. As long as the bank keeps getting paid you can take your own sweet time dealing with that without too many problems. My personal example is that my house AND MTG were in mine and husband's name. When he left I made him quit claim his half of the house to me. This put the house in my name only, BUT the MTG was still in BOTH our names. He has since filed bankruptcy. He is still on the MTG but as long as the bank gets it's money, they really don't care about any of it. So, if the HOUSE is indeed in father in law's name we need to continue, otherwise if the HOUSE is actually in your names, then it is a non issue.

    Now assuming the HOUSE is in father in law's name, and there is no will, yes, it all goes to mother in law. This is the purpose of probate. If she is willing and agreeable that the house truly belongs to you, probate is the time to present the information and transfer the property directly to you and husband instead of her. If mother in law is NOT agreeable and wants to claim the house, then probate is the time for you and husband to go before the judge and explain the arrangement, showing the proof that you have been paying the MTG, taxes, insurance, maintenance, improvements, etc. Either way it MUST get done through probate. This is the best avenue for the legal and tax implications. Any other large assets that are up for debate by anyone (creditors, family, business associates) have to be addressed at this time as well - that's the purpose of probate - for ppl to make their claims on the estate.

    If nobody makes any claims on the estate, the whole estate goes to mother in law. Now to make thing 'easy' she could be saying (or husband saying) that the property will be transferred after it goes to mother in law. DO NOT DO THAT!!!!!!!!!!!!!!!!! Although it can be done, it carries HUGE tax ramifications. A person cannot just GIVE a house to another person. It becomes a taxable gift. The current amount that any one person can just 'gift' away in any calendar year is capped. I think it's at 13,000 right now. that means anything above that amount that is gifted is subject to a tax. So to you and husband she'd be able to gift tax free only 26K of the house and she'd have to pay taxes on the balance of the market value. You and husband would also have a $0 cost basis for the house which would result in possible additional taxes if you were ever to sell the home. Transferring title in probate will avoid all these gift tax issues. Also, she can totally change her mind, and then you will have no legal standing whatsoever.

    If husband doesn't get it, you might have to have a consultation with an attorney if only to have the attorney tell your husband to listen to you and that you are doing the right thing for EVERYONE involved.
  5. hearts and roses

    hearts and roses Mind Reader

    Thank you keista. There was a will and there were no stipulations about our home. Everything automatically will go to mother in law if her name was on it (whatever property, accounts, etc.) but the items, such as our home, that were solely in father in law's name need to be processed through probate so they can be transferred to mother in law's name. There are a couple of accounts in FL that were solely in father in law's name that she will need to process through probate in FL.

    So you're saying that through probate court, we could have the title of the house put directly into our names but keep the mortgage the way it is for the time being. Then, we can go ahead and get a mortgage for whatever the balance is on the existing mortgage and just pay off mother in law with the end result being the house is in our name and we secured our own mortgage...and mother in law is out of it completely. Correct?

    Also, it is best for us to actually PURCHASE the house from mother in law rather than receive it as a gift because the tax burden will be greater, correct?

    I printed out your post so I could fully understand it and jot down some relative questions for when we meet with the attorney. I want to make sure I ask all the right questions and find out which scenario is best for US. I feel like we're so close to getting this matter behind us and I'm not going to allow H to mess it up. And if there is any monkey business concerning his mother or him, I'm feeling ready to walk. I'm just so sick of the entire thing, honestly. I've been after him for YEARS to get this straightened out and now this. Ugh. Thanks!!!
  6. DDD

    DDD Well-Known Member

    Keista is right on target based on my knowledge. This is one instance where moving quickly is not advisable and likely could cause serious problems. My husband and I are similiar in personalities to how you describe your marriage. Believe me I can "feel" your frustration. It will be difficult to accept this big problem as it is but counting and chewing gum may help a little bit.

    Even knowing that money is tight don't avoid an appointment with an appropriately specialized attorney. Call and find out how much an initial consultation appointment will cost. Write down dates, amounts, values and assessments and he or she should be able to explain your situation and the law. I really hope I am wrong but as a former Realtor I have some knowledge which leads me to believe this may be one of the biggest problems you have ever faced. I am sending very caring hugs your way. DDD
  7. keista

    keista New Member

    Correct, but not sure what you are paying mother in law off for???? Did you pay the mortgage directly to the bank or did father in law pay it and you paid him? When you get a new mortgage, the payoff of the old mortgage would go directly to the original bank not the person paying that bank. Works that way for ANY refinance.

