Re: Petitoning Last Will and Testament
- From: "Thomas" <tom63006@xxxxxxxxxxx>
- Date: 30 Jun 2006 08:29:24 -0700
McGyver wrote:
"Thomas" <tom63006@xxxxxxxxxxx> wrote in message
news:1151678666.811806.209880@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
McGyver wrote:
"Thomas" <tom63006@xxxxxxxxxxx> wrote in message
news:1151645842.143903.259510@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Petitoning Last Will and Testament
I'm trying to write a legal situation in a novel idea I'm working on.
Let's run a couple of hypothetical situations if you're willing to
indulge me.
My main character has been listed as a personal represenative on a
relative's Will (we'll call him John). However, another person (also a
relative, named Jane) has filed an older Will of the deceased where
they are listed as the PR on that document. Now, it's pretty obvious
how this works. The older Will should be revocated and the new Will
would be administered after filing a petition and a hearing scheduled
(as long as there are no hiccups). Am I correct in understanding that
Jane has broad discretionary powers to look into any personal/business
matters of the deceased because she filed first? What if the deceased
did not want the PR listed in the older Will to have any insight into
their affairs while they were living or dead (thus the reason for the
new Will)?. Is it not using the letter of the law against the spirit of
the law in a sense? I guess what I'm getting at, is there any
*immediate* way to stop the older PR from using powers given to them in
an outdated Will, until a probate judge can decide which Will is valid?
No problem. Jane has no powers yet. The will nominates an executor.
The
nominated executor becomes the actual executor by submitting the will to
a
probate court and obtaining from the court a document called (in my
state)
"Letters of Administration". Then the nominated executor really is the
executor and not just a nominee. That's when the executor has power to
do
things and to look into things.
In that event, is there anyway to order somekind of temporary cease and
desist on her part until which Will can be validated? I know that
sounds ridiculous, but is there *anything* that would allow for this?
To cease and desist futile efforts to get banks or whoever to reveal
information? Jane will not be able to do much without a court appointment.
If the plot creates some realistic way for Jane to get her nose into the
affairs of the estate, then sure, John could go to the probate court and
file a motion for a temporary restraining order. That order mitght be
granted, but might not be. Nominated executors are given some slack because
it is desireble that some person protect and preserve estate assets pending
a decsion on the petition. Remember, though, that the initial decision
concerning issuing the letters will be fast, so there won't be too much time
for Jane's interference. Counting in Jane's favor regarding the TRO is the
apparently harmless nature of her inquiries.
When you say "court appointment", you are referring to after the older
Will has been filed and the letters of administration have been issued?
She is then the court appointed PR, correct? In that event, is there
anyway to "temporarily restrain" her until the new Will has been give a
chance to be reviewed in Probate court?
That won't happen unless the new will turns out to be invalid for some
reason, such as forgery. John will file an objection to Jane's petition
for
letters of administration. In support of that objection, John will file
the
new will. If the new will is valid, Jane's petition will probably be
denied. At the same time, John would file his own petition for letters.
If Jane tries to dig into the affairs of the estate before filing the
will
for probate, or while it is pending, she could succeed to some extent.
People do cooperate with nominated executors. But she will not get
cooperation from bankers and some others because they will politely ask
to
see the letters of administraton.
There is one wrinkle. Probate may be denied as to the will submitted by
Jane and granted as to the will submitted by John, but it is still
possible
that Jane will be appointed as executor of the estate. That could happen
if
John is determined to be unsuitable.
This answer must not be relied on as legal advice for the reasons posted
here: http://mcgyverdisclaimer.blogspot.com
McGyver
Well, that's an interesting sequence of events. So, the new Will would
be administered obviously, but Jane, the PR listed in the older Will,
could be given the responsibility of executing the newer Will if John
is seen as unsuitable?
Yes.
What if there was a second PR listed in the
newer Will in the event that John was incapable or unsuitable to
perform his PR duties.
That person, if deemed suitable, would probably get the nod over Jane.
However, the "backup" PR (we'll call her
Jessica) is also the sole beneficiary listed in the newer Will? Would a
probate judge look at that and take the easiest course of action and
appoint Jessica from the new Will, or would he see that because she's
the sole beneficary in that Will, it may be a conflict of interest to
have her both as PR and sole benficiary?
There is no conflict of interest. Jessica's position as sole beneficiary is
an important point in her favor, not a negative factor. She will almost
surely be appointed if John is unsuitable, even if she is not named as the
alternate.
You're saying a judge would appoint her as PR, even if she wern't
listed to be one in the Will?
Another angle to look at this... Who should file the petition to object
the older Will? John, the PR listed in the newer Will? Well, lets say
he suspects that he's going to be found as unsuitable (perhaps he
mishandled the estate). Can the fact that he filed for the petition
make it null and void if he's found of wrong doing?
Not a problem. Disqualification of John doesn't end probate of the later
will.
What's the best
course of action, then? Should the sole beneficiary in the Will file to
petition instead?
Yup. That would be normal, and would be best, and would be almost certain
to succeed if she can also submit an affidavit by John that he would prefer
not to be appointed because Jessica would be more suitable.
Lets go further into what would make John unsuitable. If John was
irresponsible with the deceased's credit cards (not saying he used them
after her death), and racked up over $15,000 in credit card debt, I
would assume that's enough to throw some shadow of doubt over him?
Let's there's not much of an estate involved here. No home, no cars...
Just some old furniture and some jewelry and whatnot. They credit card
companies would probably have to write off the debt?
This answer must not be relied on as legal advice for the reasons posted
here: http://mcgyverdisclaimer.blogspot.com
McGyver
.
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