Your Rights If Someone Has Left You Property in a Will

The executor owes a duty to all persons listed in the will. The executor must manage the estate property responsibly, and must distribute the estate property to all persons entitled to it. If the executor does not perform his duties, the judge may remove him and appoint a new executor. If the executor does not file a probate, you may file probate. If someone won’t let you see the will, you may ask the judge to order them to let you see it. If the will is lost, but two witnesses can testify as to the will’s contents, you may still probate the will.

You know or think that someone has left you property in a will, but you are not getting the property. You may be wondering: Is there something you can do to collect the property? Do you have any recourse if people are trying to keep you from getting the property? The answer is yes.

This is the second in a series of three posts. In my post two weeks ago, I explored your rights if you are the beneficiary of a trust. In this post, I’ll describe your rights if someone has left you property in a will. In my next post, I’ll look at your rights as an heir under the intestate succession law.

The executor of a will owes you a duty

A person who writes a will is called a testator. The testator usually names an executor – a person who is in charge of distributing the property after the person dies. After the death of the person who wrote the will, the executor generally files a probate petition in court, and asks the judge to appoint him executor. The appointment of an executor is not automatic; after the petition is filed, the judge must determine whether the person named is suitable to serve as executor. A person may not serve as executor if he is:

·         Under eighteen

·         Convicted of a crime that “causes the court to believe” that he should not be executor, or

·         “Adjudged by the court incompetent to execute the duties of the trust by reason of drunkenness, improvidence, or want of understanding and integrity.”

But, when the court does appoint him executor, he must perform certain duties according to law. The executor must:

·         File an inventory listing all property of the estate. He must file an inventory within sixty days after the court appoints him executor.

·         Notify all creditors, to whom the decedent owed money. He must notify the creditors within sixty days after being appointed.

·         Distribute all property to every person named in the will.

Depending on what is in the estate, the executor also may have other rights and responsibilities. For example, the executor may sell property of the estate. If all heirs consent to the sale of the property, the executor only needs one court order allowing the sale, and no further court approval is necessary after the sale. But, if any heir does not consent to the sale of the property, then the executor must apply to the court to allow the sale, and the court must give notice to all heirs. If the court then allows the sale, the executor may sell the property. But after the sale, the executor must petition the court to confirm the sale, and the sale is only effected after the court confirms the sale. Before the court confirms the sale, any heir may object to confirmation.

An executor “stands in the shoes” of the decedent. For example, if the decedent was a party to a lawsuit, and the claim is of the type that survives death, the executor may substitute himself as the party to the suit. If the decedent had the right to file suit during his life, but never filed suit, or if someone owed money to the decedent, the executor may file suit to collect the money.

If you believe that the executor is not performing his duties properly, you may ask the judge to remove the executor and appoint a new executor. The judge must hold a hearing on your request for removal. The court may order the executor to appear at the hearing, and if he doesn’t appear, the judge may remove the executor. At the hearing, you (and your lawyer, if you have one) may present evidence and call witnesses. The executor (and his attorney, if he has one) may also present evidence and call witnesses. If, after hearing all the evidence, the judge determines that the executor has not fulfilled his duties, the judge should remove the executor and appoint a new executor. To read the law on removing an executor, click here, here, and here.

What if the executor doesn’t file a probate petition in court?

If the executor doesn’t file a probate petition, you may file a probate petition. The law (click here) says that anyone named as a devisee or legatee in the will, or any person interested in the estate, may file a probate.

What if someone won’t let you see the will?

If someone won’t let you see the will, then you may file a petition and ask the judge to order them to produce the will. The judge may issue an order, directing them to produce the will. If they have possession of the will and don’t produce it, the judge may issue a warrant committing them to jail, and ordering that they be held until they produce the will.

What if no one can find the will?

If no one can find the will, then you might be able to probate the will as a “lost will.” The court may admit a lost will to probate if two witnesses testify as to the contents of the will, and if it can be shown that the will was in existence at the time the testator died, or if it can be shown that someone fraudulently destroyed the will during the testator’s lifetime. If a copy (but not the original) of the will is still in existence, the copy may be admitted as evidence of a lost will.

Do you need help with a probate case? Contact the Persaud Law Office.

At the Persaud Law Office, we have handled many probate cases. If you believe you are owed property under a will, and someone is denying you your rights, we can help you. Contact us today for a free consultation.