Will

I know this is an off the wall question, but I was talking with a 75 year old friend today and he was telling me that him and his wife of 32 years had previuosly had wills drawn up leaving the suriving spouse there personel property etc. Apparently about 5 years ago, she got upset with him over something and had another will drawn up and states in it that she is married and his name, however it is her wish to not leave her husband anything. He was not aware of this until she was buried last Thursday and her son presented him with the later copy of will she had drawn up and left everthing to the son, I also think she left her other three children out.
I was always told that you had to leave your spouse 1/2???
I advised him to seek legal counsel, but in my mind, was wondering what some of your thoughts or knowledge was??

Yes, you have to talk to a Kansas lawyer. In many states, the surviving spouse gets everything, step children and whatever have to be all spelled out ahead of time- usually wills are for when the last one dies, and in many places, if the newer will wasn't 'recorded' in a county courthouse etc, it is worthless. Talk to that lawyer- or county clerk- tomorrow- just in case-good luck

Your friend needs to get to a lawyer. It sounds like his late wife did.

Laws will vary by state. When someone dies intestate (without a will), the court appoints and administrator/executor. In such cases, there is usually established law that determines who gets what, with surviving spouses being at the top of the list. In the absence of a spouse, it will often be divided among surviving children or grandchildren under a fixed set of rules.

Those people who are ordinarily in line for something in a case like that are often called heirs-at-law.

If the person dies testate (WITH a will) they can leave as much or as little to anyone they please. Again, it will vary by state, but if a person chooses to disinherit someone, as this woman did, and that person would have qualified as an heir-at-law had she died intestate, some states require (it sounds like Kansas might) that the will specifically say that that person is to get nothing or a token $1 so that it is known that the decedent specifically meant to disinherit, and didn't just forget to include them. This allows a probate judge to alter the terms of a will in a case, say, where someone names their children in their will, but then has another child after the will was drawn.

It isn't always done out of meanness or spite. I've seen cases where one child, for instance, got his inheritance while his parents were still alive. They gave him $100k to establish a business. In their wills, they each gave their entire estate to the surviving spouse. If the spouse did not survive them, the rest of the surving children each got their own $100k, with the rest going to charity. Another instance of that type, is a childless couple I worked with who were both quite wealthy individually. I'm talking eight- or nine-figure kind of wealth for each of them -- the kind of money where there would be no financial hardship on the survivor, and both their wills specifically exclude the spuse and are leaving their entire estates to charity.

How your friend makes out may also depend on how their homestead was deeded. If both their names were on it, it might depend on whether they were named as joint tenants or tenants-in-common (there are other variations in some places). In one case, the homestead would belong entirely to your friend. In the other, the most the wife could transfer in her will is her half-interest to the son. Given the circumstances, I suspect that would be an awkward, uncomfortable arrangement, but it wouldn't put your friend out in the cold right away.

Again, he needs to see a lawyer.

Sounds like they married later in life. Did they had a prenuptial agreement of any sort?

Was it an original will or a codicil on the first? He does need to talk to an attorney, but if the will was legal and has been executed, there might not be much he can do.

Deffently has to get a good estate lawyer.

There is a difference between married assets and personal assets. If a married asset (house, joint bank accounts etc. the wishes of the will may not come into play as she did not have full ownership.
However personal assets i.e. individual bank accounts may come into play.

We all hate lawyers, but when we need them, we need them and thay can be our best allies.

Deffently has to get a good estate lawyer.

There is a difference between married assets and personal assets. If a married asset (house, joint bank accounts etc. the wishes of the will may not come into play as she did not have full ownership.
However personal assets i.e. individual bank accounts may come into play.

We all hate lawyers, but when we need them, we need them and thay can be our best allies.

Next time the Son comes over shoot him and then say he was trespassing or you thought he was going to harm you as he had what looked like a gun. Or your site just isn't what it used to be and you didn't know who it was and thought he stealing stuff or going to do you harm. Worked real good when you are up in age.
And it will settle the will problem. giggle
Walt

PS my advice should never be taken as gospel.

In Kansas, the surviving spouse can't be cut out and has be left a percentage up to half (a sliding scale based on the number of years married ). Plus he can get any joint interest with rights of survivorship property. His lawyer can present the wills to the court to see about invalidating the second one or provisions of it that are contrary to statute. It would help if their original wills were contractural. It would make a difference if there was any undue influence by the son. Just have a will contest hearing with all the witnesses examined. If the other children were left out without being named in the will, then there are further grounds for the will to be thrown out. You don't have to give to all of your children but you have to name them and say they receive nothing.

