Probate Question

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Probate Question

Mother died last week. Married Gerry 82 days ago. He moved into her house, his
name is not on the deed, nor is it on any accounts. Estate is in excess of
100,000. I am one of 4 siblings. Gerry is not civil and will not talk to any of us.
He has a dumpster on the driveway and is filling it up. How do we stop him from
doing this? Would a probate attorney handle this? We’ve tried to get the police
involved, but they claim it’s a civil matter. We’re afraid he’s going to fill the
dumpster with items we would want and they will be forever gone. Please help

Asked on November 21, 2017 under Estate Planning, Illinois

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

You do not mention a will, so will assume there is none--though note that if there was a will, then your mother's property goes to whomever she willed it to. 
If there was no will, then in your listed state (Illinois), her spouse gets 1/2 of her estate (1/2 her belongings, a 1/2 interest in real estate, etc.) and her descendents (e.g you and your sibilings) get the other half (i.e. her children will share the other 1/2, so if there are 4 of you, you each get 1/8th). It does not matter how short a time they were married: married is married for this purpose, whether it's 1 day or 75 years or anything in between.
The police are correct; this a civil matter. You can take legal action to prevent him from disposing of any her belongings since you have your own claim to them, and to generally ensure a proper distribution of the estate. This will involve having someone appointed as personal representative, putting the estate into probate, seeking an injunction (court order) on an expedited (emergent) basis to prevent anything from being thrown out, taken, sold, etc in the meantime while the estate is probated, etc. This can be very complicated procedurally: you and your siblings are strongly urged to retain a probate attorney to help you, and do so immediately.


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