Did my father have the right to give a life estate to property he did not solely own?

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Did my father have the right to give a life estate to property he did not solely own?

My father recently passed and left a life estate to his second wife. My mother and father’s Will was a joint Will and was destroyed 27 days before he passed. This is when we found out that our mother’s Will was never probated. We filed for intestate succession and found out that the property is still half in her name. So far the second wife’s lawyer has agreed that half of the property belongs to my mother’s children.

Asked on August 28, 2010 under Estate Planning, Texas

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

If the Will is destroyed where is the life estate recorded?  In a trust?  You need to speak with an attorney in your area on this matter as soon as you can.  Were your parents divorced when your Mom died? Was there an agreement as to the ownership of property in the divorce? How was the property held: as joint tenants with rights of survivorship?  All these questions have to be answered and the Will of your mother read by someone who can map out the chronology of event and let you know how the law will view the matter in light of the events.  AS for the joint will, can your Dad's portion be obtained from the attorney that prepared them and can it be proven using your Mother's Will?  If the property passed to him at her death it may be his to do with what he wants. He destroyed the will.  It was his choice to do so.  Good luck.


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