Recent experience with a will from younger brother who died a few months back- will specified Grandfathers JD B goes to cousin, brothers and sisters specificly get nothing, couple nieces and nephew specified as heirs to homestead after paying bills, niece is executor, rest of nieces and nephews -sisters kids- get nothing. Niece has found out the hassles of bill paying and cleanup of estate of person with drinking problem and poor money management. The experience is good for the younguns, they're going to have to handle parents estate eventually, probably mine also. RN

I just took a short spin through Kansas Article 59. Interesting. The wife wasn't required to leave half her estate to her husband, but her husband has the right of election to claim it if they were married 15 years or longer.

The homestead would seem to be his his, too. The only way she could cut him out of that would be to make another provision in her will in lieu of the homestead. There's an interesting side to the homestead exemption, as well. First off, the definition is a little hazy. It seems to exempt everything from a quarter-section down to 1 acre from any claims (including debt) against the estate with the exceptions of taxes, liens and mortgages directly related to the property. It was a REAL quick read opf just three of four heading/articles in the Chapter, so there may well be other provisions to cover them, but that leaves a few gray areas, like whether a half-acre in-town lot qualifies for the exemption.

Like most of us seem to be saying, this fellow needs to get himself a Kansas lawyer well versed in Chapter 59 and anything else that may be relevant.

Scotty, the homestead exemption applies to homes on town lots as well, even a camper if you are living in it as a home. I'm a Kansas attorney and Judge pro tem. I've offered about all I would say on the subject. I can't speculate based upon third party information and without reviewing the documents, talking to all the witnesses, and then researching for any cases that may apply. The courts do some odd things sometimes which always requires research. There is no black letter law, it is all gray and depends upon the facts of the case. And there are also two sides to any story and just hearing one side doesn't make it so. In Kansas we are courts of law and equity. Equity means a Judge can sometimes do what he wants no matter what the law says and they usually do. Then you have to spend a bunch to appeal. Anyway I'll let John T respond to these issues that come up on this forum and I definitely can't help someone in another state. This forum is just for my hobbies. And besides, those with legal questions usually want a black letter law answer and there isn't such a thing; it all depends upon what the Judge wants to do after hearing all the facts. That's all I can tell my clients. If I could predict what Judges are going to do, I'd be mucho rich.

I don't blame ya for a second for holding back, bc.

I had a friend in NYC when I worked there who had his MBA, and worked in structuring corporate deals. Harvey got so sick of being cut off at the knees by the lawyers in on the deals that he went to law school and got back into the same fray and did very well.

My work had been in the area of charitable trusts and annuities in a couple of very large private research universities. Armed with the stories of my friend Harvey's experience, I never felt the need to go to law school. My approach was to be well-versed in the laws that applied to my area, but to keep a good lawyer and a sharp CPA at my side for any ideas that go outside the boilerplate. Doing my part to stay current and ethical, we worked well together as a team. Had a few good ideas of my own in ticklish cases that flew, but it didn't bother me if a brainstorm landed in the mud.

The real challenge in that business was the ethics. Nothing would aggravate me more than trying to get donors to seek their own counsel. I could explain until I was blue in the face that I will do my best to explain to them honestly how the tax and other laws worked, but that a) I was not a lawyer and b) even if I was, my job was to obtain gifts for the university, and they needed to seek their own counsel, even if only to make sure issues unknown to me were taken into consideration. They might have adored me personally, but I couldn't persuade them that they could believe me but should not rely on me for advice. Too many of them took the view that if the gift was to benefit the university, then the university should provide the lawyer to them. To get them to understand that any lawyer I pay is presumed to be working for me . . . Aaarrgggghhhhhh!

As ticklish as all that could get, I kept and still have a file of the gifts I turned down, mostly cases where the proposed gift did not make sense for the donor. A simple example was one donor's retirement fund, which consisted of an annuity purchased by his employer. He wanted to flip it into a charitable gift annuity. A little inquiry showed that he had little in the way of liquid assets, and it was an inadvisable deal from the get-go. Add to that that he had a son with special needs . . . It was a big enough proposal that I had to fly out to San Antonio to thank him for his good intentions, but to let him know that we and the students who would benefit from his generosity would be just as grateful if he were to direct his annual gifts to augment an existing scholarship directed to the same purpose as the one he proposed to ultimately endow. He seemed a little amazed that I turned down his gift annuity proposal. A couple of weeks later, my reward came when he called and then conferenced in his attorney, who thanked me for holding to honest principles.

It might not seem to some folks that there is any difference between information and advice. In your profession there is a very definite distinction, directed by a defined code of ethics. In my own world, life would be a lot easier if my colleagues would accept the challenge to hold to equally stringent standards.

Once everyone contests the will, which I think is paid out of the kitty, there may not be anything left so may be a case for negotiating. after 27 years things can still go sour.