Dear Quentin,
My mother’s will states that her home is to be sold and the money divided — with half going to her two children and the other half to her late husband’s nieces. Mom now feels the nieces don’t deserve the money because they never helped or even visited her husband, their uncle.
But she has yet to change her will to reflect those feelings. After a stroke, she moved in with me and sold her house, with the money from the sale going into her savings to pay for her care. My brother and I are on both her bank accounts.
Upon her death, can the nieces demand half of the proceeds from the house sale? What if she’s used the money for her own care? Would we be responsible for covering that amount? Your answer will help me convince mom that it’s time to get the will to reflect her wishes.
Daughter
“Generally, legitimate ‘interested parties’ have the right to challenge a will. They could be relatives and, yes, people who are mentioned in the will.”
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Dear Daughter,
Your mother effectively made her decision when she sold the house and used the proceeds for her care. Her late husband’s nieces are not direct heirs and, if she died without leaving a will, her entire estate would go to her next of kin — her two children, you and your sibling.
However, legitimate “interested parties” have the right to challenge a will. They could be relatives and, yes, people who are mentioned in the will. In an ideal world, executors should keep beneficiaries informed of changes to the will in question. In this case, of course, your mother is very much alive.
Neil V. Carbone, a partner at Farrell Fritz, P.C., quotes a simple adage to sum up your predicament: “As the saying goes, ‘You can’t give what you don’t have,’” he says. Your mother said she would leave her home to four people, but she sold that home during her lifetime.
“The question here is whether the legal doctrine of ‘ademption’ applies,” he says. “In general, when a decedent includes a specific bequest of property under his or her will but no longer owns that property at the time of death, the bequest ‘adeems’ or lapses.”
“In effect, the decedent revoked the gift by disposing of the property during his or her lifetime. Here, because mom sold the house herself, according to the facts presented, the direction in her will to sell it and divide the sale proceeds is rendered ineffective and the bequest adeems.”
But there are exceptions to the doctrine of ademption in New York, he says. “One exception applies when property is sold by the guardian or conservator of an incapacitated person. In that case, the beneficiary would be entitled to receive the traceable proceeds of sale.”
As more people use a durable power of attorney to avoid the expenses related to guardianship, Carbone adds, more cases of wills being challenged in court have arisen seeking to extend this exemption to agents acting under such a power of attorney.
In other words, her husband’s nieces could claim that your mother was not competent at the time of the house sale and that they should therefore receive what they believe is their fair share of the proceeds. That could be a time-consuming and expensive process.
It’s smart to update a will as circumstances and feelings change. While your mother can’t leave what she no longer owns, there could be a loose end or two that might motivate these nieces to take action. Where there’s a will, there’s a relative. You mother should change the will, and keep things simple.
More from Quentin Fottrell:
My mother’s late husband came with baggage — ‘his deadbeat son.’ Is she on the hook for his debts? Can she evict him from her home?
On the day my stepfather died of brain cancer, he changed his trust and left everything to my sister. Do I have any recourse?
My husband and I are in our 70s. We married 3 years ago. He’s leaving his $ 1.8 million home to a 10-year-old relative. Is that normal?
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