Q&A with Loraine: Lot in Deceased’s Name

Question: Who is entitled to a lot not listed in my deceased husband’s will?

Loraine’s Answer: Please accept my condolences on the loss of your husband.

In general, if a Will does not specifically state where a particular asset, such as a parcel of land, goes, then it would be distributed along with any other assets that remain in the probate estate after all debts, taxes, expenses, specific bequests (provisions that provide for particular assets or sums to go to specific beneficiaries), and any Year’s Support claims have been addressed. The question your post leaves unanswered is where your husband’s Will says those remaining estate assets (sometimes referred to in a Will as the “residue” of the estate) go. For example, if the Will says that the residue of his estate goes to you, then the lot would go to you, along with any other remaining probate estate assets. Note that this statement assumes that your husband was the sole owner of the lot, so that no right of survivorship applies; and that his Will was written correctly and not overly specific.

As the surviving spouse, you might also have the option, if your husband died less than two years ago, to make a claim for a Year’s Support. A Year’s Support claim could allow you to potentially claim the lot and other estate assets even if the Will says that other beneficiaries are to receive property.

You need to have an experienced probate attorney review the Will and the rest of the facts surrounding your husband’s estate. The attorney can then help you understand how things are intended to pass under the Will, which assets may not be affected by the Will, and what rights you may have to make a Year’s Support claim. There’s really no way for anyone to provide you with all of that in this kind of forum as there are too many facts that need to be known.

Key Estate Planning Takeaway: The “residue” of an estate is a legal term that is generally used to refer to the assets that remain in a decedent’s probate estate after all other items payable or distributable from the estate have been addressed. The residue of an estate normally contains any assets that became part of the decedent’s probate estate and that are not the subject of specific bequests made in the Will. A well-written Will should state where, how, and to whom the residue of the estate will pass. An experienced probate attorney can help you review a Will and understand how assets that are not specifically listed in the Will but that became part of the estate should be treated and what rights potential heirs and beneficiaries may have with regard to those assets.

This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.

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