    Yes and no. Thing is, you have/are already purchased the house. You should NOT have to do it again. That's why it's important to address it through probate. As long as you have proof of ALL the payments you made for every facet of the home and have a reasonable judge, this should not be a big issue even if mother in law says it's not so. Headache, yes, but again assuming a reasonable judge and you have proof, logic states the home is really yours despite what all the paperwork says. It will bypass mother in law entirely and have the effect of you inheriting the house from father in law. Also if I'm not mistaken, if that happens the bank may be more than happy to just transfer the remaining balance of the mortgage to you and husband avoiding a new mortgage and the associated closing costs (might still have to pay a transfer fee and county/state doctor stamps.

    You're welcome and yeah, there are SEVERAL ways this could have been changed years ago to make it easier and financially safer for EVERYONE including mother in law. So don't even let husband get on some kind of kick that you are against her in this.

    I totally get how husband could ignore dealing with this in the past. There was an amicable agreement and everyone was doing what they were supposed to, so why change the status quo. Actually there were several reason to do that, but not worth getting into it now. Unfortunately that is not the case right now. The two of you can loose your home due to legal technicalities. I'm not saying she would, but if mother in law goes loco and the house just goes to her, then she can sell it any time she wants and you'll have no legal standing whatsoever.

    Proceed quickly yet cautiously.
  8. Fran

    Fran Former desparate mom

    I don't have any answers for you and absolutely no legal experience. Is m i l in agreement that the house will be put in you and husband's name? Did the down payment get paid back? Are you able to secure a mortgage or will mortgage still be in father's name and ultimately in m i l's name. This has a lot of pitfalls from what I can see so hopefully the family will deal with this in a just way but m i l has no obligation to sign the house over to you and your husband. The will gives it to her.
    Good luck and funerals cost a lot. been there done that.
  9. seriously

    seriously New Member

    You need a lawyer in my opinion. Preferably two probably. One an estate/probate lawyer and one a real estate lawyer, although the probate lawyer may be qualified to handle this situation. And you may need a CPA or tax person depending on the complexity of the situation.

    it is potentially much messier than you would think given the "simple" arrangement you have had with father in law.

    As others have said, there are potentially HUGE tax consequences to the way you change/pass the title.

    Normally on death the debts of the estate are PAID by the estate. So there are a couple different ways I can see this might play out in your situation. You could buy the house from the estate and that money be used to pay off the existing loan. Or you could petition the lender to transfer to loan to you.

    If you aren't approved for a loan - what then?

    Or if the lender won't agree to transfer?

    It may be possible to retroactively say that father in law was gifting to you and husband the equity in the house to avoid some of this issue - depending on whether mother in law is agreeable, whether he gifted you any large amounts, etc. and depending on the laws of the state and the advice of your attorney.

    Has husband talked to mother in law at all about the situation to find out what she is thinking about this?

    As for the reception. I would never dream of paying that kind of money but then I simply don't have it.

    Why can't this reception be in your home? If the golf buddies loved him so much I would think they would be willing to come to your house.

    And, frankly, I think the estate should be paying these expenses if there is a big enough estate that it would not be an undue burden on mother in law and she wants these events done in this way.

    Just my 2cents.

    Sorry for your loss - husband may just be too overwhelmed with it all. Try to be patient. Maybe writing this down for him would help?
  10. hearts and roses

    hearts and roses Mind Reader

    I was at a bit of a disadvantage being in CT while H was in FL with his mom. Yes, she says she doesn't care that we continue to work towards getting a mortgage and getting the house in our name. However, she's basically clueless as to how all the legalities proceed and she along with H are relying on his sister to walk them through it all- and she lives in CA! I am making a list and will present my questions to the attorney next week. H made an appointment for next Thursday morning at 9 AM. I can't wait. Thanks for all the feedback, much appreciated as always.
  11. seriously

    seriously New Member

    In case no one thought to ask this - did anyone check to see if your in-laws had any kind of burial insurance or burial policy?
  12. hearts and roses

    hearts and roses Mind Reader

    They did have a prepaid funeral plan which paid for the cremation, state fees, the urn, and announcement. The reception was not included and I'm not sure the plan even covered everything. Honestly, his mom will be able to live out her years very comfortably, considering a majority of their income was eaten up by fils golf and drinking habits. She easily could afford to cover the cost of the reception(s). We are heading to LI this morning to meet with a guy from the Yacht Club father in law was a member of forever. H is hoping they give him a good deal for the LI reception. Then we head over to my brothers for a grad party. Good times, my back is out and I'm exhausted. Thanks again.
  13. DDD

