Legal Question in Wills and Trusts in California
My Mother had a last will and testament in the state of California that named me, my sister, and brother beneficiaries to her will, dated 1987. I am the executor of her will. She passed away in 1990. As per her wishes my brother has lived there as long as he wishes, and if the home is sold to be split among the 3 of us. At the time of her funeral, my sister and brother made up a letter and made me sign it. I did not read the letter until now, as I just made up my will and showed my lawyer. He suggested that I probate the will. I was too distraught to read the letter at the time of my Mother's death. I want to carry out my Mother's will as these were her wishes. I will be in California in the next couple of weeks. What do I need to do? Is the letter that my sister and brother made up legal against my Mother's will Thank you
2 Answers from Attorneys
What did the letter that you signed in 1990 say?
You have major problems. It has been twenty-four (24) years and you have not probated the will. It also sounds like the will was not lodged with the court, and is just laying around where it could be lost and destroyed. This was your duty if you were the custodian of the will. (See Probate Code section 8200.)
If your brother paid property taxes for all those years, and can prove to a court that he lived there without permission, you may also have an adverse possession claim on your hands.
Just because you are named as the executor of a will and have a copy of it does not mean you can run around and do what you want. The will must be probated and the person to act as an executor must be appointed by the court and given what are known as "Letters Testamentary." Those letters give you the authority to act on the estate's behalf.
There are many more problems as I read this. You need to consult with a probate attorney immediately.
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