Email of last requests after the will

[Robert olohan]

Jurisdiction

Delaware

1. My father is on hospice care down to his final days/weeks. He created a will in may of 2016 at which time he listed his girlfriend as his common law wife (they lived together for 5 years in Delaware and never legally were married). In the will he states he is leaving the house to his girlfriend. However on december 4th he wrote an email to his brother about his "final wishes" in which he states he wants to leave the house to his girlfriend, but whenever she sells my father's profits should be split amongst his three surviving children. My father was not on morphine and of sound mind during the email. Could this email override the will from 2016?

2. Also, in his "final wishes" he states for his federal credit account to be split between his four grandchildren. This account is not mentioned in the will. Would this likely hold up in probate?

Thank you for your help!

 

[Tax Counsel]

1. My father is on hospice care down to his final days/weeks. He created a will in may of 2016 at which time he listed his girlfriend as his common law wife (they lived together for 5 years in Delaware and never legally were married). In the will he states he is leaving the house to his girlfriend. However on december 4th he wrote an email to his brother about his "final wishes" in which he states he wants to leave the house to his girlfriend, but whenever she sells my father's profits should be split amongst his three surviving children. My father was not on morphine and of sound mind during the email. Could this email override the will from 2016?

No. In order for that e-mail to replace or amend the old will it must meet the requirements of a will. That means it must be in a writing signed by him and also signed by two credible witnesses. See 12 Delaware Code § 202. And moreover, in order to do what he expressed in the e-mail he would have to specify either leaving her a life estate with the remainder interest in his children or create a trust. He cannot leave her the house outright and then control what she does with the proceeds when she dies. Once she gets it outright the house is hers to do with as she pleases.

Note that only a few states still recognize the formation of common law marriages. Delaware is not one of them, so they are not married unless they went through the steps to get the marriage license and have the formal wedding ceremony.

Also, in his "final wishes" he states for his federal credit account to be split between his four grandchildren. This account is not mentioned in the will. Would this likely hold up in probate?

It won't hold up because it is not a will. He either needs to designate beneficiaries on the credit union account or have it specified in his will who gets the account. It is possible the account agreement specifies default beneficiaries. One would need to read the agreement and also see if he designated any beneficiaries to determine who gets it. Note that since the account is not mentioned in the will if there are no beneficiary designations on the account the account will go by intestate succession to his descendants. His girlfriend would not get any of that as they are not married.

 

[zddoodah]

My father is on hospice care down to his final days/weeks. He created a will in may of 2016 at which time he listed his girlfriend as his common law wife (they lived together for 5 years in Delaware and never legally were married).

Doesn't matter if they lived together for 50 years. Delaware does not allow the formation of common law marriages.

In the will he states he is leaving the house to his girlfriend.

So...the will refers to this woman as "common law wife" but says he's leaving his house to his "girlfriend"? Needless to say, the exact language of the will is important.

on december 4th he wrote an email to his brother about his "final wishes" in which he states he wants to leave the house to his girlfriend, but whenever she sells my father's profits should be split amongst his three surviving children.

I have no idea what "she sells my father's profits" might mean.

Could this email override the will from 2016?

Doubtful (at best) that a court would accept an e-mail as a valid codicil or amendment to the will.

Also, in his "final wishes" he states for his federal credit account to be split between his four grandchildren. This account is not mentioned in the will. Would this likely hold up in probate?

Again, it is doubtful that a court would accept an e-mail as a codicil or amendment. In the case of a bank account, the proceeds go to the designated pay-on-death beneficiary and are not part of the deceased account holder's estate. If there is no designated beneficiary, then the account likely passes to the estate. In that case, if the money in the account would pass according to the will's residuary clause.

 

[Robert olohan]

Thank you. My father is in his final hours now and his significant other has a lawyer and told us we cant stay there with him. She said we need to get a hotel and if we visit we need her permission.

 

[army judge]

Thank you. My father is in his final hours now and his significant other has a lawyer and told us we cant stay there with him. She said we need to get a hotel and if we visit we need her permission.

If the two are not married, she's a legal stranger to your father.

Hire a lawyer, get this sorted ASAP, unless you are cool with being sheared to the skin.

 

[flyingron]

You should keep all the details in the same thread.

Credit union account USPS

As you were told there, you need to:
1. Determine how the property is titled.
2. Get probate going.

TC is of course, correct. Random expression of wishes via email or vocal (as you were told) don't trump a written will.

 

[adjusterjack]

This is actually the earlier of the two threads so I moving the contents of the other thread to this one.

Robert wrote the following on Sunday 12/30 at 7:59 PM:

My father passed on Thursday december 27th. His girlfriend basically takes everything as per the will, but my father also has his credit union account from the USPS which he recently added his girlfriend as a joint account holder.

