She had a will and her husband is the bnf the her two kids after his death. What bills can be paid out of this. They had a mortgage with both their names., but the acct that is being set up as Estate only had her name on it. We want to know if the estate acct can used to pay the mortgage to avoid foreclosure. can bills be paid in regards to my uncle as well or for hs benefit?
It depends on the terms of the Will. Generally, though, the assets of the estate could (and normally *would*) be used to pay administrative expenses. As far as what goes to the beneficiaries, you would need to review the Will provisions in detail. The account in question sounds like it properly belongs in the estate. Once a probate estate is opened, the executor would legally have authority to handle all of this. This should be done with the guidance and assistance of a probate attorney.
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An estate account generally cannot be used to pay bills for the husband. You do not provide enough relevant information. When did your aunt die? Where did she live prior to her death? Who is the executor of her estate? Is it your uncle? Does he have an estate attorney? What does the will say about the mortgage? Who owned the land, your aunt and uncle jointly as husband and wife? What probate assets are in the estate?
Assuming that your aunt lived in NC and that she and your uncle owned the land together as husband and wife, the land would have passed to your uncle automatically at the time of death. Land passes subject to a mortgage unless there is some other provision in the will. That means unless the will indicates that the mortgage is to be paid, then it is NOT an estate expenses. And since your uncle's name is on the mortgage anyway, that is now solely his expense.
It is the responsibility of the executor to open an estate account in the name of the estate for your aunt. There should not be an account in your aunt's name. If your aunt had her own bank account, then any funds in that account would be transferred solely to the account for your aunt's estate. If your aunt had a joint bank account with your uncle or anyone else, then the funds in the joint account usually would pass to the other surviving joint account holder.
Bills are not paid from the estate account for your uncle's benefit to the extent they are his personal bills. The estate account is to be used to pay the bills of the estate. Claims are paid in order of priority if there is not enough money. Priority claims are the yearly allowance to your uncle, the first $2500 in funeral expenses, medical expenses incurred within the last year of death and taxes owed to the federal or state tax authorities.
Your post gives me concern as it suggests that the estate is not being administered correctly. The executor of the estate should hire an attorney to assist in the probate administration. If hiring an attorney is not feasible, then the executor should at least pay for a consult with a probate attorney. If that also is not possible, then talk with the clerk of the probate court to hopefully get some guidance, although the clerk will not give legal advice.
Estate Planning Attorney
The account that is created for the estate exists to handle the settlement of claims and the distribution of liquid assets. This account is not appropriate for the payment if living expenses for a beneficiary. The executor can, subject to the particular authority granted to the executor by the will, advance funds to a beneficiary, if appropriate.
Your facts are silent as to a petition for probate being filed or the appointment of an executor. At this point, you should consult with a local probate attorney to be sure that everything is handled correctly and to provide guidance to the executor.
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