Q: My dad owned a business, he passed and there's a questionable will.
The second my dad died, my aunt started asking about a will. My mom, my dads accountant and my aunt agreed to meet in the morning and go through my dad's office together. The next day at 7am my aunt was already at the office tearing it apart in search of a will.
My aunt ended up finding one that says she's now owner of the company. If he wrote this, he made it right before he remarried my mom and in it states that my mom will get his private accounts and property. It appears to be signed by my dad as well as my aunt's niece, husband and father as witnesses. It is notarized also.
There's a suspicion that if there was an updated will, it was destroyed when my aunt went through his office before my mom or his accountant could get there. My dad's signature is suspicious too.
What is the next step. Do we just move forward as the will says. Do we submit to the court to have documents filed to switch accounts. How do we do this? Also should we bother to bring the will into question?
A: If you suspect foul play then you need to immediately retain an estate litigation attorney to discuss all details of this case. The other thing you should do is check with the attorney that wrote the old will to see if he updated it. If that yields nothing, then see if you can determine who his current attorney was at the time of his death. Check the books and records and even his checking account to see if he recently or over the last few years paid an attorney. Check his computer to see if there is any attorney correspondence. Perhaps even call law firms close to his residence. This might be a long shot, but who knows.
If the signature is fraudulent then the will may be overturned.
Also, under most states, a wife cannot be totally written out of will and has a statutory right to a certain percentage of a spouse's estate.
For all of the above reasons, you should get with an estate litigation attorney.
Kirk Kaplan agrees with this answer
A: I agree with Mr. Fromm's answer in large part.
First, I assume you are posting the question on behalf of your mother, because otherwise you do not have standing in this matter. Next Nevada has a pretermitted spouse statute that essentially says will created before marriage, and a subsequent spouse is considered inadvertently omitted. There are a few exceptions, but sounds like your mother should visit with an experienced probate litigation attorney (not just an estate planning attorney because legal concepts are different). Also, your mother may have Nevada community property rights in the business.
Next, just because your aunt is supposedly the named individual who is to receive the business, does not mean automatically she receives the business. The reason is a court must first confirm a Last Will and Testament. Last Wills and Testaments do not avoid probate - they just direct who is to receive probate property.
Finally, consultation with an accountant is likely a waste of time and money. While accountants are many times trusted advisors, they (unless they are also an attorney) do not know what how probate works - period, and can cause more harm than good.
I wish you will.
Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.
The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.
Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.