By Marc S. Galella, Esq. of R. C. Shea & Associates
It never ceases to amaze me how people with complicated life situations do not have a Last Will and Testament to make things easier on their families when they pass away.
Case in point, mother and father own a house and reside in the house with their daughter. Daughter has long term medical and psychological issues and cannot live on her own. Parents have one other child, their son, who does not live with his parents. Mother and father both die without preparing Wills. According to daughter, it was the parents’ intention that when both parents passed away the daughter would have the right to live in the house for the rest of her life.
Of course, her brother, the other surviving heir, claims not to be aware of their parents’ intentions and expects the house to be sold so he can receive his share of the estate. Daughter is now upset over the fact that she will have to vacate the house and use her proceeds from the sale of the house to find another place to live.
So now brother and sister are at odds with each other. Sister believing, she should have the right to live in the house for the rest of her life and brother looking for his share of the parents’ estate.
All this could’ve been avoided had the parents prepared Wills that would have stated their intentions as to the house. When a person passes away without a Will, the estate must be distributed pursuant to the New Jersey laws of intestacy which are a series of laws that specify how assets are to be distributed if there is no Will. In this case, the brother and sister would each have inherited one-half of the estate upon the death of the second parent to pass away. Without a Will that could have shown what the parents real intentions were, legally brother has the right to demand that the house be sold so he can receive his one-half interest in the estate. Had the parents made Wills, they could have stated their intentions as to how the house was to be handled. They could have left the house to the daughter; they could have left the house equally to the two children with the daughter having the right to reside in the house; or they could have left the estate equally to the two children and the daughter would have to find another place to live after the house was sold.
The moral of this story is that everyone should have a Will. More importantly, you should have Will especially where you have a complicated situation such as the intention to leave the house to one child. Contact R.C. Shea & Associates for all your Estate Planning needs.
