My husband's will states that upon his death, I (his wife) am to receive all monthly rent checks from his rental property until the property is sold. The rental property is part of his estate and his will states that it is to be sold. Also, my husband (who is still living) has already written a letter to his tenant directing him to make out all his rent checks to me . The tenant has been doing this now for several months.
After my husband dies, can I keep and spend the checks as I get them or must I turn them over to the executor of the will until the estate is settled?
1 Answer from Attorneys
You need to speak with a lawyer and provide more detail to obtain a thorough and proper answer. How are the properties currently held? Are they in your husbands name only, or are they jointly on each deed? It sounds like they might be only in his name, based on the way your question is worded, and his direction that the properties be sold. That fact alone (ownership interest) makes a difference as to how the property is transferred upon his demise, and how you obtain your interest, along with tax consequences. Property held jointly will automatically transfer to the surviving person without having to go through probate, or face tax consequences. Any property that is not held jointly, and is devised to someone via will, may go through probate. Your husband's will does not necessarily have to go through probate unless someone disputes the will, there are debts to be paid, lawsuits pending, claims against the estate, or the will/estate is extensive or complicated (such as property being sold and then the proceeds going through probate and/or distributed).
If your husband is leaving all of his assets to you, then why would he insist that the properties be sold? Is there a timeline stated? What if they can't be sold for something more than any liens against them, due to the current market, and it is best for all beneficiaries to hold onto the properties for a year or two? Remember that anyone who obtains real property through a will or joint ownership is also responsible for liabilities, such as mortgage payments, property taxes, insurance, etc.
You should meet with an estate planning attorney to perhaps revise the will and make any necessary property transfers now, so the transition later is easier and quicker. If an attorney has the entire picture, i.e., all assets and liabilities, what your husband's exact intentions are, then that attorney can proceed accordingly. Your husband may be doing what he thinks is best and easiest for his family, but did he consult with a lawyer? How old is the will? It may need to be updated, or nothing else. Because lawyers know all the quirks of how probating a will or trust works, an attorney can protect your interests accordingly.
Should you need a lawyer to assist you, please feel free to contact me. Thank you.