19 Feb My mom’s husband hasn’t probated her will. Now what?
Q. My mother-in-law died nearly six years ago and my stepfather-in-law never probated the will. The will states that the property should be divided equally between the husband and three adult children. What can be done to probate the will, or is it too late? What happens if he dies before the will is probated?
A. A situation like this is pretty dependent on the specific facts of the case and the will, but there are some basic things you should know.
We’re going to call your mother-in-law Mary and your stepfather-in-law Frank.
The first question is whether the will you found was Mary’s last will.
Only the most recent properly executed will is valid, said Andrew Novick, a certified financial planner and estate planning attorney with The Investment Connection and Brookner Law Offices in Bridgewater.
He said you should call the surrogate’s office in the county where Mary lived. Give her full legal name and date of death to see whether a will was ever probated for her.
If not — or if the will you found was newer than the one that was probated — it is not too late, he said.
“Take the original will and a death certificate with a raised seal to the surrogate’s office and ask them for instructions on how to probate the will,” Novick said. “If you don’t have the original, probating a will is much more difficult and you’d be well-advised to hire an attorney.”
The next consideration is why Frank never probated the will.
In the “honest” scenario — such as if he just didn’t know he had to — you can ask the surrogate to appoint Frank as Mary’s executor.
“The executor’s legal duties include collecting deceased’s assets, paying debts, filing tax returns, and distributing the net assets to the appropriate beneficiaries within a reasonable time period,” he said. “For a simple estate, Frank can probably handle this alone or with guidance from family members. For a more complicated estate, he may need help from an accountant, an attorney, or both.”
In the “dishonest” scenario, such as if Frank was trying to take 100% of Mary’s assets when he was only entitled to 50%, then you wouldn’t want Frank to be appointed as executor, Novick said. Instead, you should hire an attorney to look into filing a lawsuit to declare Frank unfit to serve.
Novick said with either scenario, you may want to investigate whether Frank violated his legal duties as executor.
“If he did, Mary’s estate and/or the kids might have a viable lawsuit against Frank,” Novick said. “This lawsuit could be based on negligence, breach of fiduciary duty, fraud, or any number of other legal theories.”
If Frank dies, an alternate executor would step in.
“If the will doesn’t name an alternate, the surrogate’s office can tell you who is next in line under the applicable statute,” he said. “Otherwise, not much else would change. Frank’s estate would acquire his assets, including any rights Frank might have to inherit half of Mary’s assets since he was alive at her death, as well as his liabilities, including any claim that Mary’s estate or the kids may have against Frank.”
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This story was originally published Feb. 19, 2020.
NJMoneyHelp.com presents certain general financial planning principles and advice, but should never be viewed as a substitute for obtaining advice from a personal professional advisor who understands your unique individual circumstances.