will and probate

[canman]

six months ago, my father died in Texas. My step-mother claims to
have inherited everything, according to my half-sister who is feeding me bits of information since my step-mother and I don't
communicate. To date, no will has been filed for probate. My half-
sister syas "our" father wrote on the original will and maybe started some paper work to begin the process of changing the amounts to be inherited between us 3 sisters, my half-sister, my step-sister and myself to equal, equal and equal. My half-sister just recently sent me a will form with names typed in, but without
signatures and a notary seal. She said it's a copy of my father's will and also said she could not send me a copy of the original because it was at "their lawyer's". She asked me to sign a waiver
so "it can read the way it was originally meant before my father wrote on it" allowing my step-mother to inherit everything. I told my half-sister I would not sign such a waiver. If my step-mother is the executrix of my father's will, and claims to have inherited everything, why would she need my half-sister, my step-sister and myself to sign a waiver? Will the probate court judge or "their" lawyer notify me of what's going on since I assume I am
mentioned in the will? Should I hire a lawyer? The last time I talked long distance on the phone to my half-sister, she said "do you mean you want an equal amount of the total estate?"

 

[advisor10]

3-23-2002

DEAR CANMAN:

So sorry about the loss of your father. If what your half-sister says about your father writing/making handwritten corrections on the will is true, then those corrections may not be valid. What he should have done was to have consulted with the attorney who drew up the will so that the corrections could be retyped and a new/corrected will prepared. I'm not familiar with Texas law, but I'm just giving you my general view of this situation.

Try to find out the name and address of the attorney who has the original will. Normally, it is a requirement that the will should be filed at the probate court within 30 days of the person's death, so it is a little bit odd that they haven't filed it yet.

The bottom line here is that you need to at least consult with a local probate attorney to figure out what your next steps should be. You should show him/her the documents you have. Assuming that you have received a valid copy of the will, you were very smart NOT to have signed the waiver, because of course you don't want to sign your rights away until you find out what, if anything, you would be eligible to receive from this estate.

It is most likely that the corrections will not mean anything, but you need to find out if the will is going to be accepted with the corrections on it, but with the corrections being ignored, or if the entire document is going to be rejected because the corrections were put on it in handwritten form.

There are so many variables here that only a local lawyer can advise you of the best strategy.

If it is true that the stepmother gets everything, she may have been following the advice of her probate attorney to ask you all to sign waivers, just to protect herself by making sure you all get nothing. BUT it is the law in most states that children MUST BE MENTIONED IN THE WILL, so if you were not specifically disinherited in the will, then there is a chance that the children could contest this will and/or have your attorney negotiate for a share of this estate without having to go through a lawsuit against the estate. The children might not get an equal share of the estate, but they are entitled to something, just like the stepmother is also entitled to something.

You can't expect that the other side will notify you about what is going on (although that would be the proper, ethical thing to do since you do have an interest in the probate proceedings), so at least try to find out when the first probate hearing (date and time) is going to be held in this estate so you can attend or have your attorney attend.

If possible, your attorney could file a petition to FORCE the other side to submit the will to probate court, but maybe it won't have to go that far. It looks like they are delaying filing of the will as long as possible in order to keep secret the asssets or who knows what the reason is--they might have a valid reason, or they may be up to something funny.

Do you have any idea of what the total value of the estate is?

SINCERELY,

advisor
[email protected]

 

[advisor10]

3-23-2002

DEAR CANMAN:

Send me an e-mail message so I can pass on to you a confidential tip about your situation.

SINCERELY,

advisor
[email protected]

 

[advisor10]

3-25-2002

DEAR CANMAN:

Be very careful and polite and sensitive not to offend the attorney who has the original will. You should call or write him to try to figure out exactly who he is representing in this estate--is he representing the stepmother or advising her as executrix or is he neutral or is he professionally trying to carry out the wishes of your father (the person who hired him if he made up the will).

You may need to get this attorney's testimony as to the status of the will. Did your father call or write to this attorney to inform him of the changes your father wanted to make to the will? Was there enough time before your father died to make the changes and prepare the corrected will for your father's signature, or did the death occur before the changes could be made?

Will you need to get a record now from the phone company of the local calls made from your father's phone (to the attorney's office) during a certain time period before his death, in order for you to be able to prove that he had communicated the changes?

If you don't want to ask those questions, then have your attorney ask the questions for you.

It's very nice (although self-serving), I suppose, for the half-sister to be giving you information about what is going on in the estate, but it would be better if the attorney was giving you that information himself (unless there is some reason he doesn't want to do it).

If necessary, you could file paperwork with the probate court to FORCE the stepmother to produce the will for probate (in order to avoid the unreasonable delay), but that is a decision only you and your attorney can make after you have figured out how you will be able to establish a valid claim to this estate.


SINCERELY,

advisor