Legal Question in Wills and Trusts in New York
I've got an Aunt whose husband recently passed away. In the will it states that after a certain amount was given to the children she should receive the remaining money.
"All the rest, residue and remainder of my property, be it real, personal or mixed, of whatever kind and nature, and wherever situated, of which I shall be seized or posessed, or concerning which I will in any way be entitled at the time of my death, I give, devise and bequeath my wife, for her lifeime, income only. Upon her death, principal to be paid to my grandchildren, her surviving in equal share."
The next Article states, however, "Should my wife choose to exercise any right of election she may have under the laws of the State of New York at the time of my death, then for purpose of the TRUST provided in the previous Article, she shall be deemed to have pre-deceased me, and the TRUST shall be for the benefit of my grandchildren only me surviving and my wife shall have no further rights under this will than payment of such elective share."
Beneficiary of 401k /IRA - but these funds for some reason have been thrown into the estate
He owned a house that was recently sold and that money is going to the estate. Right now she is being told that she will not receive any of that and that the money from the sale and that it will go to his grandchildren instead. The will appears to me to state that the money should go to her and after she passes the remaining money goes on to the grandchildren.
2 Answers from Attorneys
No. She only gets income therefrom (interest or investment). Depending upon amounts involved, she may want her elective share.
I agree with David, that she gets only income for life or may elect her marital share (usually 1/3 of probate estate). The 401(K) is not part of the probate estate that the Will acts upon, presuming she is specifically named the beneficiary of it, and is treated separately. I am also presuming that she was not named in the Deed to the house. As I interpret the question, she will get only income of all assets, including the house sale proceeds, plus the 401(K), if she elects to accept the Will provisions, or she will be entitled to the spousal elective share of probate assets (plus the 401(k) if she elects not to accept what the Will provides. This is a response to an Internet question and the reply is not intended to be legal advice or as creating an attorney-client relationship. Different or omitted facts could change the response.
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