Executor / Will Question

[tpkinsl]

The question- how do I know if a will is the final will, or if a subsequent will was written? The background- 30 years ago, a relative named me executor and gave me a copy of her will. She is now in poor health with dementia (so not able to clarify things). Her husband is an abusive SOB who lies about everything. When the time comes, what do I do with my copy of an old will? If there is a more current will, fine, I am not looking for a fight. There is probably no money at stake and most everything goes to her husband, but she does have some small bequests. But I don’t trust her husband at all, and if my will is valid, I would want to see it through as executor. This is in NY if that matters. So the question boils down to - is there a process (besides asking her lying husband) to determine the validity of a will after a person’s death.

 

[Time2]

I would wait until she dies and see if the husband produces a will. At some point after death I would ask him if he found a will. If he doesn't produce it, then present yours, he may then show he has an updated will, if he does.

 

[easysurfer]

I've always wondered about that very same situation. Say if there's a will and and and estate gets settled but only to later find there was a later will. Then what?

 

[Car-Guy]

I think a probate judge will ultimately decide. That's part of why there are formal filings, waiting periods, public announcements, etc. Of course that doesn't mean another will might surface years later. Not sure that happens very often. So you go with a judges decision.

 

[harllee]

Depends on the state but in most states the person who has possession a Will at death is required to take the Will to the clerk/judge of probate court for the county where the decedent lived and present it. Then the clerk/judge decides if the will is the final valid will and appoints the Executor.

 

[CRLLS]

Is there a difference in how it is treated if the will presented to the probate court is a "copy" of a signed Will? IOW does it need to have original signatures? Usually there is only a single "original" Will. It may be lost, or worse, destroyed by a unscrupulous relative.

 

[harllee]

Usually the original signed will has to be presented to the probate court. There are sometimes ways to use a copy if it can be proved the original was lost or destroyed but that is very unusual.

 

[gauss]

I had this problem with DMIL will. All the copies that we had were not originals, but photocopies.

I submitted them both in an attempt to open an informal probate , but the court officials responded that a formal petition to a judge would be required.

I later tried to repeat the informal process, but instead claimed that "no valid will will was left". The clerk asked if there were any will and I said "yes" but not the original. She said that we would need to include that in our petition and again that a formal process approved by a judge would be required.

In the end, the judge did issue the order to distribute to the heirs (which is what I requested) as opposed to attempting to probate the copy of the will.) This case was fairly simple in that the beneficiaries in the will were the same as the legal heirs with no will.

I suspect that if an original will to emerge at this late point in the game (ie 2 1/2 years after the death) , then it would be denied in that the duty to bring the will forward in a timely manner was not honored.

-gauss

 

[SecondCor521]

The question- how do I know if a will is the final will, or if a subsequent will was written?

[...]

When the time comes, what do I do with my copy of an old will?

[...]

So the question boils down to - is there a process (besides asking her lying husband) to determine the validity of a will after a person’s death.

You will not know if your version is the latest.

The most recent valid original will presented to the probate court wins.

Valid means the person was over 18, of sound mind, not under duress, and (usually) the will was properly witnessed (in my state, that's two signatures by people who are not in the will themselves), along with some other technicalities.

Original means the actual paper the person signed, with a "wet ink" signature.

Most recent means that the court will look at the dates of all valid wills and choose the most recently dated one.

It is the probate court that will determine, not her husband. Although he may choose to challenge your will's validity, or present a will that he purports to be later than yours. The probate court will sort out any competing or contradictory claims. My understanding is that these sorts of courtroom dramas are very, very rare.

Most wills have a clause at the beginning saying that this is the last one and revokes all prior wills and codicils.

If you are named executor in the copy of the will she gave to you, and you're willing to get involved to see her wishes fulfilled, I would try to find the original copy and present it to the probate court after she passes away. The original is often kept with the attorney who wrote the will for the individual, or in a safety deposit box. If you can't find the original, you could still present your copy to the probate court - perhaps your copy is the only one that can be found.

 

[CardsFan]

Is there a difference in how it is treated if the will presented to the probate court is a "copy" of a signed Will? IOW does it need to have original signatures? Usually there is only a single "original" Will. It may be lost, or worse, destroyed by a unscrupulous relative.

In our case we have two "originals" both signed by us and duly notarized.

Actually, there were 3, but the third was with the lawyer who is now deceased.

 

[Bamaman]

There are many times throughout one's lifetime that their wills need to be changed and/or upgraded. Seldom will a 30 year old will even be valid due to changes in people's lives.

