interpretation of the will

[klw]

The state in question is Georgia. My aunt died. In her will named the beneficiaries as my sister first, the rest to be divided between 50 percent to her eldest son and the other 50 percent to her youngest son and his two children. The youngest is divorced.

My sister was stated to receive 10K and then the rest divided accordingly.

Her eldest son was named as the executor and since has moved to Florida, but his mother lived in Georgia.

Her two sons were not talking immediately after their mom died and subsequently, no one knew about the will. The week after she died, her eldest took her car, valuables, and paperwork with him to Florida. Her youngest son got a copy of the death certificate and somehow cashed in her insurance policies which we are not sure of the exact amount but somewhere between 50K and 80K. His children never received a penny.

We found out in December, 9 months after she died that they did probate the will, but still no one received anything, my sister, his brothers kids.

Now he continues to state that the will is still in probate and that no money has exchanged hands and that he is only responsible for giving my sister 5K and his brother the other 5K.

My sister was named first and then afterwards the rest of the will stated that the rest of the estate was to be divided amongst the family of her two sons.

What should my sister do?

How can her youngest sons children get what is rightfully theirs?

How could her youngest son cash in the insurance policies when the estate was included in the will?

Please advise. We are confused.

 

[advisor10]

2-1-2002

DEAR KLW:

Life insurance policies are NOT considered as proabte assets and are payable only to the beneficiaries named on the policy.

If the will is still being probated, then that means the estate is still open (maybe the executor is still in the process of paying other estate bills or claiming other assets) and it may be another month or so before it closes. When the probate judge has reviewed and approved the financial information that the executor gives to the court, then it is time to issue checks to the heirs.

Do you have a copy of the will? If you don't, then you need to get a copy from the probate court.

The will is a great guideline for following instructions, but everything really depends on how much total assets are actually left to be distributed after expenses have been paid. (If the estate has only $8,000, your sister obviously could not be paid $10,000).

Your brother's statement that he is responsible for only giving his sister $5,000 and the brother $5,000 would seem to be incorrect. If the language of the will is as you describe it, it would seem to be the case that if there is only $10,000 left, then the sister would get the $10,000 and the sons don't get anymore than what the youngest received from the insurance policies, since there is nothing else left. He may be trying to be fair by giving both of them something, but I don't think he will be allowed to distribute $5,000 to each, since that is NOT what the will says, and it would possibly be illegal and/or improper.

The real problem is that you don't know what the value is of the car and other "valuables" that he took to Florida. If he is honest, he will report the value of the car (if he is going to sell it) and the other valuables to the court so they can be included as part of the estate.

It looks as if this estate is not worth more than $10,000, but if it is then there is a chance that the heirs might get their fair share.

Your sister should wait until the estate has closed and find out how much she will be receiving, and look at the financial information in the probate file to see how the estate was handled. She should then take that information to her own attorney for them to review it to see if she was treated fairly according to the language of the will.

She should also find out from an attorney or from the probate court clerk if their state or county requires executors to post a bond. If the answer is yes, then if there is a small chance that you discover that funds were stolen from the estate, then she can file a claim with the bonding insurance company to get that money back.

SINCERELY,

advisor