Your Husband Died and His Children are Asking Questions

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Your Husband Died and His Children are Asking Questions

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If your husband died and his children are asking questions, what do you do? Your husband’s kids may be asking if they can get your husband’s belongings, such as family photos or furniture. Perhaps you and the step children don’t agree on whether your husband should be buried or cremated.

First, you need to see a probate attorney right away. Find out your rights and responsibilities. Once you know where you stand legally, then you will be better able to deal with the other family members. Treat your husband’s kids with respect. But you also don’t need to be a door mat. Maintaining communication is important. It is usually best to invite them to the funeral or memorial service. It also helps diffuse some of the emotions by allowing your husband’s kids to get mementos, such as family photos. These are easy enough to copy and distribute. (You can either take the photos to an art store than can duplicate them. Or there are places that can scan them and save them digitally.) The same thing applies to military medals; you can purchase duplicates for family members who want them.

As to the bigger issues (like your husband’s house and bank accounts), you need to understand that the devil is in the details. Estate planning and probate can be complicated. To help explain what happens, let’s see what will happen to your husband’s house:

  1. If your husband added you to the house deed as “joint tenants with right of survivorship,” then you get the house now that your husband died. Even if your husband had a will or trust, the designation of a beneficiary on a house or account trumps whatever it says in the will or trust.
  2. If the house was in your husband’s name, and he didn’t have a will or trust, then the house is transferred according to state law. The applicable statute in Arizona is somewhat complicated, but generally you (as the surviving spouse) get 50% of your husband’s “stuff” and his kids get 50%.
  3. If your husband had a will, then the will determines who gets what.
  4. If your husband had a trust, you need to see a probate attorney.  While the trust probably determines who gets what, this is not always black and white. For example, you are probably the sole trustee now that your husband has died. However, there are other issues. What rights do you have to income and principal? Are you supposed to divide the trust into different subtrusts?  Do you have a power of appointment?

It always amazes me how blended family seem to get along fine over the years until one of the parents dies. Then all of a sudden the biological children of the deceased parent becomes scared that they’re not going to be treated fairly. Sometimes this is justified, and sometimes it is not. So often, the surviving spouse excludes the other side of the family from even basic civilities. Suddenly, the surviving kids never find out about the funeral. Their request for copies of photographs and family mementos go unanswered. Sometimes they can’t even get a copy of the will! This friction can lead to arguments and even court battles.

If your husband died, you need the help of a probate and trust attorney who will take charge right away. Give us a call at our Scottsdale office and ask if we can help you.


3 Comments

Sheila

February 18, 2016at 4:49 pm

Hello,My Mom is living off a trust fund from her faethr. She is spending interest as well as the body. The trust is closely kept by the bank and dribbled out to her for her rent etc. This and SS is all she has. Can she shelter this trust allowing her to get some government benefits?

    Paul Deloughery

    March 24, 2016at 8:35 am

    Maybe. I’d have to have more information. There are two issues. First, is the trust revocable (meaning, can it be amended). If not, there is probably a way of doing it by asking the court to amend it. Second, what government benefits are you talking about? If you are talking about SSDI, and you mom’s income is more than is permitted, then your mom would want a Miller Trust for that income to be paid into. If you are talking about Medicaid (or in Arizona, AHCCCS), then she wants to include Special Needs Trust provisions, and there will be a five year lookback. Either way, you or she needs to talk to an attorney to figure out the solution. Thanks for the question.

    Paul Deloughery

    June 29, 2016at 10:12 am

    I’m not an expert when it comes to government benefits. I suggest contacting an attorney who practices in the area of “elder law” and specifically in the area of government benefits.

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