stretchedthin said:
Thank-you so much for the clarification. My brothers attorney keeps insisting the whole will is null and void due to the divorce and has advised us to proceed as if there is no will and file intestate. I have advised my brother to get a second opinion and he refuses. They keep mentioning section 69 in the probate code to back up their statement that the whole will is null and void. It's my understanding, like you said, that only the part about my mother being beneficiary and executer will be stricken from the will and that the rest of it is vaild. The will is in their possession and I'm assuming it's going to magically disappear so they can follow through w/their plan to file intestate. Is there anything I can do about it? Isn't it illegal to not present a will to the probate court if you have one?
That's a weird reading of Section 69:
§ 69. Voidness Arising From Divorce
(a) If, after making a will, the testator is divorced or the
testator's marriage is annulled, all provisions in the will in
favor of the testator's former spouse, or appointing such spouse to
any fiduciary capacity under the will or with respect to the estate
or person of the testator's children, must be read as if the former
spouse failed to survive the testator, and shall be null and void
and of no effect unless the will expressly provides otherwise.
(b) A person who is divorced from the decedent or whose marriage to
the decedent has been annulled is not a surviving spouse unless, by
virtue of a subsequent marriage, the person is married to the
decedent at the time of death.
Acts 1955, 54th Leg., p. 88, ch. 55, eff. Jan. 1, 1956. Amended by
Acts 1979, 66th Leg., p. 1746, ch. 713, § 12, eff. Aug. 27, 1979;
Acts 1995, 74th Leg., ch. 642, § 2, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 1302, § 5, eff. Sept. 1, 1997.
Now, it may be that from a
practical standpoint that the will is written in such a way that removal of the ex-wife essentially makes the whole will go away. However,
legally the will is still valid, and it should be probated.
However, it sounds as if regardless of whether you probate the will or not, you and your brother will split things 50-50. If that's the case, then what's the point in making a big deal about things?
And just FYI, if you don't have a copy of the will, unless you go and grab the copy and probate it, you can't really force them to probate the will -- they could just open an intestate estate, and say that they lost the will or something. Unless you want to hire a lawyer to try and force them to cough up the will, there really isn't much you can do -- the courts will almost certainly take their word for it if they don't enter the will into probate.
But again, if it doesn't matter, why worry about it?