    DDD Well-Known Member

    I'm so glad that you made the appointment with the attorney. Being in limbo and surrounded by "what if's" is the ultimate stressor. Once you know what the situation is and the choices are then you can adapt to the realities of your situation. Leaving mother in law out of the conversations is, in my humble opinion, the very best choice. She has lost her life partner rather suddenly, the mourning process is continuing with another memorial reception on the horizon and your husband is mourning too. Discussing possessions and the disposition of properties at this time (particularly with the history you and mother in law have) could easily lead to a negative knee jerk reaction that would not be pretty. With professional advice and the appropriate passing of time I hope it works out the way you want it to.

    This should serve as a reminder to all of us to review our wills and personal assets as well as to bring up the dreaded subject with our parents if they are still alive. It's inconvenient and can be terribly awkard but after the fact it can be too late. husband and I have wills that leave "everything" to the surviving spouse as do most couples. We have named the Executors for our estates. Surprisingly I have not put in writing who I want to receive my limited possessions. I know I should. I just haven't. I served as the Executrix for both my parents. We are a family of basically "good" people. It was shocking to me how a couple of my siblings reacted following the deaths. The two wealthier ones removed items from the house with-o my advance knowledge. My Mother, the surviving spouse, had "told" one that her diamond rings were going to one of the nephews and the rings were taken out of State. Awkwardly her written list showed that they were to go to a different grandchild. Yikes! Sometimes I don't think we have every jelled after the after death complexities. Make a will, make a list and let your children know what the plans are in advance. Hugs. DDD
  14. DammitJanet

    DammitJanet Well-Known Member Staff Member

    DDD....it is so darned hard! We try, we talk to our parents. its such a touchy subject. As most of you know, I attempted to ask my dad about a year and a half before he died about putting it in his will about his tools going to Tony. He acted like he would. Little did I know, there was no will. Then my step-mom acted oddly about us taking the tools. She seemed to think we were going to take every last screwdriver and hammer in the house! As if! We were talking about these big power tools he had bought that my step-mom would never be able to use or have any other use for....in fact no one else in the family would...only Tony or maybe Cory later on. Jamie was supposed to get the truck but I was so irritated that he got all of my pictures and every last thing having to do with dad's time in the Marines that I said no, we took the truck. Tony needed the truck badly because we only have one vehicle and Jamie has 2 and only 2 parking spaces at his townhouse. He couldnt park it at his house so what in heavens name was he gonna do with it. Plus Jamie has a really bad habit of letting other people drive his cars...even folks without licenses. We dont. We will take care of that truck like it is made out of gold. Probably bronze it like a baby's first pair of shoes when it dies...lol. Tony washes it every week...lmao. My car hasnt been washed in a year!
  15. keista

    keista New Member

    DDD great advice/reminder. Sisters and I have been on Dad for years. He's remarried and we expect most of everything to go to his wife. The problem is he's aging and ALL his assets are in his name only. I don't think she's even on one checking account. He had a mini stroke this summer, and he's finally woken up to the fact that he needs to get everything in order. NOT just a will, but also revokable living trust. If he ever becomes incapacitated, the way things are right now, no one will be able to use any of his assets to get him care, and no one will be able to maintain any of his assets.
  16. DDD

    DDD Well-Known Member

    I understand, Janet. Just based on my personal experience it seems as people age they either want to avoid preparations (maybe because they can't face the idea of aging and dying) or parents (in particular Mothers) either write or ask their kids "what do you want?" Most kids respond with "it doesn't matter" or "I'll think about it and we can talk later" because they don't want to face that their parent is even thinking about death. I'm an old people now but twenty years ago or so I can't tell you how many of my friends said "Omg, guess what Mom's focused on now?" Yeah. It's a weird situation. Probably the most common response is "let's not worry about that now there's plenty of time later". Not.

