Does a pre-nuptial agreement over rule a last will?

It sounds like you need to contact a lawyer.

I just read all of your posts, the last Dec 2017.

So I guess if you are questioning a Will Mom never disinherited you. I would not listen to a POA. Is this POA/Executor a lawyer? If not they aren't I would not take their word for anything.

I answered my last question thinking Mom was gone. I really don't think you need to worry about anything until Mom passes and her Will probated. There is a timeline for a Will. In my State it can't be closed for 8 months. Longer if contested. You are just going to need to wait until the Will is probated. Since Moms estate is large, the Executor (if not a Lawyer) will probably need to hire a Lawyer to help Probate the will. Like I posted earlier, if Mom came into the marriage owning property, it not part of the marital property. But there is nothing u can do until the Will is probated.

Willie, I usually enjoy responding to situations like you describe, but after reading your posts and responses, I don't think I'd even try. For one thing, there are interchangeable terms which mean different things.....Revocable Living Wills - do you mean a Revocable Living Trust? A Living Will addresses medical care, not the issues a Will or Trust would address.

Who is the executor, who apparently also is proxy under a POA? And BTW, there is no POA for an estate; it's either an Executor, Executrix, or more recently, a Personal Representative. But if there's a Trust, the individual managing it would be either the maker (Settlor), or a Trustee.

That's not a criticism; these are confusing issues, and that's why you need a real attorney, not advice from posters on a forum. The situation is just too unclear.

Given the size of the estate, the questions you have, I really think you need to see an estate planning attorney who also handles Living Trusts, or a certified elder law attorney, and get advice from someone who actually practices in this field.

She/he can also help explain the function of the various documents. The issues you raise really need that kind of specificity.

Willie, I understood that you had been completely disinherited by your mom.

Sweetheart, you really need to get on with your life and not worry about what you will get when your mom dies.

If you have never had any good relationship with her you really can't count on getting anything. She would disinherit you just because she is who she has always been with you.

My opinion...the prenup is null and void. So now there is a Will. According to the article I attached, Community Property is what has been acquired "during the marriage". If your Mom owned these rental properties before she remarried, her husband is not entitled to them. Because they kept their money separate that, to me, shows they were trying to keep things separate. I doubt a lawyer, knowing the laws in your state, would have written a will leaving you 70% if Mom bought the properties after the marriage. He would have told her because of Community Property laws she could only leave you half or maybe nothing at all.

Every state is different as is each situation. I think what you need is a lawyer on your side. If the property is worth as much as you say, then it will be worth it.

https://ez-probate.com/learn/resources/what-is-community-property-and-how-does-it-affect-probate/

There is NO so-called “Executor”..... your mom is still alive, right?
If so, no executor is appointed by probate court until after mom dies; and who is named executor can be challenged; and the type of executor format named could be a “Dependent Executor Administration” which means every action is court supervised.

Anyone who is calling themselves her “executor” is Either imo:
- clueless about what an executor is
OR
- is deliberately lying to you to intimidate you. If you have any correspondence from them that read they are “executor”, make copies and put a set in a safe place. If this is just been verbal, get them to say all this again WHILE you are recording the conversation AND have it on speakphone with someone else in the room listening to it.

1.3M scattered into properties and who knows what else, will not be a simple Estate to deal with. It’s not ever in my experience as an executor 3 times to be a DIY. If it were me, I’d just be planning on hiring my own probate attorney who does litigation and proactively meeting with them now ahead of moms death. You want Your atty at the ready to file challenges onto the docket that your moms estate will be. It has to be probate atty who does litigation, this is not what most probate guys do. The retainer will be somewhat More, but there are assets out there if you needed to do a contingency representation agreement.

Id be very concerned that if this person has dpoa that they have or may try to do paperwork to shift assets..... like move ownership from in your moms name to go into a Trust, or LLC, or sell property now so that proceeds of the sale then goes into joint bank accounts so now community property.... basically doing things so that those assets are no longer under the terms of a will. Stuff like this can get tracked but for most of us, it is not in our wheelhouse to do and do correctly. Probate attys have forensics associates who do this type of research routinely.

