Opinion on Will / Estate issue?

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AussieDad
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Opinion on Will / Estate issue?

Post by AussieDad » Sun Sep 08, 2019 7:29 pm

First off, there is probably not enough money involved here for a legal fight. My wife's cousin ( no kids) in Alabama passed away recently. My wife had spoken to her previously and her cousin relayed that her health was poor and she wanted my wife and my wife's sister to have something when she passed. She specifically told my wife she would get some money when the house sold. I have not gotten a copy of the will from the executor (who is not named in the will), but it is worded along the lines that My wife, my wife's sister, another cousin and 2 friends will split all her tangible property. The house is not listed separately. Her will also specifically states that her Brother (only surviving heir) is to get nothing (apparently they had a serious falling out years ago).

The executor is now saying the lawyer made a mistake drawing up the will and the Brother (who it was specifically stated in the will to get nothing) is entitled to the house under inheritance laws. The executor has consulted with 2 attorneys.

This is obviously not my Wife's cousin's final wishes.

I don't think this is worth fighting, because the house is probably worth 70k at best, and that would be divided 5 ways. Just curious for some opinions on this matter.

Thanks

tibbitts
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Re: Opinion on Will / Estate issue?

Post by tibbitts » Sun Sep 08, 2019 7:32 pm

AussieDad wrote:
Sun Sep 08, 2019 7:29 pm
First off, there is probably not enough money involved here for a legal fight. My wife's cousin ( no kids) in Alabama passed away recently. My wife had spoken to her previously and her cousin relayed that her health was poor and she wanted my wife and my wife's sister to have something when she passed. She specifically told my wife she would get some money when the house sold. I have not gotten a copy of the will from the executor (who is not named in the will), but it is worded along the lines that My wife, my wife's sister, another cousin and 2 friends will split all her tangible property. The house is not listed separately. Her will also specifically states that her Brother (only surviving heir) is to get nothing (apparently they had a serious falling out years ago).

The executor is now saying the lawyer made a mistake drawing up the will and the Brother (who it was specifically stated in the will to get nothing) is entitled to the house under inheritance laws. The executor has consulted with 2 attorneys.

This is obviously not my Wife's cousin's final wishes.

I don't think this is worth fighting, because the house is probably worth 70k at best, and that would be divided 5 ways. Just curious for some opinions on this matter.

Thanks
I don't understand any point in speculating without a copy of the will. I don't know what the law is regarding who has access to the will when.

I think the main point (still open to dispute) is "the lawyer made a mistake", which you would think would't happen given this seemingly simple estate.

HomeStretch
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Re: Opinion on Will / Estate issue?

Post by HomeStretch » Sun Sep 08, 2019 7:37 pm

You may receive the best answer by taking a copy of the will to an estate attorney with experience in Alabama.

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Re: Opinion on Will / Estate issue?

Post by Sandtrap » Sun Sep 08, 2019 7:46 pm

Copy of will and all documents and correspondence to legal counsel.
Then proceed.
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AussieDad
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Re: Opinion on Will / Estate issue?

Post by AussieDad » Sun Sep 08, 2019 8:20 pm

Thanks for the replies. I realize it's hard to speculate without seeing the will. The executor read the will to my Wife and she asked for a copy but has not received it yet. The brother is saying he can take possession of the house in 30 days. I guess I'm confused why the house would not be considered part of tangible property.

tibbitts
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Re: Opinion on Will / Estate issue?

Post by tibbitts » Sun Sep 08, 2019 8:44 pm

So have we established that the OP is entitled to a copy of the will before the estate is settled and the document becomes public record?

bsteiner
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Re: Opinion on Will / Estate issue?

Post by bsteiner » Sun Sep 08, 2019 10:21 pm

AussieDad wrote:
Sun Sep 08, 2019 8:20 pm
Thanks for the replies. I realize it's hard to speculate without seeing the will. The executor read the will to my Wife and she asked for a copy but has not received it yet. The brother is saying he can take possession of the house in 30 days. I guess I'm confused why the house would not be considered part of tangible property.
As soon as the named executor files the Will with the court it will become a public document.

Property is either real property or personal property. Personal property is either tangible (something you can touch like a table or chair or earring) or intangible (something you can't touch like a stock or bond).

So real estate isn't tangible property.

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AussieDad
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Re: Opinion on Will / Estate issue?

