Legal Question in Wills and Trusts in North Carolina

If my uncled willed a house and his personal property to my father, then to his 2 children if the father is deceased - can the stepmom claim the house as hers. My uncle specifically left my stepmom out of his will even though my father was married to her at the time. Shortly after the will, they separated and stepmom moved out.

Asked on 7/15/16, 6:28 pm

1 Answer from Attorneys

You do not indicate where your uncle lived at the time of his death or how the house was titled. Just so I understand the facts, you are stating that your uncle was single and he left a piece of real property to your father and if your father pre-deceased your uncle then the will stated that the land would pass to the father's children, correct?

You raise a couple of different issues here. First, step-mother has no right to inherit from your uncle and he was not required to leave her anything. So she cannot make a claim for anything under uncle's estate. The issue here is going to turn on exactly what uncle's will says - which I have not seen. If it says something like "I leave my land located in x to my brother (your father) and if he predeceases me to my nephews, A and B (you and your sibling) " Under this language, if your father died before uncle, then step-mother does not have a right to claim any portion of the land.

However, if father died AFTER uncle and the will did not contain any provision requiring father to live a certain amount of time after uncle to claim the land, then the land would pass to father. If father then died, it would be administered as part of father's estate through his will, if any, or under the state intestacy law where father lived at the time of his death. If father was married, then his wife (your step-mother) would then be able to claim either as a beneficiary under your father's will or if your father had no will under the intestacy laws. Her share would be 1/6th to 1/3rd roughly. But, you indicate your father and stepmother separated. Did your father and mother have a a marital separation/settlement agreement? If so, then she may have waived any rights in their to inherit from your father's estate. Or, if she moved out, then you might be able to argue that step-mother waived her rights to inherit from father's estate.

Right now, you need to know (a) what uncle's will says and the order in which father and uncle died. That will tell you whether step-mother can make a claim or not. If she can, then you need to know if your father made a will and separation agreement or whether step-mother abandoned her rights.

My answer assumes everyone is in NC. Not all state laws are the same so if your father and uncle lived elsewhere t hen you may need to consult two probate attorneys if your father and uncle lived in different states. If they lived in the same state, then you just need to talk to one.

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Answered on 7/17/16, 2:16 pm

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