Legal Question in Wills and Trusts in Florida
Do we need to enact the will?
My mother's uncle in Florida died. He had a will. My cousin is executrix. He leaves everything to his wife upon his death. Their wills are identical. Everything to each other and upon the death of the surviving spouse divison of their assets between all of the nieces and nephews of both of them (if my uncle died first then after his wife dies everything is distributed among his nieces and nephews and her nieces and nephews equally and vice versa), they had no children. A relative of my uncle's wife says the will does not need to be executed by my cousin since everything goes to his wife intially. He claims nothing needs to be done until my aunt dies. Is this true? Also...can my aunt write a new will in which my uncle's family receives nothing..since her relative seems to be exerting very significant influence on her. Thank you for your help.
2 Answers from Attorneys
Re: Do we need to enact the will?
Unless the assets owned by your uncle were registered in joint names with his wife, in which case they pass to her outside the Will, the Will needs to be probated. This would apply to any and all assets in your uncle's individual name. Also, unless they had some written agreement to make their Wills irrevocable and/or mutual, upon inheriting your uncle's estate, his wife can change her Will and leave everything solely to her family. She is only morally bound to see the estates go equally, not legally without something more having been done. Finally, you have not defined "equally". Does this term mean that 1/2 goes to his nieces and nephews and 1/2 to hers, or that each niece and nephew will receive the same amount, regardless of whose family has more? For example, assume combined assets of $100,000 and 10 nieces and nephews (6 for your uncle and 4 for his wife). Does everyone just get $10,000, or does his family get $50,000 split over 6 people and her family get $50,000 split over 4 people?
Re: Do we need to enact the will?
Not only is there nothing for you to do, there is nothing you can do. The widow owns all of the assets. You have no legal right over the property.
Otherwise, her new will governs the distribution of her property.
Yes, she can write a new will. If she does, it is then a question of fact whether or not she agreed with her husband not to sign a new will. If it is established that she enforceably agreed not to sign a new will then the neices and nephews can assert a claim against her estate.
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