Did you tell the attorney in North Carolina that the county clerk in New Mexico doesn’t record wills? They may not be familiar with how various states and counties do things. Perhaps a three-way conference call would help?
Tell the County Clerk you need a copy of the County stipulation that wills are not recorded. The copy needs to be on paper with the recorder’s letterhead, and then signed and dated by the County Clerk.
Then give the attorney a copy of the death certificate and a copy of the power of attorney from your sister.
~VOW
IANAL but I believe power of attorney terminates when the person dies. Having had power of attorney while she was alive is irrelevant at this point.
This is inaccurate. Payable upon death happens regardless of a will or an executor. The bank should only need the death certificate to fully transfer the account to you. That’s the whole point of “payable on death” or survivor beneficiaries, is that they don’t require probate to transfer.
This sounds like an insane situation (not that I doubt you.) What does the NC atty propose to do? They say they have to send it to the NM clerk. Well, have they done so? If not, why not? Maybe cc: it to the NC Bar Association, asking for an explanation of why this atty’s intransigence is causing you unnecessary difficulty in these stressful times.
And your local estate lawyer says he cannot advise? Really? Sounds like you ought to look for a better local lawyer.
And the NM clerk says they don’t record wills, but what do they do when an atty from out of state sends them a will? Toss it out? Return it? Stick it in a drawer?
At the very least, I’d send letters to both the NM clerk and NC atty explaining the situation as you understand it, and asking how they propose to move forward.
Bottomline, it is fortunate that the estate is so small. At worst, you are out the $1900 you already spent, and the remaining $8k just gets slowly pissed away.
But as folk have observed, this sound like a crazy situation, which really ought not be challenging for the parties to resolve.
In general, how much is a law firm involved with saving and releasing wills? I’ve had to deal with this situation a couple of times in the past, and the two law firms weren’t really helpful. They treated the wills like normal paperwork they had for a client. They didn’t do anything special with them. One law firm didn’t save the will, another law firm sent the will to archives and we didn’t bother with trying to get it from there. When I had my will done through my employee legal benefits, they had me sign something which said they didn’t save the will. So is saving the will for the person something that is typical with law firms? Or is it a special service?
I dunno what’s usual, but when my mom died, her lawyer sent us all copies of her will.
(We ended up paying them something like $8000 for not a lot of not-always-great advice. But they were an overpriced law firm, and they knew the estate was worth their fees.)
I don’t do wills and estates, but I’ve heard from colleagues that it is a special service, because of the liability issue. I read one article by a W&E lawyer about how he had to buy a special fire-proof heavy duty filing cabinet to meet law society rules for preserving wills. His secretary called it his Iron Maiden. When the firm moved offices, he discovered how much he would be billed for the moving fees for the Maiden, and decided to call all his clients to come get their wills. He would no longer act as a safe deposit box. That’s what banks and the court house are for. (Although apparently banks are cutting back on safe deposit boxes as well.)
When my Mom passed, I spoke with our family attorney who had advised on my parents’ trust. His office filed the will in the county in which Mom died. That’s all he did, and that’s all he needed to do.
Can I ask a stupid question?
Why wouldn’t you make sure all possible executors have a copy of your will?
One reason would be if you didn’t want the contents of the will known until after you died.
In Illinois, any perso who is in possession of a presumptively valid willis required to file it within 30 days. Pretty sure a lawyer who fails to do so is subject to potential sanctions. I do not do stiffs and gifts, but my understanding is that is is standard practice for lawyers to keep copies of wills they prepare. Might be different if you have no ongoing relationship with the atty other than to prepare the will.
(This is largely based on my recollection from a couple of years ago when my FIL died and my wife - a lawyer, learned that another lawyer had prepared and had copies of the FIL’s will. Atty gave the docs to my wife - requiring that she sign a receipt, and wife filed it with the clerk. Never got probated.)
Not a stupid question at all. OP makes it sound like the deceased did not even keep a copy herself. We’ve given copies to all of our kids.
The NM clerk’s position sure seems odd to me. I wonder what other documents they decline to accept? If you don’t file it with the clerk, who DO you file it with?
Again, not my area of expertise - tho I have been “near” estates many a time.
Based on this, it might be worth asking the NC law firm if they are acting as official custodians of the will or not.
One problem I see with having the law firm keep the will is that the heirs may have no idea which law firm to contact. As we often see, some people don’t keep a copy of the will, don’t mention to the heirs that they have a will, don’t notify executors that they were named in the will, etc. It seems like at best, the copy at the law firm would be used to verify the will that the decedent kept at home. But if there’s not a will at home for the relatives to find, then they probably won’t know which law firm to contact. It seems like the law firm would need to be proactive about monitoring death notices in order to make sure that the will ended up with the executor. I suppose the situation is different if the family has specific lawyer that they all use. But I suspect for most people, they go to a random law firm for a one-time service of creating a will.
Fyi, a safe deposit box is a terrible place to store the will, because that’s a really hard place to access once the owner is dead.
A few copies is a better way to “secure” it than locking it away. Leave one in your desk (and tell the executor/kids it’s there.) Leave a few others with people you trust, could be your lawyer, your executor, or a neighbor who will notice if you die. But make sure the will will be accessible to the people who need it.
This sounds dodgy as hell to me. I’d keep a close eye on that lawyer.
Here’s the public document lookup for Bernalillo County:
https://eagleweb.bernco.gov/recorder/eagleweb/docSearch.jsp
They have a list of document types for the lookup. I didn’t see anything like “Will” or “Last Will and Testament”
The will will get filed along with probate, but it looks like the county recorder doesn’t take it.
Perhaps the NC law firm really meant to say that it needs to be filed with the probate court rather than the county recorder. I could see that being the case. The NC law firm sends the will to probate court, you petition to be executor, the probate judge verifies you are the named executor in the will and then declares you the executor. You wouldn’t get to see the will until the probate judge made you the executor (this is all just my guess).
With an estate valued around $8,000 and a number of outstanding bills, combined with the potential for some legal fees, is it even worth it? I mean, they can’t MAKE you be the executor. What if you just said “I’m out?”
Not according to her bank. They have emailed me with the requirements. Their rules.
In this case the attorneys had the original, and my sister did not have a copy. Bad planning on her part, she was always a bit flaky anyhow, I’m just left to deal with it.
Fortunately in this case I did know who to contact, because the law firms name was on the POAs and her deceased husband’s will. Not that it’s done me a whole lot of good so far. And contacted the county clerk’s office again today, had to leave a voicemail, never got a call back. Starting to get a wee bit ruffled.