QUESTION
Do I have any right or way to get what she left for my daughters and I?
Asked on Jun 10th, 2013 on Estate Planning - North Carolina
More details to this question:
My mother passed away unexpectedly in Dec 2011. She resided in Florida. I have reason to believe that her husband and my sister (both live in Florida) disregarded my mother's will and split everything between themselves. Do I have any right or way to get what she left for my daughters and I? I live in PA. Thank you very much for any help you can give me.
2 ANSWERS
3 Awards
You have a right if a) there is a will and you are a listed heir or there is no will and under FLA law you are an intestate heir, and b) there is even an estate-cash, bank accounts, property, etc. Unfortunately you will have to investigate to whether any of the above exist. You could call the county she died in and see if court records will tell you if a will was filed. You could also hire a local lawyer down there to investigate.
Answered on Jun 13th, 2013 at 10:35 AM
William R. Pelger, Attorney Munhall, Pennsylvania 412-461-1900
Legally, it is not possible for your mother's husband and sister to "disregard" a will. The laws dictate that a will has to be enforced, to the extent possible. The only exceptions which I am aware of which legally permit distribution of assets contrary to a will are: (1) where the estate does not contain sufficient assets to pay the just debts or the just debts can be paid but there are not enough assets to satisfy all of the bequests in the will; or (2) where a caveat or dispute is filed and the personal representative and party suing (usually an heir or would be heir) reach an agreement as the personal representative decides that settlement will be of benefit to the heirs rather than engaging in protracted and expensive litigation; or (3) possibly where the terms of a will are illegal (such as donating land for a park to only be used for white people) they can either not be enforced or modified by the courts. Since you indicate that your mother lived in Florida at the time of her death, then you need to talk to a Florida probate attorney, preferably one who practices in the county where the estate is pending. I hope the estate is still open - most estates are usually wrapped up in a year and I don't know what Florida law provides in regard to will caveats. There are time limits for bringing a caveat in some states. Other states require that notice be given to a beneficiary before final accounting is made and the beneficiary can object. Its not clear from your post whether you were totally disinherited or not. As I said, you need a Florida probate attorney. You will also need a copy of the estate file which should contain the will, petition for probate and grant of letters, order granting letters testamentary to the personal representative (that is the document officially appointing the executor), an inventory, publication to creditors and an accounting. Pay the attorney to review the estate file, determine whether you are a beneficiary and see if there are any grounds to object to the accounting or file a will caveat. I opened this answer with a qualifier - I said that legally there is no way to really disregard the provisions of a will. However, people who are disregarding a will are not acting legally. It will thus be up to you to stand up if there is unlawful conduct going on. For example, perhaps no will was ever probated. In such case, if you know a will exists, then most states have a process to compel the executor to produce the will. It is a crime to conceal or destroy a will. You can also compel the probate of an estate if there are probate assets. So the husband and/or your sister, will only get away with any misconduct if you allow it. Unfortunately, litigation costs money and can be expensive and a will caveat or proceedings to compel production of a will or probate are not going to be things usually done on a contingency. But first see what has or has not been done and what you need by getting a copy of the estate file and having it looked at by a Florida attorney. Although you are in PA, nothing in PA is involved if your mother lived in Florida.
Answered on Jun 11th, 2013 at 9:40 PM