Post by AussieDad » Sun Sep 08, 2019 10:38 pm

:!:
bsteiner wrote:
Sun Sep 08, 2019 10:21 pm
AussieDad wrote:
Sun Sep 08, 2019 8:20 pm
Thanks for the replies. I realize it's hard to speculate without seeing the will. The executor read the will to my Wife and she asked for a copy but has not received it yet. The brother is saying he can take possession of the house in 30 days. I guess I'm confused why the house would not be considered part of tangible property.
As soon as the named executor files the Will with the court it will become a public document.

Property is either real property or personal property. Personal property is either tangible (something you can touch like a table or chair or earring) or intangible (something you can't touch like a stock or bond).

So real estate isn't tangible property.
That was my biggest question, and probably the one I should have asked. According to Wikipedia, tangible property can be both real property and personal property.

https://en.wikipedia.org/wiki/Tangible_property

tibbitts
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Re: Opinion on Will / Estate issue?

Post by tibbitts » Sun Sep 08, 2019 10:53 pm

AussieDad wrote:
Sun Sep 08, 2019 10:38 pm
:!:
bsteiner wrote:
Sun Sep 08, 2019 10:21 pm
AussieDad wrote:
Sun Sep 08, 2019 8:20 pm
Thanks for the replies. I realize it's hard to speculate without seeing the will. The executor read the will to my Wife and she asked for a copy but has not received it yet. The brother is saying he can take possession of the house in 30 days. I guess I'm confused why the house would not be considered part of tangible property.
As soon as the named executor files the Will with the court it will become a public document.

Property is either real property or personal property. Personal property is either tangible (something you can touch like a table or chair or earring) or intangible (something you can't touch like a stock or bond).

So real estate isn't tangible property.
That was my biggest question, and probably the one I should have asked. According to Wikipedia, tangible property can be both real property and personal property.

https://en.wikipedia.org/wiki/Tangible_property
I'm not an expert but bsteiner is, and every (other) definition seems to agree with him.

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AussieDad
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Re: Opinion on Will / Estate issue?

Post by AussieDad » Sun Sep 08, 2019 11:41 pm

tibbitts wrote:
Sun Sep 08, 2019 10:53 pm
AussieDad wrote:
Sun Sep 08, 2019 10:38 pm
:!:
bsteiner wrote:
Sun Sep 08, 2019 10:21 pm
AussieDad wrote:
Sun Sep 08, 2019 8:20 pm
Thanks for the replies. I realize it's hard to speculate without seeing the will. The executor read the will to my Wife and she asked for a copy but has not received it yet. The brother is saying he can take possession of the house in 30 days. I guess I'm confused why the house would not be considered part of tangible property.
As soon as the named executor files the Will with the court it will become a public document.

Property is either real property or personal property. Personal property is either tangible (something you can touch like a table or chair or earring) or intangible (something you can't touch like a stock or bond).

So real estate isn't tangible property.
That was my biggest question, and probably the one I should have asked. According to Wikipedia, tangible property can be both real property and personal property.

https://en.wikipedia.org/wiki/Tangible_property
I'm not an expert but bsteiner is, and every (other) definition seems to agree with him.
From reading his profile, I would have to agree.

not4me
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Re: Opinion on Will / Estate issue?

Post by not4me » Mon Sep 09, 2019 2:33 pm

From a financial point of view, I would agree it likely isn't worth a legal fight based on what you've said...If house is worth $70k, it won't net that much.

However, if it were me, I'd want a better understanding of what has really happened; I wouldn't want to take the chance your wife may later regret not "fighting" for her cousin. How do the other 4 named feel -- are any of them contesting this? Will others in the family expect someone to do more for the wishes of the deceased (that is, will lack of interest cause family strife)? The story isn't clicking with me. I get that lawyers make mistakes & perhaps it is that simple; shouldn't take much to validate that. But, there are several details you didn't share -- perhaps you felt unimportant or didn't want to divulge. Who initiated the probate proceedings? Is the will produced "legitimate"? Apparently court thinks so...yet an executor wasn't named? Was there a clause saying who gets assets that weren't specifically bequeathed? Was the will declared invalid & brother getting it all as a result?

Your wife may just want to move on -- family dynamics may outweigh finances here. Good luck

BillWalters
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Re: Opinion on Will / Estate issue?

Post by BillWalters » Mon Sep 09, 2019 2:45 pm

Generally speaking, verbal claims of intent have zero weight. I would read the will and go from there. My intuition tells me the attorney is scheming for fees.

deikel
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Re: Opinion on Will / Estate issue?

Post by deikel » Mon Sep 09, 2019 3:46 pm

who is the executor and what is his/her relationship to the brother if any ?