That includes marriages, separations (without divorce), divorces, having children, children getting married, spouses dying, children dying, executor changes and it goes on and on.

In our case, we lost a daughter and needed her name to be stricken from our will. We have 3 other children that will receive unequal shares of our estate, and we needed to make our wishes clear.

I think about spouses and pending divorces. Spouses can be such a threat to a family's financial resources, and changes of wills need to be done by the spouse as appropriate to the situation. So often, an ex-spouse can be such a problem if there's a family business involved. My niece was made a stockholder of a family business' prior to a recent marriage to get it on record before they tied the knot. I hope that she had a prenup as she's half owner of a huge commercial building held in trust. She and the new husband will also need new wills as they each have college age kids to protect.

 

[youbet]

The question- how do I know if a will is the final will, or if a subsequent will was written? The background- 30 years ago, a relative named me executor and gave me a copy of her will. She is now in poor health with dementia (so not able to clarify things). Her husband is an abusive SOB who lies about everything. When the time comes, what do I do with my copy of an old will? If there is a more current will, fine, I am not looking for a fight. There is probably no money at stake and most everything goes to her husband, but she does have some small bequests. But I don’t trust her husband at all, and if my will is valid, I would want to see it through as executor. This is in NY if that matters. So the question boils down to - is there a process (besides asking her lying husband) to determine the validity of a will after a person’s death.

Do you have, or are you going to have, detailed knowledge of what assets the relative has (separate from their joint assets or her husband's assets) that will be available to fulfill the bequests in the will?

From what you say above, it sounds like the bequests are of small value and perhaps sentimental in nature. Are there any of them where you already suspect that the husband does not want them to happen? For example, maybe she brought some heirloom from her family to their home and now wants it to go back to her family but the husband objects and wants to keep it?

 

[gauss]

There are many times throughout one's lifetime that their wills need to be changed and/or upgraded. Seldom will a 30 year old will even be valid due to changes in people's lives.

That includes marriages, separations (without divorce), divorces, having children, children getting married, spouses dying, children dying, executor changes and it goes on and on. .....

I'm probably splitting hairs here, but I believe that a 30 year old will still can certainly be legally valid and the Probate court will act upon it --- even if does not reflect your current wishes.

I think your advice to keep the will current is good and thus this should be a non-issue.

-gauss

 

[tpkinsl]

Do you have, or are you going to have, detailed knowledge of what assets the relative has (separate from their joint assets or her husband's assets) that will be available to fulfill the bequests in the will?

From what you say above, it sounds like the bequests are of small value and perhaps sentimental in nature. Are there any of them where you already suspect that the husband does not want them to happen? For example, maybe she brought some heirloom from her family to their home and now wants it to go back to her family but the husband objects and wants to keep it?

Thanks for the response - you are correct, the bequests are mostly pieces of inexpensive jewelry and perhaps the remains of her savings - probably less (a lot less) than $5000. So this is not worth a fight (or an attorney). But if the will is valid, I will do my duty as the executor. Others have given me the best answer- when the time comes, I will give it to the probate court and let them sort it out, rather than me battle with her husband. Thanks everyone…

 

[pb4uski]

Thanks for the response - you are correct, the bequests are mostly pieces of inexpensive jewelry and perhaps the remains of her savings - probably less (a lot less) than $5000. So this is not worth a fight (or an attorney). But if the will is valid, I will do my duty as the executor. Others have given me the best answer- when the time comes, I will give it to the probate court and let them sort it out, rather than me battle with her husband. Thanks everyone…

Unless or until the SOB husband produces another will, I would assume that the one that I have is the one and only will. From what you wrote, it doesn't sound like you have any reason to believe that there is another will, just a suspicion.

If the husband produces another will then you might negotiate that if he fulfills the jewelry bequests in the will that you have that you will not contest the validity of the will that he produced... in other words, he can have everything if he gives you the jewelry so you can distribute the jewelry to the people that she wanted to end up with it.

Win-win... you get the satisfaction of knowing that the jewelry ended up where she wanted it and at the same time wash you hands of all the rest of it, including dealing with the SOB husband.

 

[tpkinsl]

I like it, thanks! To give you a sense of this guy, he gave her a phone in the nursing home which would only allow local calls - so she couldn’t call her sisters. Then tried to get the sisters banned from visiting. We got around all of this, but he keeps throwing up obstacles. A classic abuser - a real piece of work….

 

[pb4uski]

The reality is that if she only has $5k, there won't be much left after burial costs... sounds like it couldn't happen to a nicer guy.