1. Can I freeze half of that account since half of that account should be divided up between my two sisters and I? Would we receive those funds?

2. Are the funeral expenses taken out of the estate or reconciled from the estate after probate is completed? Costs we anticipate incurring are cremation $2500, memorial $2500, repast $2500, obituaries $500.

3. My fathers girlfriend neglected my father as POA and has a bad drinking problem. She threatened hospice to call 911 last Sunday and when the nurse came she had to call the cops as no one answered the door. Cops came and the girlfriend didnt remember anything the next day. She had pills in the wrong containers. There were heart pills on the floor that she couldn't remember if she gave them to my father or not. She turned away hospice numerous times.

4. The girlfriend was also making numerous hurtful statements to my sisters and I about us only being there for the money, telling us to lawyer up, telling us on Christmas eve not to visit our father anymore as he is "actively dying and if we visit he will try to hold on and die a longer painful death". In the same thread she then told us her lawyer told us we cant visit stay over the house anymore that we would need a hotel and ask for permission to visit.

5. The night before my father passed she left the house at 6 PM with a fake show of her leaving for the night with empty suitcases only to return a little over an hour later with bags full of liquer.

6. My father planned for his girlfriend to pay for the funeral expenses from his credit union account which is why he added her as a joint account holder and now she is acting like she doesnt have money in the account.

7. Do we have any rights to go into the house to go through our fathers stuff? It is still his house at this point even though he passed.

Flyingron responded on 12/30 at 8:58 PM:

1. If the account was held jointly, the money is HERS. All of it. There's no "his half" or "her half." You can't freeze anything. This is not part of the estate.

2. The funeral expenses are paid by the estate.

3. This is entirely a bunch of non-sequitor details.

4. She was free to do this.

5. Again non-sequitor.

6. She's not obliged to do this.

7. No. For several reasons. First if she was the joint owner of the house, she owns it all now. You going in there has a simple term: CRIMINAL TRESPASS. If there is a will that gives it all to her, then it will be hers (once probated).

I'm sorry for your loss. But here is what you need do. First, get over the animosity you have toward the girlfriend. It was your father's decision to make who he spent time with and what he wanted to do with his assets. It's not yours.

If you end up having to pay for the funeral, then yes submit those costs to the estate. If the girlfriend isn't active in getting probate started, you should contact an attorney to do so.

Adjusterjack responded to item 7 on 12/30 at 10:53 PM:

Maybe not. Look up the deed in the county records and see whose name is on it as owner and how it's titled. If it's just his name and he died without a will either you or one of your siblings better hotfoot it to the court, open probate, get your papers and THEN you will have the authority. If he had a will, then that's the job of the executor nominated in the will.

If the house was owned by him and his girlfriend with right of survivorship, then it was her house at the moment of his death.

If there is any other type of ownership designation, that comment might change.

Realistically, if it turns out to be her money and her house and you pay for the funeral, don't expect to get reimbursed unless he had assets in his name only.

Robert wrote on 12/31 at 5:24 AM:

Thank you. It's a shame because verbally my father said it several times about everything being paid for from his credit union account and now she is not paying for his funeral. We will have to bear the cost as I doubt his girlfriend is even coming to the funeral.

I have an email my father sent to his girlfriend within the last year where he put her on blast calling her a gold digger, an alcoholic, not contributing to any Bill's around the house, always in her room watching movies and drinking wine, calling the bedroom "her room" and making my father who is a stage 4 cancer patient sleep on the couch for the last year and a half, making snarky remarks to him all of the time, etc etc. She abused my father who was stage 4 terminal cancer and it's disgusting. For some reason he only gave her what he did because he was almost buying some small form of affection from her. She manipulated him into giving her everything. She has only been in the picture for 6 or maybe 7 years. Nobody knew of her when they bought the house together. Smdh

Adjusterjack responded to the bolded on 12/31 at 8:20 AM:

That doesn't bode well.

Check the deed with the county recorder of deeds where the property is located.

 

[Robert olohan]

Thank you everyone for your responses!

 

[Robert olohan]

So now the girlfriend is charging the funeral expenses on my fathers credit card where she isnt a joint account holder. I think she is trying to make my sisters and I pay for it in the long run after we get a small amount from his TSP (like a federal employee 401k).

1.Will she be responsible for these charges in the end or will my sisters and I end up having to pay his credit card?

2. Is it legal for her to use my fathers card?

 

[army judge]

1.Will she be responsible for these charges in the end or will my sisters and I end up having to pay his credit card?

If you report your father's death and her illegal use of the credit card to the card issuer, you'll be instructed how best to proceed.

You'll also need to inform the police authorities of her alleged criminal activity.

2. Is it legal for her to use my fathers card?

Of course not, but until her activities are reported, she'll keep stealing and using.