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Has a will but still has to be probated??

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jedsai

Junior Member
My aunt passed away but had no children. Soon after she was diagnosed with dementia a relative took her to a lawyer's office and had a will made out. So I assumed that everything would be taken care of with that will. However, all of her heirs (children of her siblings - since they are all dead now) are being harassed to sign off on this probate. I thought that was the whole purpose of having a will - so that probate wouldn't be necessary. Why are we still having to go through this? Any ideas?
 


latigo

Senior Member
My aunt passed away but had no children. Soon after she was diagnosed with dementia a relative took her to a lawyer's office and had a will made out. So I assumed that everything would be taken care of with that will. However, all of her heirs (children of her siblings - since they are all dead now) are being harassed to sign off on this probate. I thought that was the whole purpose of having a will - so that probate wouldn't be necessary. Why are we still having to go through this? Any ideas?
If you will pardon me for asking did you actually read the above before you posted it? Because this is a bit confusing: "The heirs are all dead, yet are being harassed"? I gather you (niece or nephew) are not speaking to us from the grave.

Also it isn't likely that an attorney would have made out a will for a person knowingly having been diagnosed with dementia. At least not when such mental incapacity was made evident to the attorney and the proposed witnesses to the will and to the degree that the individual would be unaware of the nature or her act, nor the nature and extent of her assets nor the natural objects of her bounty.

But if that were the case then the will would be subject to challenge on the issue of the testatrix (maker) possessed of soundness of mind.

I don't know who "we" is or what "we" are having to go through, but the purpose of a will is not to avoid probate. It is just the opposite. Any will known to be that of a deceased person must be filed with the appropriate court. What transpires thereafter can largely vary.

Also unclear is what is meant by signing off on this probate. That is not a common expression in the business of probate law. Perhaps you and the others still on this side can consult and arrive at an understanding as to what is going on here. Speculation from my end wouldn't be helpful.
 

jedsai

Junior Member
If you will pardon me for asking did you actually read the above before you posted it? Because this is a bit confusing: "The heirs are all dead, yet are being harassed"? I gather you (niece or nephew) are not speaking to us from the grave.

Also it isn't likely that an attorney would have made out a will for a person knowingly having been diagnosed with dementia. At least not when such mental incapacity was made evident to the attorney and the proposed witnesses to the will and to the degree that the individual would be unaware of the nature or her act, nor the nature and extent of her assets nor the natural objects of her bounty.

But if that were the case then the will would be subject to challenge on the issue of the testatrix (maker) possessed of soundness of mind.

I don't know who "we" is or what "we" are having to go through, but the purpose of a will is not to avoid probate. It is just the opposite. Any will known to be that of a deceased person must be filed with the appropriate court. What transpires thereafter can largely vary.

Also unclear is what is meant by signing off on this probate. That is not a common expression in the business of probate law. Perhaps you and the others still on this side can consult and arrive at an understanding as to what is going on here. Speculation from my end wouldn't be helpful.

Sorry - thought I was clear. I said her siblings are dead - not her heirs. The remaining heirs (neices/nephews) are now being harassed to sign documents. And I'm not sure how any sane lawyer would not know that she had dementia. It was very obvious.

I don't think you understood my question - if someone has a will and you STILL have to track down all heirs and spend months to sign documents it seems like it would be the same as if you had no will.

Sorry if I have bothered you with my question.
 

LdiJ

Senior Member
Sorry - thought I was clear. I said her siblings are dead - not her heirs. The remaining heirs (neices/nephews) are now being harassed to sign documents. And I'm not sure how any sane lawyer would not know that she had dementia. It was very obvious.

I don't think you understood my question - if someone has a will and you STILL have to track down all heirs and spend months to sign documents it seems like it would be the same as if you had no will.

Sorry if I have bothered you with my question.
A will MUST be probated. So, what is going on appears to be normal and necessary.
 

adjusterjack

Senior Member
The remaining heirs (neices/nephews) are now being harassed to sign documents.
It's harassment if you are being told to disclaim your inheritance or else. It's not harassment if you are being asked to sign routine legal documents required of the probate process.

And I'm not sure how any sane lawyer would not know that she had dementia. It was very obvious.
Even people with dementia have lucid moments, more so during early diagnosis, and the requirements of being of sound mind are rather minimal. The person needs only recognize what a will is and its purpose, know what he or she owns, and who the people are to whom he or she wants to leave it all. Not a very high standard from a legal standpoint.

if someone has a will and you STILL have to track down all heirs and spend months to sign documents it seems like it would be the same as if you had no will.
You are correct up to a point. An estate generally needs to be probated with or without a will. Having one just makes it a little more efficient.

Sorry if I have bothered you with my question.
No bother.
 

latigo

Senior Member
Sorry - thought I was clear. I said her siblings are dead - not her heirs. The remaining heirs (neices/nephews) are now being harassed to sign documents. And I'm not sure how any sane lawyer would not know that she had dementia. It was very obvious.

I don't think you understood my question - if someone has a will and you STILL have to track down all heirs and spend months to sign documents it seems like it would be the same as if you had no will.

Sorry if I have bothered you with my question.
Your question if you will recall was, "Why are we still having to go through this". Agreed?

And my question to you is how can you expect a meaningful answer when you have yet to explain what THIS means.

You write that you and others are being harassed to sign documents, but have yet to explain what these documents consist of; the legal import and consequences of the signing of the documents; or the nature and the source of the harassment.

You complain of an attorney having allowed your demented aunt to make her will and then you complain that efforts are being taken that are unnecessary because she had a will.

I'll tell you what! If any of yours makes sense, then its me and not you that needs to check into the nearest mental health clinic for the help desperately needed.
 

Dandy Don

Senior Member
What state did the death occur in?

What is the estimated value of this estate?

How was the "relative" (who took her to the attorney's office) related to the aunt?

Please explain what you mean when you say that you are being asked to "sign off" in this matter--are you being asked to disclaim or deny your inheritance or are you being asked to do something else? Do not sign off on, or agree to anything that you do not understand.

A person who has been officially diagnosed with dementia, in most states, is presumed to not have the mental capacity to compose legal documents, so the will is most likely invalid to begin with, and the "relative" who helped get the will written probably knows or suspects that you all will figure out the illegality of what he/she is trying to do.

Bottom line is that one (or all) of the nieces/nephews need to hire the services of their own attorney to let the attorney know that this will was written under duress and by a person with diminished mental capacity, so that the attorney can review the law to see if this will can be thrown out on a technicality, in which case the estate might be divided amongst the nieces and nephews anyway on the basis of your state's intestate probate law (if nieces and nephews would qualify). You also need to ask the attorney if you all need to contest the will, which might be somewhat expensive in legal fees to pursue such a case. I'm hoping that the will is going to be thrown out on a technicality and that you won't have to contest.
 

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