Hainesport, NJ asked in Estate Planning for New Jersey

Q: My aunt passed away leaving a will with 3 heirs. One of the heirs is me. She also left a handwritten, dated, and signed

Letter with specific details of who should get what of her personal property. In that letter, she states that I can live in her house. My question is, if the house is sold, do I have a legal right to the money that was made from the sale of the house?

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2 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
  • Estate Planning Lawyer
  • Crossville, TN

A: If you are a life tenant the house cannot be sold without your signature. If it is sold without your signature then you can still live there for as long as you live. If your signature is requested you can justifiably insist on a portion of the proceeds equal to the value of your life estate.

Mr. Kenneth Albert Vercammen Esq.
Mr. Kenneth Albert Vercammen Esq.
  • Estate Planning Lawyer
  • Edison, NJ
  • Licensed in New Jersey

A: A hand written note cannot change the Will unless a formal Complaint is filed. An Order to Show Cause must be filed with Surrogate. Then all beneficiaries must be served with the Complaint and Order to Show Cause. NJ recognizes some writings intended as Wills

3B:3-2c permits the use of extrinsic evidence in certain circumstances to establish that a document constitutes the testator’s will, including writings intended as wills and portions of the document that are not in the testator’s handwriting.

However, the County Surrogate cannot admit to probate a hand written note.

In Matter of the Probate of the Will and Codicil of Macool, 416 N.J. Super. 298 (App. Div. 2010) has set the standard for the probate of a writing intended as a Will. The proponent must show by clear and convincing evidence that 1) the decedent actually reviewed the document in question; and 2) thereafter, gave her final assent to it.

Based on § 2-503 of the Uniform Probate Code, N.J.S.A. § 3B:3-3 recognizes writings intended as wills:

Although a document or writing added upon a document was not executed in compliance with N.J.S.A. 3B:3-2, the document or writing is treated as if it had been executed in compliance with N.J.S.A. 3B:3-2 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute: (1) the decedent’s will; (2) a partial or complete revocation of the will; (3) an addition to or an alteration of the will; or (4) a partial or complete revival of his formerly revoked will or formerly revoked portion of the will. Source: http://www.americanbar.org/content/dam/aba/publishing/rpte_ereport/2013/2_april/te_alert.authcheckdam.pdf

Typically, in a life estate following expenses related to the real estate are required by the Deed or Will be paid by the person living in the property who has the life estate:

(a) homeowner’s insurance,

(b) real estate taxes,

(c) general assessments and special assessments (if any),

(d) homeowner’s association fees (if any),

(e) Utilities

maintenance, landscaping, snow removal,

minor repairs (repairs costing up to $1,000).

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