THE FACTS: My father recently died at the age of 98. I am 78 and not well. My oldest brother is the executor of my father’s estate. In his will, my father directs his executor to distribute this estate in equal shares to me and my siblings. My brother strongly dislikes my wife and has made it clear that if I pass away before my father’s estate is settled, that he has no intention of distributing my share of the estate to my wife.
THE QUESTION: Can my brother legally withhold my share of my father’s estate from my wife?
THE ANSWER: As executor, your brother is legally bound to honor your father’s wishes whether he likes it or not. Regardless of whether you are alive at the time of distribution or not, your brother cannot change the terms of the will.
If you had died before your father, how your share of his estate was to be distributed would have depended on the language in your father’s will. For example, if your father’s will said his estate was to be divided equally amongst his children, per stirpes, and you predeceased your father, your share of his estate would pass to your children, not your wife. If your father’s will stated that his estate was to be divided equally between his then living children, your share would be distributed, pro rata, to your siblings who were alive when your father died. However, since you were clearly alive when your father died, you have a vested interest in your share of his estate.
If you are still alive when your father’s estate is settled, you are obviously entitled to receive your share of his estate outright. You can then do with your inheritance whatever you wish. If you pass before your father’s estate is settled, your share of his estate will pass to your estate.
Once an executor or administrator is appointed by the court to handle your estate, that person will have the authority to distribute your inheritance in accordance with the provisions of your will. If you do not have a will, the intestacy statute will dictate how your estate will be distributed.
If your wish is to have your estate, including the inheritance from your father, pass entirely to your wife, you should retain an experienced estate planning attorney to prepare a will that reflect your wishes. This is particularly important if you have children since, without a will, the intestacy statute would require that your children receive a share of your estate.
Linda M. Toga, Esq provides legal services in the areas of estate planning and administration, real estate, small business services and litigation. She is available for email and phone consultations. Call 631-444-5605 or email Ms. Toga at [email protected] She will respond to messages and emails as quickly as possible.