Legal Question in Wills and Trusts in Florida
My mother and stepfather died within 6 months of each other
My mother passed away in November 2002. We know that she had a will, but we cannot locate it. My stepfather passed away this week, six months after my mother. His will, which we found, stated that if he died first, his half of the house would go to her. We assume her will was the same, but we have not been able to locate her will. Since they are now both deceased, do her children have a legitimate claim on her half of the house?
3 Answers from Attorneys
Re: My mother and stepfather died within 6 months of each other
Usually the Will of the surviving owner controls. Several questions for which information is not provided. How was the house owned, tenants in common (each owns an undivided 1/2 interest) or joint tenants with rights of survivorship (entire ownership goes to survivor)? This information is important to a proper answer. Also, did your mother use the same lawyer for her Will? If so, get a copy. If her Will left her interest to your stepfather, he owns it all under any circumstances. He may even have inherited it if she had no Will, under the laws of intestacy. This has to be checked with a Florida attorney and perhaps it is necessary to get a copy of the Deed. Did his Will provide an alternative disposition of the house if he survived your mother? Since he is not your natural father (unless he adopted you), you may not have any rights in his estate unless he provided for you in the Will. Much more information is needed to properly respond. Also, if there was no alternative disposition in your step-father's Will, you may have a malpractice claim against the attorney for poor draftsmanship. Especially if the property goes to only his natural family and you are excluded.
Re: My mother and stepfather died within 6 months of each other
If they purchased the home in joint names after they were married, it would automatically pass to him upon her death, unless the deed said otherwise (no matter what her will said). If she owned it outright, or if they owned it as tenants-in-common (depends on how the deed reads), assuming no will can be found, her interest in the home would pass to her children, subject to his right to use of the house for his lifetime. As he has since died, that interest would now belong to her children. This would have to be determined by a Florida probate court to put this change of ownership on record.
Re: My mother and stepfather died within 6 months of each other
To add to the previous reply, if an attorney prepared the will, you should try to locate him or her. Sometimes, a copy of a missing will can be admitted to probate. Good luck.
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