my father's will

[debra7252]

What is the name of your state? florida
my father died while going through a bitter divorce battle. two days before his death he signed a will naming my sister the executor and leaving the little bit he had to his 3 children, a car worth $14,000 and a small stock account (transfer upon death), estimated worth of $13,000. He specifically and intentionally left no provision for her. He died before he was legally divorced. He and his wife had been living apart, separate lives for year. There was a restraining order against her when he passed away.

His "surviving spouse" refused to pay any funeral expenses. We had to pay those, he had no insurance policy. We have all been advised by her attorney that she is pentioning the court to be named executor of the will and now the stock account has been frozen.

We recently found that the will that was drawn up by his divorce attorney was never filed with the court. He was made aware of my father's death immediately and advised he would file it, but is owed $14,000 for services rendered regarding divorce.

We have been told we must file an original will, not a copy. He has possession of this and has failed to file it.

What rights do we have as his children to the car, the stock account, and executing the will as my father requested?

Thank you for any help.

 

[Dandy Don]

My sympathies to you for having to deal with such a stressful situation. I assume that the death occurred recently, within this year?

There are so many variables with your situation that it's kind of hard to know how to advise you.

(1) CAR

Who has possession of the car right now? Is it going to be sold and the proceeds added to the estate or not sold? Executor will get to decide what happens with it.

(2) EXECUTOR

Did the will specifically name anyone to be the executor? If so, then who did it name? If there is no will, then anyone can file to be "administrator", but if the will specifically names an executor then if the will is produced it is the named executor who must serve. Perhaps it would be in your best interests to trump this spouse by getting her removed as executor so she can't collect a percentage executor's fee from the estate (does she have a criminal background?).

(3) ATTORNEY'S RELUCTANCE TO PROVIDE WILL

Did the attorney give a reason why he will not file the will? We don't know his true motivation--he may be withholding it out of spite because he hasn't been paid for the divorce services, or maybe the spouse doesn't want you to have access to it if she is filing the will herself, or the surviving spouse may not want him to file it and may have bribed him or paid him off or asked him to withhold it and maybe she made some type of secret agreement to pay him off IF she ever receives anything from the estate. Any how you look at it, his behavior is most unethical, and AFTER these probate proceedings are completed and the estate has closed, you need to file a complaint against him with the Florida State Bar Association so that this incident can be put on his record and other future clients will think twice about using him.

An attorney can advise you whether his withholding of the will subjects him to possible legal charges.

(4) STOCK ACCOUNTS

If you haven't already done so, you need to check with the company that is holding the stock accounts to find out for certain whether or not your father filled out any type of beneficiary designation form that would have left this stock to a specific, named beneficiary, in which case it would avoid probate. Since it is being "frozen", there probably was no beneficiary named and therefore the amount is going into his probate estate, but you still need to find out for sure.

If there is a will and the spouse/executor files it, she would need to do so pretty soon and she would be eligible to get the first $20,000 of estate value, with anything over that amount being split between her and the other heirs (but since it doesn't look as if this estate will add up to even that much, the heirs would not receive anything). If the attorney submits his $14,000 bill for payment to the estate and if there are other outstanding bills, then the debts must be deducted, and therefore the estate would be considerably reduced. If the attorney doesn't submit his claim for payment to the estate, I guess the spouse is supposed to split whatever is left with you other heirs, but there is no guarantee that she will do it and so that is why you may need your own attorney to represent your rights in this matter.

I'm wondering if the executor is going to go ahead and falsely claim that there is no will or that it can't be found, so that the estate can be processed as an "intestate" probate (meaning "without a will"), in which case she would be called the "personal representative" or "administrator", since the term executor is used only when there is a will. Under the intestate guidelines, the estate is split equally between the spouse and the other children. (5) HAVE YOU ALREADY CHECKED AT THE COURTHOUSE TO SEE IF THE WILL HAS BEEN FILED OR WHETHER THE PAPERWORK SHE FILED INDICATES THAT THERE IS NO WILL?

(6) FUNERAL EXPENSES--How much was the funeral bill? Whether or not there is a will, the estate IS responsible for paying the bill, so this debt is going to be top priority in getting paid--you will need to submit a claim to the estate to request reimbursement.

This is probably the best outcome that you can hope for in this situation--getting reimbursed for the funeral expenses, and then possibly splitting what is left over after the bills are paid.

If I were you I would seriously consider consulting (AS SOON AS POSSIBLE!!) with a local probate attorney (first consultation is usually free or very inexpensive, but even if you have to pay for 1-2 hours of his/her time, it would be money well spent) in order to figure out the best strategy to challenge/defeat this executor and also how to properly submit the claim for reimbursement.

