Legal Question in Wills and Trusts in Ohio

If there is no valid will and you and your brother are children of both Mom and Dad, then mom is the beneficiary of Dad's estate and your brother should not be disposing of anything without at least Mom's consent.

If you have an unsigned copy, the original of a will could be on file with the probate court located in the County that your dad was living in at the time the will was made. If not on file with the Court, you might try the office of the attorney who drafted the will. It is not unusual for the attorney who prepared the will to keep the original at his or her office and provide a copy to the client. If you can tell who prepared the will then you might get some information from the attorney-if still around!

If Mom is not competent to be the executor of Dad's estate, then one of the children can apply to the Probate Court for appointment as the estate representative (administrator) and then that person has the authority to make sure that the property goes to the rightful heirs. If someone has disposed of property and it can be proven, then the administrator would have the authority to determine the value of the property disposed of and have the court order that the estate be reimbursed.

If Dad had accounts or other significant assets then it is a good idea to get an attorney to help you decide what can be done. Information from the web, while helpful, does not take into consideration of all of the issues that might be involved. The attorney needs to talk directly to the client and get additional information.

Feel free to contact me and discuss this in more detail. There is no charge for a telephone call and I may be able to answer some additional questions for you.

Good Luck

David H. Davies

440-953-2000

Please accept my condolences on the loss of your father.

You (and/or your father's estate, and/or your mother) may have a couple avenues of recourse regarding your brother's actions, if they are as you have described.

The most direct avenue would be to get you appointed as Executor of the estate; the best way to do that would be to find the original will. I agree with attorney Davies regarding making inquiry with the Probate Court of the county (or counties) where your father resided in the past, as well as trying to identify the attorney that prepared the will. If you mother had a contemporaneously prepared will, it might serve as an indicator of what lawyer or firm was utilized.

However, in the event the original will cannot be found, you mentioned there is an unsigned copy of the will in the safe and that said document nominates you as Executor. If any additional information or evidence exists indicating that the original will was properly signed and witnessed, then it is possible in Ohio to file legal paperwork with the Probate Court, called an Application to Probate a Lost Will, which would in effect allow the will to honored and you to be appointed Executor. In this scenario, the Court would hold a hearing and take testimony and evidence, such as the copy of the will.

The Executor would then have the authority to seek recovery of the items, or to seek damages from your brother by way of a Declaratory Judgment Action or a different action called a Complaint of Concealment of Assets.

Regarding your mother, it sounds like there may be additional legal issues to evaluate; it would be important to know whether or not your mother has any existing powers of attorney (health care or general) and if not, whether or not she might need a guardian to be appointed to look after her financial, legal, and/or health care matters.

You should have a face to face meeting with an experienced Probate attorney, in order to have all the details of the situation reviewed and fully evaluated. My office is located at the western edge of Westlake; if you would like further assistance, please feel free to contact my office at 440.899.7710.