Make sure you get to the house to get the personal property before the brother had a chance to set foot into it

Lawyer opinion would cost little and (if it makes sense) a testy letter written by a lawyer also costs little (think less then 1k) - so 70k split four ways for a possible 1k split 4 ways to be on the safe side....I would certainly ask a lawyer to get a copy of the will, make sure the executor stays on the straight and narrow and tell you exactly what is and is not possible
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CAsage
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Re: Opinion on Will / Estate issue?

Post by CAsage » Mon Sep 09, 2019 4:35 pm

If there is a problem with the will not being valid, it might fall to the brother under intestate laws (i.e. he's next in the absence of parents or children). But I would think there is still some delay in probating the will, and he can't just move in? Just guessing here. This was your best advice:
HomeStretch wrote:
Sun Sep 08, 2019 7:37 pm
You may receive the best answer by taking a copy of the will to an estate attorney with experience in Alabama.
Salvia Clevelandii "Winifred Gilman" my favorite. YMMV; not a professional advisor.

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AussieDad
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Re: Opinion on Will / Estate issue?

Post by AussieDad » Tue Sep 10, 2019 3:39 am

not4me wrote:
Mon Sep 09, 2019 2:33 pm
From a financial point of view, I would agree it likely isn't worth a legal fight based on what you've said...If house is worth $70k, it won't net that much.

However, if it were me, I'd want a better understanding of what has really happened; I wouldn't want to take the chance your wife may later regret not "fighting" for her cousin. How do the other 4 named feel -- are any of them contesting this? Will others in the family expect someone to do more for the wishes of the deceased (that is, will lack of interest cause family strife)? The story isn't clicking with me. I get that lawyers make mistakes & perhaps it is that simple; shouldn't take much to validate that. But, there are several details you didn't share -- perhaps you felt unimportant or didn't want to divulge. Who initiated the probate proceedings? Is the will produced "legitimate"? Apparently court thinks so...yet an executor wasn't named? Was there a clause saying who gets assets that weren't specifically bequeathed? Was the will declared invalid & brother getting it all as a result?

Your wife may just want to move on -- family dynamics may outweigh finances here. Good luck
I didn't want to get too specific. I did finally get a copy of the will.

Basically there are four paragraphs and it is fairly short. This is the abbreviated version, except paragraph 3

First, all debts to be paid

Second, all tangible property apparel, jewelry, books, pictures, furniture, etc. divided among the named heirs (5)

Third, I am intentionally excluding from my will, my brother, ..... .....

Fourth, appoints executor

No mention of real property

I don't think there's going to be a probate if we don't fight for it. I thought it legally had to be, but I don’t think the executor plans to probate

The reason I think the attorney messed up, is because he had to know her intent and didn't make sure the will followed that intent.

I would have thought the third paragraph would have taken care of the brother not getting the house, but apparently it didn't.

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celia
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Re: Opinion on Will / Estate issue?

Post by celia » Tue Sep 10, 2019 5:43 am

AussieDad wrote:
Tue Sep 10, 2019 3:39 am
The reason I think the attorney messed up, is because he had to know her intent and didn't make sure the will followed that intent.
How do you know this was prepared by an attorney? Is the lawyer/firm identified in the page footer? Was it signed and notarized right before death?

It seems it is possible the deceased created it herself.

johnnyc321
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Re: Opinion on Will / Estate issue?

Post by johnnyc321 » Tue Sep 10, 2019 6:09 am

If it truly was a drafting mistake, you may have a malpractice claim against that lawyer.

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8foot7
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Re: Opinion on Will / Estate issue?

Post by 8foot7 » Tue Sep 10, 2019 6:52 am

johnnyc321 wrote:
Tue Sep 10, 2019 6:09 am
If it truly was a drafting mistake, you may have a malpractice claim against that lawyer.
This. If the deceased intentionally excluded her brother from the will and clearly expressed those intentions, but the lawyer wrote the will so stupidly that the brother will end up with actually the most valuable possession of the whole estate, then that’s malpractice by any reasonable definition.

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AussieDad
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Re: Opinion on Will / Estate issue?

Post by AussieDad » Tue Sep 10, 2019 6:59 am

celia wrote:
Tue Sep 10, 2019 5:43 am
AussieDad wrote:
Tue Sep 10, 2019 3:39 am
The reason I think the attorney messed up, is because he had to know her intent and didn't make sure the will followed that intent.
How do you know this was prepared by an attorney? Is the lawyer/firm identified in the page footer? Was it signed and notarized right before death?

It seems it is possible the deceased created it herself.
It was prepared by an attorney. The attorney is actually one of the witnesses.

