In Massachusetts, My dad left his IRA payable upon death to my brother and myself 50/50. His will states $50,000 for each of us. His IRA is not in the will. His cousin gets what’s left over from estate. Does the fact he left us money in his IRA satisfies the will’s listed amount or is that from the sale of his house? The financial advisor says the IRA is a contract and has nothing to do with the will. The cousin disagrees and states as executor that it does satisfies the will so he ends up keeping the house. Who is correct?
ATTORNEY ANSWER BY MARGARET L. CROSS BELIVEAU:
The IRA is not subject to the probate estate. It passes outside of the control of the Will. The personal representative cannot ignore the terms of the will. Occasionally a Will is written where it references non-probate assets and sets out a formula based on what the beneficiaries receive out side of probate. For instance, he could have written, if my son receives $50,000 from my IRA, then he will receive nothing from my probate estate. If your father’s Will simply states, $50,000 to each of my children and the balance to my cousin, then you are to receive $50,000 each. You need to hire an attorney to represent you as beneficiaries if your cousin is refusing to follow the terms of the Will. If the personal representative deeds the house to himself in contradiction to the Will, he could be creating a title problem, which is very costly to fix.
Legal Disclaimer: Please note that this answer does not constitute legal advice, and should not be relied on since each situation is fact specific, and it is impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue. This answer does not create an attorney-client relationship. A lawyer experienced in the subject area and licensed to practice in the jurisdiction should be consulted for legal advice.
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The estate administration attorneys at the Beliveau Law Group provides legal services for probate, estate administration, and trust administration. The law firm has offices and attorneys in Naples, Florida; Waltham, Massachusetts; and Salem, New Hampshire.