(7) What date is the first court hearing for this probate matter? If possible you or your attorney needs to at least attending the first probate hearing or file a petition to let the judge know that the will does exist and is perhaps being withheld. Only your attorney can advise you whether it would be in your best interests financially to ask the judge to persuade this attorney to produce the will, or whether the heirs would come out better by having the estate being probated as "intestate" and not producing the will.

Best wishes in getting everything straightened out!! Don't let this greedy spouse get away with everything--throw a few surprises her way to stop her dead in her tracks!!

DANDY DON IN OKLAHOMA ([email protected])

 

[debra7252]

My father passed away 2 months ago. The stock account is a "transfer upon death" account in my name and sisters name.
We were informed by the stock account that it does not pass out of probate when there is a surviving spouse. This was not my father's understanding. Is this true?

There was a will done 2 days before my father's death, at his request, naming my sister as the executor, leaving all he had to his children. According to the court, the will was never filed with the court by the attorney.

We don't have an original will to file, only a copy. The attorney will not give us the original to file. How do we get around that to be able to file the will?????

Thanks so much for your help.

 

[Dandy Don]

Please read my reply again--you will need to hire a probate attorney to file a petition with the court to ask the judge to order the attorney to produce the will or to at least let the court know that the ORIGINAL WILL DOES EXIST, but first have your attorney work the numbers to see if you would come out with more money if the will is filed as opposed to if the will is not filed. And also find out from the attorney if the pending divorce would have any effect on what this surviving spouse receives from the estate.

 

[debra7252]

I did read your reply.

We would be happy to hire a probate attorney. We would have done so immediately. Unfortunately,of the 8 attorneys we consulted in Broward County, Florida, 7 flat out refused to take the case. The only one willing wanted a $10,000 retainer. We were told that the fact that my father had a "surviving spouse" would be a "battle" and very difficult.

Bottom line, we have no access to legal advise or representation. The surviving spouse is wealthy and has one on retainer and still wants the little bit my father had.

We were advised that the car automatically belongs to her.

I sent a copy of my father's will to her attorney, certified mail. Aside from making him aware of the will, is there anything else we can do....alone?

Thank you.

 

[Dandy Don]

Send me an e-mail message so I can suggest something else that you can do.

Exactly WHO was it that advised you that the car was "automatically hers"? I believe that you were lied to, since the car is just another possession of his estate whose distribution will be decided during the probate process.

I think that the attorneys who are unwilling to take your case are wrong and possibly being scared off by the fact that they know this lady is wealthy, and the real reason they aren't taking your case is that they don't see enough money in it to collect a large fee.

You need to continue talking to probate attorneys locally until you find at least one who is willing to represent you--in fact, you don't need one to represent you on a continuing basis, just try to find SOMEONE WHO WILL DO JUST ONE THING FOR YOU--someone who will file a petition with the court that lets the court know about the existence of the original will and the fact that it is being withheld, or someone who will be at least willing to attend the first probate court hearing to bring up the fact about the existence of the will. JUST GETTING THE WILL ADMITTED TO PROBATE COURT WILL BE YOUR MAJOR VICTORY and all of the other facts will work in your favor!! Even if you can't find anyone in Broward County to represent you, then start looking outside of Broward County or contact any local colleges/universities law department to see if someone there could help.

SECTION 732.207 of Florida Statutes Annotated says that the spouse's right to property, regardless of whether there is a will or not, that the SURVIVING SPOUSE IS ENTITLED TO 30% OF THE DECEASED SPOUSE'S ESTATE. So that means that even after estate debts are deducted, the most that she can get is 1/3 of the estate, AND YOU ALL GET THE OTHER 2/3RDS!!!

Your sister executor gets the power to decide what happens to the car, and the fact the your father designated you and your sister to be the transfer on death beneficiaries on the stock account, and that the will expressely disinherits the spouse, and the fact that divorce proceedings were pending makes it very clear that your father wants his children to beneficiaries and that this surviving spouse has no standing to receive anything else but the 1/3rd. You can even receive the funeral reimbursement BEFORE the estate assets are divided up.

The only bad thing I can see happening is if the attorney who is withholding the will decides to also present his bill for $14,000 to the estate for payment, which would essentially wipe out any benefit from going to probate, but hopefully in view of his unethical behavior here, you could negotiate with him to reduce his fee.

You have a winning case if you will just follow through on it.

DANDY DON ([email protected])

 

[debra7252]

my father' will

On behalf of my father and my family, I thank you so much for your help.