No, I don’t need answer fast - this is curiosity based on mental meanderings. My FIL died in January, my husband is the executor, and there was never any “reading of the will” or really anything beyond him helping his mother to wade thru the documentation and changing various accounts to remove his father’s name. My husband has had powers of attorney for his parents for years and he knows their final wishes. He’s already set things up for his brothers once their mother dies. Nothing hinky to see here.
But what if that had not been the case? Let’s get hypothetical here.
Joe Jones, widower, has a will leaving half his estate to his favorite charity and the other half to his only child. Said child is the executor, has powers of attorney, and is joint on all of Joe’s accounts.No one but Joe, Child,and the attorney who prepared the will has any idea that a will even exists.
Upon Joe’s death, greedy offspring decides to keep everything - what the charity doesn’t know won’t hurt them, right? Could that happen? I know there are different laws in different areas when someone dies intestate - here in Merrylande, everything would be divided among Joe’s next of kin, which is just the one child. Assuming the lawyer who prepared the will didn’t know Joe had died, would there be any reason to do a search for a will, if such a thing is done? Our wills have been registered with the Clerk of the Court in our county, but does that mean anything unless someone wanted to contest it?
I hope I’m not asking obviously stupid questions - law confuses me more often than not.
Until the real lawyers among us step forward, I can say that anyone named in a Will is present for the reading of the Will. It is a legal document. Of course, “greedy offspring” can contest the Will in court if he wishes to do so, but he just can’t hide its existence.
At least here in IL, any licensed atty who has knowledge of a presumptively valid will is required to file it. We experienced this exact situation 1 year ago w/ my FIL. But the obligation stops there. There is no obligation for the lawyer to open a probate action.
In our case, my wife got nothing from the will. Stepmother has not initiated probate. We know of at least 2 parties - 1 relative and one college - whom we suspect were not given their distribution. So yeah, the stepmother is essentially hiding the existence of a will which has been filed.
I don’t know how the law works where you are, but where I am (England) if the deceased person owns assets which are not held jointly, ie by their spouse, then the executor can’t process the finances until they apply for probate when, I’m guessing, the officially-filed will comes to light. I’ve no idea what happens if the deceased did a hastily written will which only the executor or relative knows about. I presume you get to hide it if you want to, but then probate will mean the assets get divided equally between the next of kin.
It’s something that has been on my mind since my Mum died. We don’t need probate to process her will as all her assets are jointly held with my Dad, but when he dies, we will have to go through probate, which can apparently take months.
Do you find it odd she’s not opened probate? Could be she’s waiting on a statute of limitations to expire that will make null and void any claims against the estate?
Kinda guessing here based on recent experience in Fl.
Probate may not be opened yet but one can still file a claim with the court against the estate. Once probate is opened that claim will be part of probate if it was filed before the expiration of any statute of limitations.
I think the typical situation is that nobody is present for the Reading of the Will. That’s just a dramatic device used in fiction. If the executor can notify everyone named in the will about where and when the Reading will be, then they can just notify them directly about what they’re getting, with a lot less fuss required than gathering everyone together in one room at the same time.
No. She, and FIL, are/were tremendous liars and very unethical in their legal and other dealings. I think she is just accustomed to doing things however she wants - damn the law. And just dealing with it should anyone find out and sue. This will was from the 70s, before FIL and my wife’s mom (since dead) were divorced. Just to let you know how fucked up the situation is, FIL was a bigamist. My wife (and 1 sister) were effectively disinherited in an addendum to this will, so she has no dog in the fight. I presume most of the personal property of value has been squirreled away, and presume the real property and cash/investments were jointly titled. But, we don’t really know and don’t really care.
My wife’s other sister (the one who was not disinherited) hired a lawyer to look into it. We are staying out of that.
Since we have seen the will, we’ve debated whether to tell the one relative and FIL’s alma mater that they are owed $, but as of yet, have decided not to. Sure, it might be the “right” thing to do. But the most likely result would be a refreshing of ugliness from wife #2 and her kids.
The will is (at least in IL) filed w/ the Clerk of Court. Anyone who wants to read it can. An executor ought to notify interested parties, but no formal group “reading”.
One of the things relatives often are tasked with doing after someone dies is trying to find the will.The will doesn’t have to be filed somewhere official after it’s written. Some states allow you to file it with the county public records, but that’s optional. If the family knows which lawyer they used, the lawyer will typically have a copy. But if they can’t locate the will or who prepared it, then it’s like it doesn’t exist.
If the will physically exists at the time of death, it is filed with the documents required to begin probate. The heirs and interested parties can view the will and verify that the executor is following the wishes conveyed in the will.
To be appointed as the executor, you need to be appointed by the court. There are rules about who gets to be the executor. It’s not just first-come-first-serve. In absence of will, the court has a hierarchy of who gets to be executor, such as spouse, parent, oldest child, etc. If the other interested parties objected, they could petition the court to have someone else as executor. The judge would hear their arguments and possibly choose someone else.
