Legal Question in Wills and Trusts in Indiana
Uncle won't probate the will
My grandmother died in may of 2001, Uncles attorney says they are not probating there is no estate. Uncle is claiming the house is only worth $24,000 and has
rented the house out.
Uncle was made exuecator of the will in 1984. Grandmother told me
i was to recieve my fathers portion of her estate about 2 years ago
she had a new will made up. The will I have is the old one
which she had made up before she had to much money saved up. She
had approx $100,000 a few years back and Uncle to invest
for her. He claims he put it in CD's $25,000 in his name and 3 sisters names. But since my father was dead he could not put one in his name.
the will I have has a special provision for me in it stating I will recieve 1 1/2 %
of the estate or $1,000.00 whichever is the least. But she told me she had made
a new will out. There is other items which she had of value which have been taken
from her house after she died. I asked uncles lawyer he said they were given as gifts
and unless I have proof otherwise nuthing I can do.
Please advise me what i should do to recieve my fathers portion like Grandma
told me i am to recieve. thanks in advance.
3 Answers from Attorneys
Re: Uncle won't probate the will
You are entitled to receive your father's portion. By law, anyone in possession of a decedant's will must file it with the court or be liable for damages. Hire an attorney!
Re: Uncle won't probate the will
You sincerely need to meet with an attorney who is well versed in probate law. If your uncle will not file the will as required by Florida law (and probate the estate), then it is up to you to hire an attorney to file the estate on your own and ask the court to require that the Will be filed. The Judge may order the estate to pay your fees and costs.
This is a very serious legal issue and you should protect you legal rights. You will not be able to do this on your own, however. Competent counsel is a must.
Scott R. Jay, Esq. 305-249-8000
Re: Uncle won't probate the will
Whether there is anything for you to inherit (if you discover the actual terms of your grandmother's will) depends upon the life-time planning she engaged in (apparently with your uncle's assistance).
When a person dies he owns both probate and non-probate property. Only probate property passes under a will. Non-probate property goes directly to the surviving joint owner. From this, you should assume that probate property is defined as property owned solely in the name of the decedent.
All wills of residents of the state of Indiana ought to be probated, which is the process of proving the will was actually a will and properly executed. Then the estate may or may not be administered under Court supervision, be unsupervised or be transferred by affidavit.
It is the latter process your uncle is employing, by determining that the value of the probate estate is less than $25,000.
Until the will is probated, you would have the right to petition the court to appoint you or someone else administrator of the estate to determine what the assets are. This may cause you uncle to probate the will.
In many cases where there has been some sort of estate plan put into place which would avoid probate of the estate, it can be difficult and expensive to challenge that planning and bring all of the non-probate property back into the probate estate.
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