If my father passed recently, who gas rights to his estate?

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If my father passed recently, who gas rights to his estate?

He Willed all his assets to his children, with the intention to make no provision for his wife (who is not our mother). Although she maintained her own bank accounts, along with his own, he had her name on his. Who has rights to the money in that joint account?

Asked on December 23, 2012 under Estate Planning, New York

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

If the funds in the joint account are held as "joint tenants with rights of survivorship", then your stepmother will take ownership as to all money in the accoun. If the account is titled as "tenants in common", then she is entitled to 1/2 the funds with the other 1/2 going to your father's estate.

However, you should be aware that a spouse cannot disinherit their surviving spouse, no matter what the terms of the Will say. My research suggests that in CO, there are 2 provisions designed to provide for the surviving spouse. The first is a "spousal allowance" which provide for the spouse to receive as much as $50,000 from the probate estate even if that spouse is not provided for in the Will. The second such spousal right provides that the surviving spouse gets an "elective share" of the deceased spouse's estate regardless of what the Will says. The elective share is applied to the "augmented estate", which generally much means all the assets owned or controlled by both the surviving spouse and the deceased spouse. The exact amount of the elective share depends on how long the marriage lasted.

At this point, you should consult directly with a probate attorney as to your rights under state law.


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