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Failing to File a Will

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J

Jende

Guest
In California does an executor have to file in court a will, involving multimillion dollar real estate, if the maker of the will put all her assets "in joint tenancy" without stating in the will with whom the joint tenancy exists? As a follow-up, can such an executor change the outcome of the will? Thank you.
 


ALawyer

Senior Member
Assets held in joint tenancy pass by operation of law to the joint tenant(s), and NOT under the Will.

The manner in which title to the property is held trumps the Will.

Of course, if you are contending that the transfer to joint tenancy was fraudulent, or made under duress, or when the person lacked mental capacity, then the transfer may have been voidable, in which case the Will could control.
 
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Dandy Don

Senior Member
Does the decedent have a surviving spouse or not?

Is there also a trust that this real estate might have been put into?

When did the decedent die (what month and what year)?

It really wouldn't make much sense not to file the will if there are other assets in the estate that need to be taken care of--in fact, it might be a mistake not to file a will with real estate valued in the millions of dollars, since there might be state and/or federal tax consequences to be considered, but I guess if the executor chose not to or was legally advised not to do it, then she can decide to do whatever she wants.

Go down to the county courthouse land records section and try to look at the property tax listings to see whose names are mentioned as owners, or pay a few hundred dollars to have a title/deed/abstract done from a local title/abstract company to find out exactly whose names are listed as owner--if there are joint names listed, then this is who the joint tenancy would go to.

Your best and safest bet if you want to preserve and protect your financial interests in this estate is to have the will reviewed by a real estate attorney. In a previous posting you mentioned that the executrix now gets 2/3 of this property and that you didn't know who the other 1/3 goes to. A real estate attorney can help you get that question answered, but you must also consult with a probate attorney to find out if there are any problems/complications that you might not be aware of.

EXECUTOR FEES IN CALIFORNIA:
Up to 4% of the first $15,000 estate value, plus
3% of the next $85,000, plus
2% of the next $900,000, plus
1% of the next $9,000,000, plus
0.5% of the next $15,000,000.

What exactly do you mean--how is the outcome of the will being changed? No, the executor can not "change the outcome" but an unexpected result that wasn't planned for or anticipated could actually occur that might seem as if it is contrary or different than what the will mentioned.

DANDY DON
 
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J

Jende

Guest
Thank you. I doubt I have any power in this case but I'm going to talk to a lawyer.
 

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