[ncdeedee]

Is it legal in North Carolina to make a will leaving real property to someone other than your spouse with out the knowledge and consent of said spouse?

[ncdeedee]

If land is owned by someone and they marry, does it not then become part of the marital assests in the state of North Carolina?
ncdeedee

[ScottGem]

In most states you can't completely disinherit a spouse. Also your spouse does not have to know the contents of your will. So if you want to leave certain property to someone else, you can, just leave your will with your attorney or a trusted individual.

[JudyKayTee]

If land is owned by someone and they marry, does it not then become part of the marital assests in the state of North Carolina?
ncdeedee

No, it does not, not in North Carolina. The community property states are: Arizona,
California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, Wisconsin.

NYS is not a community property state - I am in NYS. I own my home and then I get married. I can either keep the house separate, in my own name, or I can title it over in both of our names or I suppose I can give it to my husband, in his name alone.

I HAVE seen divorces where 50% of the increased value of the home during the marriage does go to the untitled partner.

[Fr_Chuck]

As Judy noted, I am sorry no it does not, This is why we see issues where people want to be added to a deed and other issues. But if you are going though a divorce you really need an attorney for your own protection

[Fr_Chuck]

Yes, they can, normally you can not completely leave a spouse out of a will, So the other party will have to be named and included in the will.
Also there is no requirement to tell the other parities of the terms of the will,

Now with that, probate court can have a lot of little rules so it is always best to have an attorney esp if you are going to contest the contents of a will.

[ncdeedee]

OK... thanks for the responses... next question... is it possible to break a will after 12 years if it was never filed at the court house by the lawyer after the reading? And also, would the lawyer still have the original will or would one of the deceased person's family members have it?
ncdeedee

[ScottGem]

First, please don't start a new thread for a follow-up question. Use the Answer or Quick Reply options. I've merged the two threads.

Second, I would assume the SOL has expired on the time needed to challenge the will.

[ncdeedee]

My brothers wife passed away 12 years ago. In a will that was written up by her sister, 2 weeks before she dided of terminal brain cancer, the land their double wide sits on was left to her son not my brother. The house was not mentioned at all in the will, neither was my brother for that matter. Her sister, as exectutor (self-appointed mind you as my sister-in-law was on high does of morphine at this time) later "signed" the house over to my brother. We have a notorized paper to this effect. I also have the original title to the double wide wihich is paid off... it is my brothers and his deceased wife's name. Now the son has decieded that he is entiled to the house also. I have recently found ou the lawyer never filed the will. Can my brother fight to have it broken after 12 years if it was not filed? FYI... am trying to find a lawyer to help me with this as my brother is presently not able to do it himself.
ncdeedee:(

[ncdeedee]

OK... never used this site before.. thanks. Even if the will was never filed at the court house?

[JudyKayTee]

OK.....thanks for the responses.....next question.....is it possible to break a will after 12 years if it was never filed at the court house by the lawyer after the reading? And also, would the lawyer still have the original will or would one of the deceased person's family members have it?
ncdeedee

I don't know how a Court would go back 12 years and reverse everything that has happened in the meantime - if there was fraud involved and you could prove it, yes, perhaps you could criminally charge someone.

The original Will should have been filed in Probate Court/Surrogate's Court. Do you have any idea how the Attorney got around that requirement and how he was able to transfer any of the assets without a probate proceeding?

As far as writing a spouse out of a Will - in any State where the wife is ENTITLED to collect a percentage it works like this: Husband (for example) writes Will leaving 100% to his children. He cannot disinherit his wife so she would get the percentage due her in that particular State (say, 33%) and then what is left is distributed by Will.

I have no idea why an Attorney would write a Will disinheriting a spouse but I have see3n them in NYS. Maybe it's the ultimate "got you!"

What is the specific problem here?

[ScottGem]

Again, please keep your posts together. {all threads merged-<>}

In my opinion that will was invalid because a spouse can't be totally disinherited. Her sister had no right to be executor of the will unless the will specified her as executor. So her assignment of the deed was illegal. However its also possible that SOLs have expired to challenge this.

So, essentially you have a big mess here. I would strongly urge you to consult with a real estate and an estate attorney to unravel this mess.

[JudyKayTee]

I don't know how a Court would go back 12 years and reverse everything that has happened in the meantime - if there was fraud involved and you could prove it, yes, perhaps you could criminally charge someone.

The original Will should have been filed in Probate Court/Surrogate's Court. Do you have any idea how the Attorney got around that requirement and how he was able to transfer any of the assets without a probate proceeding?

As far as writing a spouse out of a Will - in any State where the wife is ENTITLED to collect a percentage it works like this: Husband (for example) writes Will leaving 100% to his children. He cannot disinherit his wife so she would get the percentage due her in that particular State (say, 33%) and then what is left is distributed by Will.

I have no idea why an Attorney would write a Will disinheriting a spouse but I have see3n them in NYS. Maybe it's the ultimate "got you!"

What is the specific problem here?

My opinion was based on the info in the second, incomplete post - had no idea there was a first post which explained the situation in detail.

Again - no Court is going to go back 12 years and sort out and reverse everything that has transpired.

