Concealing a will?

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Latest post 12-17-2012 10:36 PM by Drew. 9 replies.
  • 12-16-2012 12:14 PM

    Concealing a will?

    What can be done regarding a person (surviving spouse) concealing the information of the attorney to prevent the children (of spouse from previous relationship) to get what was left for them? The surviving spouse signed a prenuptial agreement and thought that the spouse would have changed the will and end/change the prenuptial agreement before death but it never happened. 

    Also the surviving spouse took advantage of the power of attorney and transferred assets that wasn't suppose to. The problem is that the spouse that just passed away most likely left the what was transfered to someone in their family and that would turn the spot light the surviving spouse for using the title of POA to transfer property. 

     

  • 12-16-2012 12:31 PM In reply to

    • Drew
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    Re: Concealing a will?

    Children  may also need to consider that a prenup plus NO will comes out to their advantage and they seek that POA be reuired to resotre assets to decedents estate .

    Failure to change a will in presence of new spouse may kill he old will anyway as to new spouse if her share is too small.

    Kids get counsel and seek letters of administration------??



  • 12-16-2012 1:10 PM In reply to

    • Kivi
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    Re: Concealing a will?

    Probate is a public process. First order of business is to check with the probate court and determine if probate was opened in the county in which the decedent lived at the time of death.

    If so, get a copy of the probate file. If the will was filed, a copy will be there. If probate was opened under intestacy, then a will was not filed. Unless you know more about this will and how to locate a copy of it, intestacy may be the way the estate proceeds.If you know what attorney drew up the prenuptial agreement, you might contact him or her and see if s/he ever did a will or recommended an estate planning attorney to his client. Follow up on any leads that you develop.

    If probate was not opened, then open it under intestacy and seek administration of the estate. She will object, of course, but even if she winds up as the personal representative of the estate, you can seek to hold her accountable before the probate court.

    This one may not be a good DIY legal project. The estate can use estate funds to defend against claims against it. You likely will have to pay a probate attorney with litigation experience to represent your interests. These cases are not generally done on a contingency basis. It can get expensive so you and your siblings may need to weigh the potential costs against what you hope to gain.

    In most states, surviving children do inherit under intestacy and the prenuptial agreement may matter, even if he never got around to doing a will.

  • 12-17-2012 3:31 AM In reply to

    Re: Concealing a will?

    Thank you so much Drew and Kivi.

     

    Kivi, what do you mean by "the estate can use estate funds to defend against claims against it."

  • 12-17-2012 4:06 AM In reply to

    Re: Concealing a will?


    Someone advise me to :

    -Open Probate and apply as personal representative
    -Once opened, a party can petition the court to demand the disclosure of the will.

     

  • 12-17-2012 7:37 AM In reply to

    • Drew
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    Re: Concealing a will?

    I agree --that to open probate under a no will/intestate posture may be a critical step

    The administrator then has power to seek disclosure of a missing will

    The administrator also has power in representing estate to seek an accounting from the POA and to unwrap any self deal.

    Caution, may not be as easy as it seems , I have not read NJs intestacy laws but in many states the surviving spouse has first shot at being named administrator if they want the role --and that could put the fox in charge of henhouse in your example?

    Prenup may be critical! Don't let that out of your sight.

    In general if there is a new spouse and an old will which does not include new spouse the new spouse has various state specific options to elect or get a slice by law --unless she agreed to less via a valid prenup.

    I think you would be wiser to use counsel .

    In general the expenses of the administrator or executor and his or her attorney chosen to assist in that role to properly process the estate are expenses which come off the top of the estate pot --and that probably includes any expenses of chasing down a wayward POA who depleted the proper estate with self deals.

     



  • 12-17-2012 6:53 PM In reply to

    Re: Concealing a will?

    ChrisTop23:
    What can be done regarding a person (surviving spouse) concealing the information of the attorney to prevent the children (of spouse from previous relationship) to get what was left for them?

    I'm not sure what you mean by "concealing the information of the attorney."

    If your intent was to say that the surviving spouse is concealing a will that the children believe leaves some portion of the decedent's estate to them, then any of the children (or all of the children jointly) may apply to the court to probate the estate as an intestate estate (i.e., one in which the decedent left no will) and to be appointed as executor.  If the distribution of the estate under the alleged will is more favorable to the surviving spouse than what would happen under the applicable intestacy law, then the spouse would have incentive to come forward with the will (if, in fact, one exists).  On the other hand, if the distribution under the intestacy law is more favorable, then the spouse would have no incentive and, presumably, would allow the estate to be administered under the intestacy law.

    It is impossible to opine intelligently about the effect of a prenuptial agreement without reading it and knowing all of the other relevant facts.

  • 12-17-2012 6:59 PM In reply to

    Re: Concealing a will?

    ChrisTop23:

    Kivi, what do you mean by "the estate can use estate funds to defend against claims against it."

    It's not clear exactly what "Kivi" meant or under what circumstances he/she envisioned this applying.  However, here's one possibility:  Susan dies and is survived by her second husband, John, and her three children from her prior marriage, Axel, Barbara, and Charles.  John files an action to probate Susan's estate (and to be appointed as executor) under a will that provides that the entire estate goes to John.  The court admits the will to probate and appoints John as executor.  Thereafter, Susan's three children file an action to contest the will.  Under the circumstances described, John can use estate assets to hire an attorney to defend the will contest.  Depending on the applicable state law and the relevant facts, if John loses, he may or may not be liable to reimburse the estate for the money used.

  • 12-17-2012 10:25 PM In reply to

    • Drew
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    Re: Concealing a will?

    and the estate administrator/executor can probably use estate funds to chase down a wayward POA and require an accounting and seek restitution if POA lined own pockets...

    But what that pre nup says is a critical missing link.

    If its to spouses favor for the will to stay missing that is a big clue but so far no idea which way benefits her.

     

    And what kinds/values  of things got moved using POA amd to whom.

    Do you mean spouse is also the POA?



  • 12-17-2012 10:36 PM In reply to

    • Drew
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    Re: Concealing a will?

    One clue re an estate :

    Roughly for NJ: The spousal election against a will which shorts or ignores her is 1/3  but as to a no will situation it approximates 1/2

    Of course a valid prenup could spell out far less .



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