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RickBoglehead
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Re: Opinion on Will / Estate issue?

Post by RickBoglehead » Tue Sep 10, 2019 7:04 am

Seems pretty clear that if any of the heirs wishes to have a chance at recovering the homestead, they need to take the will to an estate attorney and learn their options in Alabama. Polling people on a forum isn't going to resolve this issue.
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AussieDad
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Re: Opinion on Will / Estate issue?

Post by AussieDad » Tue Sep 10, 2019 7:41 am

RickBoglehead wrote:
Tue Sep 10, 2019 7:04 am
Seems pretty clear that if any of the heirs wishes to have a chance at recovering the homestead, they need to take the will to an estate attorney and learn their options in Alabama. Polling people on a forum isn't going to resolve this issue.
I see your point, but I was trying to get some opinions to see if it was worth even consulting an attorney. I’d say right now there’s about a .001 percent chance that we will pursue this any further. We don’t need the money by any means. I think my Wife and I are just stunned that this is going exactly opposite from what her Cousin wanted. Who knows, maybe someone will read this and realize they need to take a good look at their Will.

senex
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Re: Opinion on Will / Estate issue?

Post by senex » Tue Sep 10, 2019 7:50 am

AussieDad wrote:
Tue Sep 10, 2019 3:39 am
No mention of real property

I don't think there's going to be a probate if we don't fight for it. I thought it legally had to be, but I don’t think the executor plans to probate
How would the brother get the house without probate?
One of the main purposes of probate is to re-title assets that do not have an automatic method of retitling.
I don't see how he could acquire title to the house without probate.

If the house was titled jointly with the brother, or if the deceased signed papers long ago to transfer the house upon death to the brother (there are various ways of doing this, including transfer on death titling in some states; she may have done this long ago and forgotten to revoke it), then he could get title. I don't see how he could get title otherwise.

You definitely need an Alabama attorney (not the attorney who drafted the will), especially if you suspect underhanded dealings by the executor. He could advise you if an official letter to the executor would be appropriate.

This may be a difficult fight to wage remotely and may exhaust most of the proceeds by paying legal fees (there's an old saying that in a legal battle, everyone loses except the lawyers). At this point keep a written record of every call (time, person, topics discussion) and send all mail certified, keeping a copy of what you sent and printing the delivery confirmation. You may need a paper trail to maximize your recovery.

Best wishes.

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Re: Opinion on Will / Estate issue?

Post by NotWhoYouThink » Tue Sep 10, 2019 7:56 am

It sounds like the executor is claiming that the house is not part of the probate estate, maybe because of the way it is titled? I'm not sure why else the house would go directly to the brother or why the will would be defective. I'd probably take it to my own attorney just to make sure the executor is not blowing smoke. And then it might be possible to petition the probate court to name a different executor.

But this confirms my overall impression that most estate plans are ignored or bungled. There are comprehensive rules for handling things, and little enforcement for any of those rules.

senex
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Re: Opinion on Will / Estate issue?

Post by senex » Tue Sep 10, 2019 8:23 am

AussieDad wrote:
Tue Sep 10, 2019 7:41 am
I see your point, but I was trying to get some opinions to see if it was worth even consulting an attorney.
Dollar-wise, it seems the answer is no. Best case gross you said is about $14k, from which you subtract attorney fees, broker costs, other real estate fees, executor fees, court fees, etc. Maybe you would get a few k net? And you've said you don't need the money.

Social-wise, it depends on how strongly you feel it's your duty to promote/defend the deceased's verbal statements to your wife.

It sounds like either the titling allows the brother to get title without probate (in which case you're stuck; probate only covers assets that haven't conveyed via other means; a will doesn't "undo" legit transfers that occurred outside the will) or that the will is expected to be found invalid (in which case state intestacy laws will control, which I suppose would favor a brother over more distant relatives). This is my layman's understanding -- not an attorney.
AussieDad wrote:
Tue Sep 10, 2019 7:41 am
Who knows, maybe someone will read this and realize they need to take a good look at their Will.
Yes, thank you for posting. These kind of threads are useful, especially the replies with more color commentary than "go talk to an attorney."

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Re: Opinion on Will / Estate issue?

Post by Swimmer » Tue Sep 10, 2019 8:25 am

NotWhoYouThink wrote:
Tue Sep 10, 2019 7:56 am
It sounds like the executor is claiming that the house is not part of the probate estate, maybe because of the way it is titled? I'm not sure why else the house would go directly to the brother or why the will would be defective. I'd probably take it to my own attorney just to make sure the executor is not blowing smoke. And then it might be possible to petition the probate court to name a different executor.