    Three times I have been in charge of affairs after death. The last one was my delightful elderly friend who lived next door. She and her Ca. daughter begged me to take on the job of hadnling her affairs. I tried over and over again to beg out because she had two other children who had never even met me. The adult children rarely visitd her and the one who lived in Florida visited at most twice a year for one day or two. Sigh! So I said I would do it only if everyone agreed and most importantly if every personal item was identified as "going to" a specific person. For over two years I visisted her at least twice a week. I kept up the pace when she was in a nursing home 25 miles away, I sold her house for her to save the real estate commission, I had all the valuables distributed when the house was sold to the designated family members. I truly cared for her as if she were my Mom. I brought her laundry home and returned it clean to her weekly as she didn't want her things mixed in with other peoples. Yet when she began to fail her granddaughter flew into town and stayed with her most of the last two weeks. She did not like me. She resented that my neighbor admired and "loved" me. Within a few days of her death her loving granddaughter called me and accused me of stealing and unduly influencing my friend. She even threatened to call the Sheriff's office and report me. She did call the Attorney and ask him what he could do. His reply "I have always found Mrs. DDD to be honest, caring and supportive and she is the designated appointee."

    That long story proved to me that death brings out the worst in people. It caused me embarrssment as the granddaughter shared her "take" with people in this community that were friends of her Gram. Money and belongings are a "hot" issue. Emotional response is even "hotter". My friend and I thought we had it all covered so there would be no issues...there still were. Sometimes I think the only way to avoid pain is to sell everything, pay the expenses and then divide the results equally. DDD

    PS: I know it is even more difficult when there is a second spouse involved. If we had alot of valuables I am sure that even after all these years at least one of my steps would feel slighted. There may be an advantage to having little.
  17. DammitJanet

    DammitJanet Well-Known Member Staff Member

    I know that when my mom got sick and later died, I felt great relief that I was an only child.
  18. AnnieO

    AnnieO Shooting from the Hip

    Speaking as one whose parents have it "together"... I'm glad. I've had that talk with my Mom, a couple years ago, shortly after Grandma passed. Mom is an only child, as am I - and so it fell to her to take care of everything.

    Thank God she had good friends to help.

    So every so often, Mom will say something like, "We're thinking about getting rid of the bedroom suite, did you want it?" And I'll say yes, or no. Usually no - there are a few things but that's not one of them. I have Grandma & Grandpa's. Last week she was making noises about a new coffee table - I DO want that, Grandpa made it himself - so she knows.

    I'm a signer on their safe deposit box, but that's it - I can get in if I need to.


    As someone whose kids' bio mom JUST passed away at age 35, it can happen at any time, to anyone. No will. Her mother is screaming at husband that he better not spend her life insurance, it belongs to the kids. That's nice, I seriously doubt they will see any of it - it likely went to her husband.

    I'm calling a guy my Dad recommended and Quentin and I are going to go have wills done. Just in case. Probate hoovers.
  19. hearts and roses

    hearts and roses Mind Reader

    Yes, DDD, this is a great opportunity to point stuff like this out. I have a living will, advance medical directives in place and H has life insurance that goes to me or the girls as contingents. We do not have a will, as we don't own anything except tools and cars. But, as things unfold, you can bet that will be our next step. I even had the girls do a living will and advance directives-anyone over 18 should have those as medical decisions are out of a parents hands once their child is a legal adult. Also, I think H's parents believed they had everything in order....aaahhhh, no. I still can't believe this house was not bequeathed to us in father in law's will, it just doesn't make any sense at all to me, especially now that we know he likely knew he was dying. When he was paying off his house and car and getting all his financials together to send to his daughter, why didn't he change that ONE line item in the will? Or, at the very least, add H as co-owner on the title? Stupid, stupid, stupid. I am having a difficult time with these questions, in case you can't tell? Hahaha. When my mom goes, there will be nothing to fight over, no need for probate-one of the few perks of dying in a nursing home I guess. Her funeral is prepaid, so we maybe will have to spring for a church service, but that's it. That, I can deal with!
  20. DDD

    DDD Well-Known Member

    Do you still have the appointment for the consultation this week? I'm hoping that "knowing" will bring some sense of peace instead of "wondering". Hugs. DDD