Legal Question in Wills and Trusts in New Jersey
Settlement of estate
My mother died and in her will bequeathed all assets to the 3 children evenly (split 3 ways).
The will was done in 1986.
In her last year alive (2008), my mother put my sister as joint owner of several investment accounts and put me on as joint owner (JTWROS) on several investment accounts.
My brother was not put on as an owner of any of the investment accounts.
These accounts have not had to go through probate, as my sister and I are now the owners.
Should these assets be included in the 1/3 calculation of the total estate?
Or are they deducted, and only the assets that went through probate (car, jewelry, cash) are split 3 ways?
This will have a material impact the disposition of the assets and how they are split.
2 Answers from Attorneys
Re: Settlement of estate
The answer may depend on your mother's intent.
Did she understand and intend that one of her children would get substantially less than the other two by virtue of naming the other children on the JTWROS accounts?
I see this issue all the time, often because the parent did not understand the legal effect of naming a child on a JTWROS account [often opened for convienience or to 'avoid probate'] and not meant to disinherit the other child.
Usually, if the parent did not intend to distort and change her plan as shown in the will, the accounts will be added back into her estate for purposes of distribution. If the beneficiaries can not agree, this could end up in court with a judge making a decision based on your mother's probable intent.
Re: Settlement of estate
You have demonstrated a very common problem in Estate Planning. Wills and other estate planning documents are made. Then, over the years, the testator re-titles assets resulting in a material change in the intended results. That is why I suggest Estate Plans get reviewed at least every 5 years.
In your case, the Will most likely does not make provision for non-probate assets. The result is you and your sister will get more than your brother. Obviously, that can cause much anger and resentment!
You should talk to your Estate Lawyer about some of the different options including a partial disclaimer.
I hope this helps!
Ron Cappuccio
http://www.SaveYourEstate.com
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