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Richard, Attorney
Category: Estate Law
Satisfied Customers: 55297
Experience:  29 years of experience practicing law, including tax and estate planning.
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I am told my fathers will and testament is in probate what

Customer Question

I am told my fathers will and testament is in probate what does that mean? I am the oldest in my family and I have yet to see his LWAT. He died August 2014.
Submitted: 1 year ago.
Category: Estate Law
Expert:  Richard replied 1 year ago.

Good morning. My name is ***** ***** I look forward to helping you.

Probate means that the will has been filed with the probate court in the county in which your father resided at the time of this death so that it can be validated as his true LWAT and the executor named therein officially appointed as executor. At that time, the court issues Letters Testamentary to the executor so that he/she has the authority to act on behalf of the estate to assemble your dad's probate assets, pay the creditors, and then distribute the remaining probate assets specifically according to the will. Once filed with the probate court, the LWAT becomes public record and you can call the court clerk and ask the clerk for instructions as to how to access a copy. But, you absolutely have rights here. The estate and its assets are not the executor's personal piggy bank simply because he/she is the executor. The executor has a fiduciary duty to each beneficiary. Each beneficiary is entitled to have the executor timely file the will for probate...usually within 30 days of death..., to timely administer the estate specifically pursuant to the terms of the will, to have the executor provide a copy of the full inventory of assets and periodic accounting of every dime in and out of the estate. Unless there is a particular situation complicating the administration, the administration of an estate would not take over 1 year to administrate and usually only 6-9 months. If the executor fails to produce the inventory, periodic accounting, or fails to timely administer the estate specifically in accordance to the will, you can file a petition with the probate court to have him/her removed as the executor for breach of fiduciary duty. And, if an accounting, which the court will order if the executor has not provided one, shows there to be any misappropriation of estate assets or funds, you can also ask the court to award actual and punitive damages against the executor. In your situation, I would put the executor on written notice by certified letter of the foregoing and let the executor know if he/she does not satisfy their fiduciary duty to you as a beneficiary in the administration of the estate, including keeping you informed of the progress, you will be filing the petition with the court to have him/her removed and be asking the court to order an audit of the estate.

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