Legal Question in Wills and Trusts in North Carolina

My uncle owned land and house with my father in 1976. My uncle also owned real property and real estate assets in his own name. My father married stepmom in late 1980s and my uncle let her stay there while he stayed in another house of his. He returned in the early 2000s and stepmom moved out. Prior to that he wrote his will, which I need interpreted. My uncle died in 2004 (cutting stepmom out of the will completely � and separated from my father) and my father died in 2016. My father wanted to use my uncle�s will to serve as basis for his will. None of the assets or properties passed down from my uncle were ever in stepmoms name Now my stepmom opened up an administration claiming she and her daughter get 100% of the uncle and father�s assets. What are the steps to contest after she makes such an illegal intestacy claim?

Uncle�s Will - Interpret below:

Article IV

All of my property which I may own at the time of my death, real or personal, tangible and intangible, of whatsoever nature and whosoever situated including all property which I may acquire or become entitled to after the execution of this will, including all lapsed legacies and devised, I bequeath and devise in fee to my nephew (MY FATHER)

If said nephew, (MY FATHER), shall not survive me, then I bequeath and devise said property in fee, in equal shares, to his surviving children (ME & SISTER)

Simple interpretation breakdown?

Article VI

I appoint (MY FATHER), to be the Executor of this my last will; and I vest in my said executor full power and authority to sell, transfer and convey any property, real or personal, which I may own at the time of my death at such time and price and upon such terms and conditions, including credit, as it may determine and to do every other act and thing necessary or appropriate for the complete administration of my estate. Without in any way limiting the generality of the foregoing provisions, I hereby grant my Executor with all of the powers set forth in North Carolina General Statutes Section 32-27, subject to Section 32-26, and these powers are incorporated by reference. I direct no surety be required on the bond of my nephew, (My Father) as Executor hereunder, and should my above named Executor fail or refuse to act, then I appoint my daughter, (Uncle�s Daughter), as successor Executrix with the same powers and authorities and without the necessity for bond.

Simple interpretation breakdown?

Asked on 8/05/16, 10:44 am

1 Answer from Attorneys

This is a public forum for help to point you in the right direction. It is not meant as a substitute for legal advice. Any competent attorney will not render an opinion on the contents of a will based on a small excerpt which you chose to publish which may or may not be correct. Even if it is accurate, there might be something else in the will which would affect its meaning. I also do not know what the decedent owned, how it was titled, its value or other information. You need to take the will and information to a probate attorney who practices in the county/state where the estate for your uncle is or would be pending.

You have a very complicated situation. I don't know how the land owned jointly with your father was pending. I don't know if your father had a will (my guess was no since you mention the ee-ville stepmother is administrator - which was beyond stupid on your father's part). I also don't know if the stepmother waived her rights in a pre or post-marital separation agreement. I don't know if she waived her rights some other way - such as under the NC statutes (assuming your father lived in NC at the tume of his death).

The provision (article VI) you quote is meaningless. This just indicates who is to serve as personal representative and their powers. It does not indicate HOW the property owned by the uncle was to be disposed of or who the beneficiaries of that property were.

Article IV seems to provide that anything owned by uncle passed to your father. Since uncle died in 2004, all the stuff went to your father. 12 years passed. What happened? Did father retain each and every item? What happened to it if not?

Stepmother, as I alluded, may have waived her spousal rights. If she did, then all of your father's biological or adopted children will inherit whatever your father owned at the time of his death. If the stepmother did not waive her rights, she will inherit roughly 1/3rd of father's net assets and you, your sister and any other biologicl/adopted children of your father would get 2/3rd. Stepmother's daughter, unless she was adopted by your father, inherits nothing if there was no will for your father.

I don't know what you mean that father wanted to use uncle's will as the basis for his own. This makes no sense at all. Either father had a will or he did not. If he did, then the personal representative has to do whatever the will says and if the will is unclear, then you file a petition and ask the court to make a ruling and interpret it. If there is no will, then either step-mother has waived her rights by statute or agreement or she has not. If she has, then you and your siblings get 100% and if not then you get 2/3rd.

I suggest strongly that you immediately go see a probate litigation attorney who practices in the county/state where your father resided at the time of his death.

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Answered on 8/07/16, 10:57 pm

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