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ljswick@21

stepmother is executrix of my Dad's will

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my step-mother is the executrix of my Dad's Will. He died in Sept 2017.  The will has not gone into probate.  She refuses to show me the will or to tell me who their lawyer is.  Now she tells me that my Dad's will no longer exists, that it was destroyed because she has made a new will for herself.  Supposedly my Dad left everything to her (they left everything to each other) that includes the house and family cottage (value around $275,000 total) Doesn't my Dad's Will have to be presented before Surrogate court first, for waivers to be signed by his adult children ,  before she is allowed to make changes to my Dad's wishes I don't know about?  I have been trying to be nice and patient because there are many things in the house that belonged to my Mom who died 35 yrs ago and I want to make sure I get her things. She is going to be putting the house on the market this summer. She is 85 years old and trying to keep every penny for herself, two adult daughters and her grandkids.  

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If the estate has not been subject to probate, your step mother is not the executrix of the estate.  The probate court appoints the executrix (or administrator if there is no will).  Perhaps you mean your step mother has been nominated as executrix.  Simply nominating a person as executrix in a willdoes not make them the executrix.  You say your step mother says your father's will no longer exists but then say the will must be submitted to the surrogate court.  If there is a will and it leaves everything to your stepmother, there are no "waivers" involved. 

 

Your post shows you are confused about estate administration.  It might be wise to consult a local attorney to learn about what is involved.

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Did you ever see the will?

Her destroying the will is certainly wrong.

 

Do you know any friends or relatives of your father who may have been asked to be witnesses to his will?  If so, then ask around to see if anyone else knows about the will.

 

You need to talk to a probate attorney about what happens next but you and the other children will be lucky if you get anything from this estate.  Too bad that your father did not let anyone else see the will or know where it was.

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5 hours ago, ljswick@21 said:

Doesn't my Dad's Will have to be presented before Surrogate court first, for waivers to be signed by his adult children ,  before she is allowed to make changes to my Dad's wishes I don't know about? 

 

No.

 

If they owned everything jointly with right of survivorship it all went to her at the time of his death and bypassed probate. