Does SF need to probate Mom's will?

What is the name of your state? DE

Mom passed away 6 months ago. My parents had divorced and both remarried. When my father died years ago his will left everything to new spouse and nothing to us kids (the will indicated there was to be a page showing family items to us kids but it was not included with completed will and we kids received nothing). My Mom was quite upset about this and I believe my Mom would have left some remembrance for each of us children (not necessarily money but an item of remembrance).

I know Mom and Step-father each had a will but Step-father has not said anything about mom's will or passed on any remembrances as I think Mom would have requested. I've waited hoping that he would tell us something or show us the will just to let us know what my father wishes were. Now I beginning to believe that there is a reason ... Step-father wants to give everything to his kids.

Mom had joint real estate and accounts with Step-father. I estimate real estate value of $50,000 and joint and individual accounts with a total value of $500,000.

Does federal law or DE law require Step-father to probate will?

Is there any reason that he does not have to probate will (I guess that means I would never know what was in Mom's will)?

If there is a will, then this stepfather is going to be entitled to at least 1/3rd of the estate or $20,000, whichever is less, with 1/2 of the balance of anything over that going to him and the other half to the children.

If the estate is probated WITHOUT a will, he is going to be entitled to more than this, maybe at least $50,000, with a life interest in any personal property, so he might have received legal advice and decided on his own that he might be better off if the will was "lost" or "not found", OR it is also possible that there might not be enough assets to be probated.

The problem is that you don't really know what the estate is actually worth--if the accounts are titled jointly then he automatically gets ownership of the joint accounts when her death occurred, but you will have to look at each of the other individual accounts to see if she named him or someone else as beneficiaries to receive this money which of course passes outside of probate.

Have you checked at the county courthouse to see if the will has been filed yet--normally that is done within 30 days of the death. If it is filed, you can get a copy of it. If it has not been filed yet, then send him a certified letter asking for a copy of the will and if he has not responded within 2 weeks, consider getting your own probate attorney and filing at the courthouse to get this probate opened up. Also find out from the courthouse what the minimum amount of estate value must be before probate is required.

Probate is going to have to be done anyway to establish the names of the new heirs on the title/property deed and finding out from stepfather if he wants to continue living in the home for the rest of his life and determining now who gets the right to sell the home after he dies.

DANDY DON IN OKLAHOMA ([email protected])

Thank you Dandy Don for response.

I am sure that my Mom had a Will. I know when I was young she had one and know that it had been updated after being remarried. She had been ill for several years and was the kind of woman who would tend to such a task. She was also like many parents in that she never discussed specific money details and I was taught never to ask something so personal (see where good manners gets you?).

I do know from helping with her banking that she had at least $200,000 in an individual account. I don't think that the bank would be allowed due to privacy laws to let me know specifics about beneficiaries. I have to assume since the bank did not contact us that Step-Father was listed as beneficiary. Is it common to list a beneficiary to a savings account? I don't remember that when setting up my savings accounts. If Step-Father was listed as beneficiary on all accounts then I understand your response is that a will is not required to be probated.

As for the real estate I should have thought to say that what they own jointly is a mobile home on a rented lot. Sorry for incorrectly referring to this as though is was a property with a home. In my mind it's her home but I believe that the mobile home would probably not be considered real estate but more like a vehicle. So once again does this mean that a will is not required to be probated to change this from jointly owned to just Step-father's name?

I will take your suggestion and call the courthouse to see if any will is probated. We still invite Step-father to family functions and making any kind of formal inquiry would only cause problems. It is not something I can bring up to talk with him about without causing a problem that would result in grandkids no longer having a relationship with Grandpa. I have to consider the families of my brothers and sisters. I guess I would just like to know that my Mom thought of me. It's not about money but about knowing that she thought of me.

Getting a probate attorney could be the answer to your problems. That way he/she could contact the stepfather to ask for a copy of the will on your behalf. And no, the mobile home is NOT considered a vehicle, it is considered real property and it will have to be probated if it is paid for in full. So if no will has been probated, it would be to your advantage to get your probate attorney to file to be administrator, since the administrator would then have the legal authority to ask the bank about who the beneficiary was on the savings accounts and any other assets. You can't just assume that the stepfather was beneficiary because that may not be true and he might not want to tell you anything about the estate no matter who was beneficiary--your attorney would need to find out for sure exactly who the beneficiary was.

Good luck to you--I do hope you and your family do somehow benefit from this estate and hopefully the stepfather won't get everything!

DANDY DON IN OKLAHOMA ([email protected])