I’d also be concerned if they are all about doing whatever for the benefit of your mom’s husband to the detriment of your mom. If this might can be established, you can hire an attys. to go after guardianship for mom and then that guardian gets to deal with moms property.

Really to me you need an atty to proactively start looking into your moms lifestyle and assets. I’d start with finding a probate atty as there’s goin g to be Estate property to deal with, so you’ll need probate no matter what. They will know of guardianship guys. Both are heard in probate court, in my experience. It will be a somewhat small group that do the majority of cases..... probate guys will know guardianships guys. Good luck.

Talking to a lawyer well versed in this kind of thing will help you to calm down and not worry about this. I can see why the loss os money/properties that were left to you would be distressing, since that is obviously what your mother wanted you to have. However, the law is the law--so you really need to talk to someone who has the skills to unravel this mess.

Good Luck with this.

Reading a post from you in 2014, are you sure mom has not executed a new will?
You would not be entitled to see it unless mom wanted that to happen.

You can ask attorneys questions on AVVO at no charge. Responses may come from anywhere in the country, though and would not necessarily apply to the state you are in. You need to see an attorney.

What is stepdad's health status? Mom's assets may very well be paying for his care as well.

If she kept the properties separate, they may not be community property, I would talk to the executor.  It depends on how she acquired the property.  The executor may be assuming all is community property.

Living wills are about how you would like your end of life health care managed. A living will won't distribute the assets after death.

Do you think your mom and stepfather made separate, revocable trusts? They are slightly different from wills.

Did your mom make a Last Will and Testament? Was that will properly signed according to the laws of her state?

I think a will or trust, if properly executed, will override any community property laws. The community property distribution of assets would come into play if your mother and stepfather divorced or if she died without a valid will. If she and her husband have both executed wills, they will be used to distribute their assets after death.

Laws often have exceptions and vary by state so the very best person to answer this for you would be a lawyer from your mother's state. If the executor will allow you to see it, take her last will and testament to a lawyer for a review. It will be money well spent.

I think the best advice would be not to plan on inheriting a particular amount of money. Some of your mom's assets may have to be sold or mortgaged to pay for her care.

Ok folks, just found out bad news. My mother never signed or recorded the prenuptial agreement, so in essence there is no prenuptial agreement. Now on to next question. My mother and her husband both did separate revocable living wills. My mother and her husband have kept their money separate throughout their marriage. In my mothers will she is leaving me, her only child, 70% of her estate. Someone told me that because my mother lives in a community property state her husband could get her entire estate when she dies, will or no will. This someone told me that community property state over rule wills. Is this correct?

Did her husband sign the prenup? It seems to me that since the assets are your mom’s that she came into the marriage with, assuming based on your question this is the case, the more important signature is his not hers. Her living expenses I assume are being paid out of this money? Are his expenses being paid as well out of this or does he have his own money and children to manage it? Did he participate in the management and upkeep of these properties and should he be sharing, does the other 30% go to him and is that fair? Legalities aside if you exhibit concern about keeping it fair to him you might get more up from cooperation rather than a battle, legal or otherwise which will be better for everyone, emotionally and financially.

Is this Executor/POA an attorney? Is the attorney who drew all of this up still around?

Actually. The laws regarding prenuptial agreements vary by state. So without knowing what state your mother & stepfather life in, we can’t give you an accurate answer. In some states the agreement would have had to be signed by BOTH parties in order to be valid. Also prenuptial agreements generally do NOT expire. So after 25 years a signed prenuptial agreements is valid unless it was written with a set expiration date. Also, even if the prenuptial agreement was signed, there are factors that can invalidate the agreement. Like a will, it can be contested. So...you really need to ask an attorney about this.

After 25 years the prenup wouldn't be valid anyways.

Do you mean her last will and testament? Because that is what would decide how her estate dealt with when she passes. Hopefully she signed that.

You can always schedule a consultation with an elder law attorney, www.nelf.org can help you find a certified elder law attorney in your area.

If she didn’t sign prenup and did sign living will when competent, the signed document is the one in force.