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Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 102145
Experience:  Fully licensed attorney in Texas in private practice.
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My father passed away two weeks ago. His wife is saying he

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My father passed away two weeks ago. His wife is saying he had no will, but my brother and I are both certain he did because he often spoke about having one. His wife lives in North Carolina and will not return our calls. My brother and I both feel very uncomfortable being unaware of what is going on. What should I do?
Hello friend. My name is XXXXX XXXXX welcome to JustAnswer. Please note: (1) this is general information only, not legal advice, and, (2) there may be a slight delay between your follow ups and my replies.

I am very sorry for your loss and your situation. Can you please tell me:

1) Where did he live?
2) Do you know if his wife has filed probate, or not? Or, not sure?

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 3 years ago.

He lived in Murphy, North Carolina, which is in Cherokee County. His wife will not answer or return our calls so we are not sure what she has done thus far.

Thank you.

At this time, you may wish to retain local counsel in NC to file probate if his wife has not done so already, or, join yourselves to the probate if it already has been filed. Allow me to explain.

Why Probate
When someone passes away, then their estate has to be distributed. The problem is that without probate - with assets such as titled property or bank accounts - this is hard to do. This is because you cannot switch over the assets without an order from the probate court, and simply a Certificate of Death will not do. A Certificate of Death simply states that someone has passed on, but does not give you the right to really do anything in the deceased's name.

So one files probate. Once probate is filed, the Executor of the estate gets something called a Letter of Testament/Administration (hereinafter "Letter"). This Letter will allow the Executor to switch over the assets from the deceased individual to whoever will own the property. It is like a "Power of Attorney," but from the Court. Without that Letter, there is no way to transfer titled property and switch the assets into the beneficiaries' hands.

Will or No Will
If someone did not have a Will, then his estate would be distributed per default rules of succession - see here.

If he did have a will, then the Will controls the distribution.

If you feel that he did have a will, then the Court will "grill" her to ensure that he did or did not. If she lies and later on it is found that he did, she can be held in contempt and admonished, fined, and/or jailed. Most tend to tell the truth when faced with this matter. Also, other places like safe deposit boxes and other matters may be searched for the will.

If there is no will, the children stand to inherit by default (see link above). May I recommend the NC Bar referral program - here. The attorneys are vetted and qualified. You should be able to find an attorney you are confident with and whom you can trust, and who is available ASAP.

I hope this helps and clarifies. Good luck.

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