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SammieGIrl

Sammiegirl

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My mother passed away 2 weeks ago. She did have a will made out by an attorney a couple years ago but thus far I haven't been able to locate it. I've called her attorney to request a copy of the will and am awaiting her response. After my mother made out her will she told me that she was leaving me everything. Here's the bad part. I have an older brother and my mother excluded him from the will completely. She apparently had her reasons (which I won't go into here).

My question is as follows: Can my brother contest the will simply because he was left out? He's questioned me about his share of the money already and since I haven't actually seen the will I haven't told him anything. Thank you in advance.

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1 hour ago, SammieGIrl said:

She did have a will made out by an attorney a couple years ago but thus far I haven't been able to locate it.

 

Then how do you know the will exists?

 

 

1 hour ago, SammieGIrl said:

Can my brother contest the will simply because he was left out?

 

He can, but he'll lose unless he has something more than that.  Here's a relatively short article discussing the bases on which a will can be contested under California law.  You might also want to read some of these search results.

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You may have a big problem if you can't find the original. The absence of an original will creates the presumption that the testator destroyed it to revoke its terms.

 

The presumption could be quite costly to overcome in probate court.

 

And, yes, your brother can (meaning he would have the ability to) contest it. Whether he would win or not is anybody's guess but he would have more chance of success if you were trying to probate only a copy of the will.

 

Without the will, the estate gets probated under intestacy which means that you and your brother share 50/50 regardless of what your mother said she was doing.

 

 

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I have an appointment with the attorney who made up the will with my mother. I know the will exists because my mother told me so as did the attorney. I uncovered that I don't need the original (though I would prefer to be in possession of the original) copy to proceed with the legalities of her will. Luckily, the attorney will guide me through the necessary steps to assure that everything is done correctly. The sad part is that I already know that my brother will never have anything to do with me once he uncovers what is in the will. That causes me great sadness.....but I didn't create the will. My mother did.

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If your mother wanted to disinherit your brother, she should have made her wishes known to the attorney so that the attorney could have advised her to put a phrase in the will that specifically disinherited him and also give a specific reason as to why she was doing so, or to leave him $1.00 just so the point would be made.

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I met with my mom's attorney yesterday and my mother did put it in writing that she wasn't leaving my brother anything. She did share a specific reason. I miss my mom so much but certainly wish she hasn't of left me with this mess. The attorney is sending my brother a copy of the will and a letter on her letterhead stationary. Thank you for your response.

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1 hour ago, SammieGIrl said:

I . . . certainly wish she hasn't of left me with this mess.

 

You are, of course, free to give your brother a share of the estate equal to what he would have received had there been no will or your mother hadn't disinherited him (or any other amount you desire).

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That's true. I did meet with my mothers attorney and my mother left a handwritten note saying that she supported my brother during his 24 year incarceration as well as spending $75,000 for a criminal defense attorney prior to him being convicted and she felt that he got his.

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2 hours ago, Johngrosse said:

How do you know the will exists? 

 

Maybe think twice before resurrecting old posts to ask questions that have almost certainly been addressed already.

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