Q: How to obtain a copy of a last will & testament that has not yet been probated?
The sole owner of a home passed away in 2013. Left behind were a current wife, to whom he was married after the purchase of the home & was not listed on the deed. The decedent had two children, one of whom had passed away weeks before he did. The deceased son had one surviving son. Presumably, the terms of the decedent's will leave his estate to his two children, & a caveat is that the current wife be allowed to reside in the home as long as she like or until she dies. Since one of the two children is deceased, his son would be the successor. The time limit for the will to be probated is soon to expire, and the successor can not obtain a copy of the will from his aunt. (The other successor) She says her attorney has it, but will not divulge a name or any info. What can be done at this point?
A:
I cannot provide a specific answer to your situation, as I do not have all of the relevant facts. However, it may be helpful to know that Alabama law addresses the custody of a Will after a person's death. Please see the relevant statute below. Perhaps if you share the statute with the parties you believe have custody of the Will, one of them will turn it over to you or the court. If not, you may need to hire an attorney to force the issue through a court proceeding. Good luck.
Section 43-8-270
Duty of custodian of will after death of testator; liability.
After the death of a testator and on request of an interested person, any person having custody of a will of the testator shall deliver it with reasonable promptness to a person able to secure its probate and if none is known, to an appropriate court. Any person who willfully fails to deliver a will is liable to any person aggrieved for the damages which may be sustained by the failure. Any person who willfully refuses or fails to deliver a will after being ordered by the court in a proceeding brought for the purpose of compelling delivery is subject to the penalty for contempt of court.
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