[ncdeedee]

The specific problem is that my deceased sister-in-law's son is trying to take possession of my brother home. My brother was to distraught to fight the will at the time of his wife's death and has since developed a sever drinking problem, made some bad choices and is currently in jail and cannot defend his home... so that leaves me to try and I do not know which way to go. The son says that the house has to be moved in 30 days... but there are no papers to this effect as of yet. I also understand that he cannot be served with eviction papers while he is jail. I have never has to deal with this kind of thing before and just need advice. And yes I do be believe fraud was involved as I know for a fact that my sister-in-law did not write that "will" as her "signature" on it is barely readable and I suspect the person that notorized may have not been present at when it was signed but signed it for my sister-in-law's sister after the fact. Now this I know is illegal. The will was wriiten on May 3, 1996 and my sister-in-law was in the hospital in the last stages of brain cancer... being given high doses of morphine for pain... she was seeing things and people that where not in the room. She died on May 19, 1996. I doubt she even knew what she was "signing". After 3 weeks in jail... my brother is totally off alcohol for the first time in 12 years and is seeing things clearly... I just hope it isn't to late to save his property and his home.

[JudyKayTee]

The specific problem is that my deceased sister-in-law's son is trying to take possession of my brother home. My brother was to distraught to fight the will at the time of his wife's death and has since developed a sever drinking problem, made some bad choices and is currently in jail and cannot defend his home......so that leaves me to try and I do not know which way to go. The son says that the house has to be moved in 30 days...but there are no papers to this effect as of yet. I also understand that he cannot be served with eviction papers while he is jail. I have never has to deal with this kind of thing before and just need advice. And yes I do be believe fraud was involved as I know for a fact that my sister-in-law did not write that "will" as her "signature" on it is barely readable and I suspect the person that notorized may have not been present at when it was signed but signed it for my sister-in-law's sister after the fact. Now this I know is illegal. The will was wriiten on May 3, 1996 and my sister-in-law was in the hospital in the last stages of brain cancer....being given high doses of morphine for pain....she was seeing things and people that where not in the room. She died on May 19, 1996. I doubt she even knew what she was "signing". After 3 weeks in jail...my brother is totally off alcohol for the first time in 12 years and is seeing things clearly.....I just hope it isn't to late to save his property and his home.

It's not what you suspect, it's what you can prove... through witnesses. Twelve years is a long time for people to remember. Your sister-in-law did not have to write the Will, she only had to sign it. If you can prove the notary signed outside the presence of your sister, yes, the Will is invalid. If she was seeing things, on morphine, that doesn't mean at the moment she signed she was not of sound mind - these situations are difficult and complex, particularly after all this time.

As I have said - your sister-in-law legally could not simply disinherit your brother - but did your brother somehow "sign off" or sign a release of some sort and allow the son to take everything?

In some States legal papers can be served to a jailed person; in other States they cannot or it depends on the type of action.

Who is the legal owner of your brother's home? I'm a little confused about that part. And what is the son attempting to accomplish - move the home? Evict him from the home?

[ScottGem]

Judy is correct about proof. The notary is not going to admit she wasn't in the room, since that would probably lose her, her notary status. A notary has to witness the signature and verify the identity of the signor to put their stamp on the document.

As noted a spouse cannot be completely disinherited, but if your brother recevied some property or assets in the will, the property and home could have been left to someone else.

You also mentioned, previously, that the sis-in-law deeded the property to your brother as executor. But unless the will or a probate court appointed her as executor, she had no right to do so.

Again, you need an attorney to unravel this mess.

[ncdeedee]

According to the will, the land is the sons... according to the notorized paper, the house belongs to my brother. The son wants the house to live in it, so I guess eviciton is what he is trying got accomplish and if that can not be accomplished, forcing my brother to move it and hoping he can't so he can take possession of it that way. That is what he told us the other day... if it is not moved in 30 days it would be his and he would be living it.

[JudyKayTee]

According to the will, the land is the sons.....according to the notorized paper, the house belongs to my brother. The son wants the house to live in it, so I guess eviciton is what he is trying got accomplish and if that can not be accomplished, forcing my brother to move it and hoping he can't so he can take possession of it that way. That is what he told us the other day....if it is not moved in 30 days it would be his and he would be living it.

Not without a formal Court proceeding - but if the son does own the land and your brother does have a drinking problem perhaps the son just doesn't want legal liability any longer and with this set up, he could have liability.

The Court will have to issue an order.

[ScottGem]

Ok, Well the son is blowing smoke. He has no right to take possession of the home. Even if the will and everything else was entirely legal, that would be true. The only way the son could gain possession of the home is if your brother was supposed to pay rent to him for use of the land and was in arrears on that rental. The son could then sue him for the back rent, get a judgement against him and attach the home for payment of that judgement.

But that would be a long way off and involve court proceedings. At those court proceedings your brother's attorney (and he NEEDS one) can argue that the son does not legally own the land because the will was invalid.

[ncdeedee]

Thanks... I am getting an appointment with an attorney for the will issue... I really do not think liablity is an issue as the son is a bigger drunk than my brother ever thought being and the son does not work and is just looking for something for nothing... thanks for the advice.