But this confirms my overall impression that most estate plans are ignored or bungled. There are comprehensive rules for handling things, and little enforcement for any of those rules.

Don’t know about Alabama but in Florida real estate titles are public information. I think you should be able to confirm legal ownership online or even by phone without engaging an attorney through the county property appraiser’s or tax collector’s Office. Then, if brother is TOD, JT, etc, you’d be in a position to make a decision as to whether to pursue legal action.

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Re: Opinion on Will / Estate issue?

Post by bsteiner » Tue Sep 10, 2019 9:05 am

AussieDad wrote:
Tue Sep 10, 2019 3:39 am
...
Basically there are four paragraphs and it is fairly short. This is the abbreviated version, except paragraph 3

First, all debts to be paid

Second, all tangible property apparel, jewelry, books, pictures, furniture, etc. divided among the named heirs (5)

Third, I am intentionally excluding from my will, my brother, ..... .....

Fourth, appoints executor

No mention of real property

I don't think there's going to be a probate if we don't fight for it. I thought it legally had to be, but I don’t think the executor plans to probate

The reason I think the attorney messed up, is because he had to know her intent and didn't make sure the will followed that intent.

I would have thought the third paragraph would have taken care of the brother not getting the house, but apparently it didn't.
This is helpful. You have to read the Will as a whole to determine what the testator intended.

If that's all the Will says, then all it does is dispose of the tangibles, disinherit the brother, and name an executor.

While there's a preference for a construction that avoids intestacy, it looks like everything other than the tangibles passes by intestacy (as if the brother were not living).

So the house passes to the intestate takers as if the brother were not living. Who are the closest relatives (excluding the brother)?

You'll have to probate the Will. Absent the Will, the brother, if he's the closest relative, will get everything other than the tangibles.

The assets other than the real property (if any) will be subject to administration, so if there are any such assets, the executor will deal with them and distribute the balance of the estate to the intestate takers other than the brother.

We have a similar case pending now.
Last edited by bsteiner on Tue Sep 10, 2019 9:33 am, edited 1 time in total.

SouthernFIRE
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Re: Opinion on Will / Estate issue?

Post by SouthernFIRE » Tue Sep 10, 2019 9:12 am

In almost 100% of cases, the Will includes a provision specifying who receives the "residue," i.e. all property that is not specifically identified in the Will. If this one does not, as appears to be the case from your summary, well, that makes it a uniquely poorly drafted Will. Your instinct that it is not worth fighting over 1/5th of $70k is correct, as others have noted.

PhilosophyAndrew
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Re: Opinion on Will / Estate issue?

Post by PhilosophyAndrew » Tue Sep 10, 2019 9:35 am

OP, I agree with your initial judgment that this is not worth fighting. In the end, the oral statement is trumped by the will, and fighting the will would only add stress to what is already a fraught situation.

Sometimes turning the other cheek and forgiving the trespasser constitutes a form of self-care.

I’m sorry for your family’s loss and I wish you all the best.

Andy.

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Re: Opinion on Will / Estate issue?

Post by not4me » Tue Sep 10, 2019 1:33 pm

by AussieDad » Sun Sep 08, 2019 7:29 pm

I have not gotten a copy of the will from the executor (who is not named in the will),
bsteiner wrote:
Tue Sep 10, 2019 9:05 am
AussieDad wrote:
Tue Sep 10, 2019 3:39 am

Fourth, appoints executor

You'll have to probate the Will. Absent the Will, the brother, if he's the closest relative, will get everything other than the tangibles.


This may be a bit off topic & certainly not asking for legal advice. In the initial post before a copy of the will was obtained, there was indication the executor was not named in the will. Later, it wasn't specific as to whether the executor (or I assume personal representative if that is what Alabama has) was specifically named. But regardless, is the executor really the executor absent probating the will? Said another, even if the will specified the person "currently serving", would they have legal authority if not probated yet? Perhaps a semantics difference if there is a provision for small estates?

OP, I do think you did a service for future readers & hope it works out for the best

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CAsage
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Re: Opinion on Will / Estate issue?

Post by CAsage » Tue Sep 10, 2019 2:51 pm

Were there no cash accounts that would need to be probated ... say in order to pay the bills at least? How will the bills be paid? I guess you don't need probate to divide up the household and personal goods .... If it were my cousin, I'd push a bit just to uphold her wishes, even if you still got nothing out of it. How does the executor pay off the bills? Seems a bit loose.
Salvia Clevelandii "Winifred Gilman" my favorite. YMMV; not a professional advisor.

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