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LegalGems
LegalGems, Attorney
Category: Estate Law
Satisfied Customers: 7642
Experience:  Private Practice; Elder Law Attorney; Estate Planning; Attorney Mentor
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My Uncle passed away in December of 2010 with a rather large

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My Uncle passed away in December of 2010 with a rather large estate. His first wife and only son both predeceased him. His second wife claimed she was name executor of his estate in his will and that my uncle left everything to her, but wanted it to pass on to his remaining family upon her passing. She never filed the will with the probate court and made it difficult for my aunt to view the will. She has now passed on and her daughter has asked the court to apppoint her as representative of her estate. We understand she died without a will. Does my family have the right to petition the court to re open my Uncle's estate under these circumstances?

LegalGems :

Hi; My goal is to provide you with great service - if you have any questions during our chat, please ask! I'll do my best to ensure your satisfaction! Generally, once an estate is probated, it is final and binding on all heirs and interested parties that received notice of the proceeding. However, if fraud is suspected, a party can petition the court to re-open the case and review the distribution, to ensure that it was done according to the terms of the will or to intestate law. You mention that there was a will in which everything was left to his surviving spouse but with the condition that the remaining assets, on her passing, go to his blood relatives. It would be important to get a copy of this will in order to prove that this was his intent - that he only intended for her to have what is referred to as a Life Estate, or to hold it in trust for his blood relatives. If this is the case, then generally the court will re-open the probate, and order the property be returned so it can go to its rightful heir(s). If the surviving spouse did not have full ownership of the property, the property would not pass via intestate succession to her heirs.

Customer:

As she never did file my uncle's will with probate court....what would be the best way to find a copy of his will?

LegalGems :

If you know what lawyer he used, there may be a copy on file - or the attorney can sign an affidavit/declaration that s/he in fact prepared a will for the uncle and as far as s/he knows, it was not revoked. Otherwise, you would need to file a suit to reopen the probate and if the judge grants it, they will order the estate to produce it. It's tough because the burden is on the person trying to prove the existence of the will, but that person obviously does not have easy access to the will. So any evidence you have that there is a will would be helpful.

Customer:

My Aunt has email correspondence from my Uncle's second wife which states she did not file the will with probate and what my uncle's intent was in regards XXXXX XXXXX for his family upon her death. Is this something the court would consider?

LegalGems :

That is exactly the type of evidence that will generally at least get the court to re-open the probate. I would suggest you hire an attorney as soon as possible as these types of cases are highly contentious and should not be done as a "pro per" (self-representation).

Customer:

Thanks for your advice. What you have told me confirms what I thought to be true.

LegalGems :

You are welcome. Good luck with all this. Aside from the money issue, it is just wrong when someone who is trusted does not comply with the wishes of the deceased; even worse if they actively hide the will to circumvent their wishes.

Customer:

Agree with that....and thanks again.

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