Legal Question in Wills and Trusts in Ohio
Two Different Wills Are Filed-Which One Takes Precedent?
My father died in Nov 03. His second wife has not filed a Will and does not respond to certified letters asking if there is a new Will. I have a Will from 1994 and I am the executor of the estate. I think my Dad created a new Will after he re-married in 02 but, his second wife is not cooperating with me and two witnesses will not admit to what they signed in July 03. My Dad kept his house after re-marrying and it is in his name only. She kept her house after the marriage and still lives in it. My Dad's house and belongings have been sitting since Nov. If I file my COPY of the 94 Will(the original is locked up in my Dad's house)and then she files a new Will after, what happens next? I was told if she does not file after I file, I can break in to my Dad's house since the 94 Will leaves everything to me and Executorship. I would have to break in since his new wife changed the locks on my Dad's house and now my key's are useless. In checking the County Probate website, I can see a Will has not been filed. Last ?: How long do you have in Ohio to file a Will and a death certificate after a death?
2 Answers from Attorneys
Re: Two Different Wills Are Filed-Which One Takes Precedent?
The court will determine which Will is valid, but in Ohio the general rule is that the most recent validly executed Will takes precedence.
Go ahead and file the Will that you currently have. Once you file, the other Will (if there is one) will need to be filed in a timely manner. At that point in time the other Will will become public record and available for anyone to see so you will also have the opportunity to review it.
Re: Two Different Wills Are Filed-Which One Takes Precedent?
First, has anything been filed in a Probate Court? If not, hire an attorney to advise you. You are not the Executor simply because your copy of the will, which may or may not still be valid, names you as Executor. As far as "breaking into the house" is concerned, I would not do that without the Probate Court's permission.
Probate Courts in different counties in Ohio have different rules and procedures. What may be appropriate in one county may not be appropriate in another. This is why you need an attorney familiar with your particular Probate Court.
As far as which will would be valid, the most recently created will if filed and if it recites that all other wills are revoked would count. Since you haven't seen the original of the will of which you have a copy, you don't know (or may not know) if your father tore it up or otherwise voided it. In that case, if no will shows up, his estate would be probated as an intestate (without a will) estate.
I hope that helps answer you main question.
Paul
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