In practical terms, what would happen if someone who knows of a will doesn’t open a probate case or otherwise execute the will?
And
Is it legal?
For 1, lots of times things are set up so that probate is not necessary. If one spouse leaves everything to the other, and they held joint title to everything, then nothing has to be probated. But, if everything was not held jointly with right of survivorship, or in a trust, at the time of death, then probate is a way to legally change ownership. In practical terms, this might be accomplished using the power of attorney, if no one involved knows the person is dead. Because:
When it comes to 2, it is absolutely not legal to use a power of attorney of a deceased person. The person who can act on the deceased’s behalf is now the executor or the administrator of the estate. PoA is legally nothing once the person who gave it is dead.
Hiding a will in which you are named the executor and partial beneficiary, so that you can take everything seems like it should amount to some form of theft or fraud, but I’m not sure exactly how it would be treated.
Other people can start the probate process, so there could be further inquiry.
NB: Not your lawyer, not legal advice, written while up with insomnia, might be nonsense.
I know that, when my father died, we all (my sister, my mother and I, who were the three heirs, as well as my father’s siblings, and a lawyer friend of my father’s who helped him write it) all had access to the will or a copy of it, but there was no official event where we all sat down and read it together.
And my mother (thankfully) is still alive, and gave copies of the will in advance to her heirs and to her preferred executor (one of her siblings).
Oh yeah, this is not a required thing in my jurisdiction, and I’d be surprised if it is in any US jurisdiction. It might possibly be an instruction left by the testator, but mostly is probably a Hollywood invention or trope.
Not in Ontario at least. I was left $10,000 when my uncle died about 20 years ago. My father was the executor and I received a cheque from the estate account, but there was no formal reading of the will.
My parents made wills about 25 years ago using something like “Wills & Trusts for Dummies” that they borrowed from the library. They didn’t tell any of us (children) about it. They had them witnessed by friends/ex-coworkers and notarized by their real estate agent.
In the last two years they had a number of health scares and made another set of wills using an attorney. Attorney threw it in for a very low price when drawing up the power of attorney and healthcare proxy documents. The attorney filed these versions with the county court., as well as giving copies to my parents, my brother (executor) and keeping a copy in their own files.
I don’t even remember whether or not our attorney filed copies of our wills (my wife’s and my) with the court. We need to get ours updated now that sprog is almost of legal age. We will ask about the filing with a court thing when we go in to get the wills updated.
My parents and I live in different states so it’s possible that things are done differently in each.
As an aside, I have many friends in the UK (all in London and Environs) and they get really testy when people refer to how things work in the UK, when they really mean how things work in England or “England & Wales”. Because Scotland and Northern Ireland can be quite different.
My mom knew she was dying months before she did, and spent her time at home in a hospice type setting. She went to the bank and changed her accounts to include my sister.
She had no will. There was just me, my brother, and sister. She had a few things she wanted to give to specific people. She wanted my daughter to have her good jewelry “because she was so pretty” (which still makes my daughter tear up). She wanted my gf to have a few special cookbooks.
There was around $10,000 in the bank after all was said and done. Rather than divide it up, my brother set up a college fund for my sister’s two grandchildren. The fund has really grown under my brother’s attention.
If the estate is small (and “small” is not defined in law) probate is not required, but if the deceased was the sole owner of property, it certainly will be.
An executor can sort out the estate and apply for probate, but if there are any complications (inheritance tax, stocks and shares, etc.) it’s normal to find a specialist lawyer to do it. Whoever does it, all the costs can be defrayed against the estate before distribution according to a will or intestacy law.
My gf’s aunt died ~4 months ago, leaving a large (IMHO) estate. My gf is executrix of the estate, and has hired a lawyer. After 4 months of nearly daily work on this, things are still progressing.
The latest issue is that taxes on inheritance will be due prior to the inheritance being distributed. My gf has enough in savings to handle this, but if not there are companies specifically offering loans to people dealing with probate; Probate Advance is one such company.
To answer the OP directly, of course someone could hide the existence of a will. Wills are valid even if never known about by anyone but the deceased. I imagine it happens with some frequency when it’s advantageous for someone who finds that will to keep it secret. If someone has died intestate and by law you and your siblings would share an estate, but you find a will leaving everything to just one of your siblings you might keep that will hidden, or simply destroy it (if you were a dishonest person which I am sure none of my fellow Dopers are, maybe).
Recently a will left by Aretha Franklin, handwritten by the greatest singing voice in human history herself, was accepted as valid by a jury after it was challenged. I learned from watching Perry Mason that this is called a holographic will. It doesn’t appear to be in 3D, it’s not a hologram. Holographic means it written and signed by the testator. That would be the easiest kind of will to hide or destroy since no other person may have ever seen it.
Things are much simpler here, as we have no inheritance tax. There is a 1.5% probate fee that is paid by the estate, as are any income or capital gains taxes that were due on the estate. The only issue would be if there was no free cash in the estate and something would need to be sold by the estate to pay the taxes before distribution.