The Moneyist: My elderly father refuses to use his oxygen tank — will our stepmother get all his money if he dies without a will?

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Dear Moneyist,

My dad is in his late 80s and in failing health. He shuts down any plan I or my siblings come up with to help with his health (like use the oxygen tank that his doctor prescribed) and I have accepted that he is probably not long for this world.

He refuses to write a will. There is not a large estate (maybe $40,000 in a couple investment accounts) and he co-owns an apartment with his wife/my stepmother. They’ve refinanced, so there’s still a mortgage.

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I’m hoping that his assets will, as he believes, all transfer seamlessly to his wife. He also has this idea that one of his accounts will be divided amongst his kids. I don’t want anything except for his wife to be comfortable, and most (not all) of my siblings agree.

The only end-of-life planning he will allow is that we need to throw a big party and have the funeral at his church. Whatever, Dad.

Considering the puny size of the estate, is this something I should just let go and concentrate solely on enjoying whatever time we have left? Or is this going to be a big problem for her when he does go? He’s not suffering from dementia or gravely ill, so we do have some time, although who knows how long.

Exasperated Daughter

Dear Daughter,

Your father’s intention to live out his last days with a combination of self-determination and cantankerousness is both admirable and, yes, frustrating. As he loses his health and feels his sense of independence slip away, he may be intent on holding onto the latter with an iron grip. Of course, not using his oxygen tank as prescribed by his doctor will have an adverse affect on both. It may be worth letting him know that the more he uses his tank, the more ability he will have to live by the rules he sets for himself. All of these things are connected. Self-will can only get you so far in life, whether you are in your late 80s or your early 20s. It takes gumption to ask for help.

Also see: My husband is leaving his personal savings …to his mother! What should I do?

If you die without a will (or intestate) and have children from a first marriage, your assets could be split between your surviving spouse and children from your previous marriage. It all depends on the law of the state. Writing a will today could save his wife the hassle of having to navigate probate over a prolonged period after he’s gone. My sense is your father will be less likely to do the sensible thing if he is told to do it. It may be better to tell your stepmother, so she can pass on the news to him as a suggestion rather than a direction. He can then make up his own mind over time.

In New York, for example, when a person dies intestate this process begins by determining who is in the family, according to Kerri Castellini, a lawyer with Price Benowitz in New York. “If there is a spouse and no children, the spouse receives 100% of the estate. If there is a spouse and children, the spouse receives $50,000, plus half of the balance of the estate. The children inherit everything else. If one of the children is deceased and they had children, those children take their deceased parent’s share. When there are just children and no spouse, the children share the estate equally.”

As for your father’s idea “that one of his accounts will be divided amongst his kids,” there’s a possibility he is referring to an IRA or transfer on death (TOD) account with his children listed as beneficiaries, said Jacksonville, Texas-based financial adviser Dick Stone.

Perhaps you or your stepmother could leave some documents lying around “accidentally on purpose” for your father to read. In the meantime, enjoy the time you have left with him and take heart that your father, despite his ailing health, wants to remain true to himself right up until the end.

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