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03/30/09: The Inheritance Boat

HOUSING COUNSEL

By Benny L. Kass

Q: My mother passed away a few years ago. Since that time, my father remarried and has begun to sell properties that he and my mother accumulated over the years. My mother wanted her four children to have equal shares of one particular property. Although she did not put this in writing, she told me and a few other family members her wishes on numerous occasions. My father sold this property, but did not tell any of us about it. I only found out recently. When I questioned him, he was uncomfortable, but said that it was his business what he did with the property. He later told me that he and my mother's will was based on right of survivorship and that his new wife only has a life estate in the home that they are living in now. However, even after repeated requests, my father has never let me see or review his will. (My father is 77 years old and I am the oldest child at 50.) I am concerned because my father seems to be spending large sums of money on trips with his new wife, additional construction on his home (at his new wife's request) and expensive gifts to her children, etc. I believe that my father should have respected my mother's wishes and not sold the property. Can I file a lawsuit (with affidavits from those who heard my mother's wishes) to recover the monetary value of the property for myself and my other siblings? Incidentally, I have not spoken much to my siblings about this matter because I believe that they will just go back to our father with this information so as not to rock their "inheritance boat".

A: I understand and appreciate your angst, but unless you can prove that your father was mentally incompetent at the time he sold the property, you do not have a case.

Just because you are his child, does not guarantee that you have the right to inherit from your father. It is his property and he has the absolute right to do with it as he sees fit.

You want to see his Last Will and Testament. Why? The function of a Will - which everyone should have - is to memorialize the wishes and desires of the person writing it. To be blunt, it is not your business.

People change their Wills all the time, as circumstances change. Right or wrong, your father may want to assist and support his new wife, which is his prerogative.

Your father told you that the Will was based on the right of survivorship. That's not exactly correct. I assume that your parents owned their property as tenants by the entirety. This is legal title reserved for married couples. In effect, both parties own the entire property. On the death of one spouse, the surviving spouse becomes the sole owner and probate is not necessary.

Let's take this example: husband and wife own a house which is entitled as tenants by the entirety. The wife dies, and her Last Will specifically states that her interest is to go to her four children. Unfortunately, since she cannot unilaterally divide the property, her husband is the property owner and her Will has no legal effect on the disposition of that property.

Compare this to when title is held as tenants in common. Here, each owner has a divisible interest. If someone wants to buy half a property, one of the tenants has the right to sell. And there is nothing the other owner can do about this.

Upon the death of one tenant, his/her interest in the property must go to probate. And in this case, the property will be distributed in accordance with the decedent's Will.

So, even if your mother had a Will, it would have no effect on properties that she owned with your father as tenants by the entireties, and would not be legally binding on your father.

You say you want to file suit. But even if you are able to prove that your father was not mentally competent, I doubt that a Judge would set aside a sale to a third party. In law, there is the concept of a bona fide purchaser (we lawyers call this a BFP). If the buyer was not related to your father, and had absolutely no knowledge of your mother's intentions, that sale would survive. And since you did not own the property - or even has a real interest in it - you might not even have legal standing to file that lawsuit.

Of course, if it is determined that your father was impaired mentally, the Court could appoint a guardian and a conservator to monitor his activities and handle his future financial affairs. But that still may not guarantee that his property and his money will go to you and your siblings.

You referenced the "inheritance boat". I have never heard that concept before. But the captain of that boat is your father, and "the captain's word is law".

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