Q. My father just died and he’s married to his second wife. What property should I expect to get and what questions do I need to ask? I’m not on good terms with his wife.
A. We’re sorry to hear about your father.
When someone dies, they generally have two types of property at death: probate assets and non-probate assets.
Probate assets are assets that a person owns alone with no named beneficiary, said Catherine Romania, an estate planning attorney with Witman Stadtmauer in Florham Park.
She said probate assets will pass in accordance with the terms of a person’s will. If there is no will, these assets pass according to the laws of intestacy.
Non-probate assets include assets that a person owns jointly with another person, such as jointly owned real estate or joint bank accounts, as well as assets which designate a beneficiary, such as life insurance and retirement assets.
“These assets will pass to the joint survivor or named beneficiary by operation of law and are not controlled by a will or the laws of intestacy — unless the named beneficiary is the estate,” Romania said.
If your father died with probate assets, his estate must be administered through the Surrogate’s office in the county of his residence at the time of his death.
If he had a will, the will is presented for probate and the person named in the will to be the executor can qualify and obtain Letters Testamentary, which authorizes him or her to act on behalf of the estate, Romania said.
If there is no will, an administrator is appointed, with the spouse then children having the first right to such appointment, Romania said.
“In either case, all persons named in the will, if any, and all heirs at law — which include children — must be given notice within 60 days of probate and, if requested, receive a copy of the will,” Romania said. “Once a will is probated it is a public record, therefore, it can be requested directly from the Surrogate for a fee by anyone, including someone who may not be an heir at law.”
Assuming your father was competent and not under undue influence or coercion, he was free to make a will leaving his estate to whoever and however he so chose. Specifically, he was free to disinherit his children, Romania said.
If you believe that your father would never do that absent coercion or undue influence, she said you need to seek legal advice.
“Although it is possible to leave nothing to a spouse, a spouse is entitled to claim an elective share, which oversimplified is one third of a decedent’s augmented estate but only if she does not already have assets which equate to an equal sum,” Romania said. “Moreover, if your father and his wife had a premarital agreement in which she waived a right to his estate or limited or otherwise provided her rights to such estate, the premarital agreement will control.”
If your father died without leaving a will and if there was no premarital agreement, then with respect to any assets that pass in intestacy, the surviving spouse will receive the first 25 percent but not less than $50,000 nor more than $200,000, plus one half of the balance. The rest will pass to you and your siblings (and the children of deceased siblings), if any, Romania said.
For purposes of New Jersey estate tax savings, it is not unusual that upon the death of the first spouse, a trust is established for the surviving spouse which ends upon the death of the surviving spouse and distributes the balance then on hand to the first spouse’s descendants. she said. This is potentially another source of inheritance.
As to the next step, Romania said you can either wait to see if you are notified as to the probate of a will or administration of your father’s estate, or respectfully inquire of your father’s wife as to your father’s estate plans and whether you were included, particularly if there is an item of sentimental value you wish to preserve.
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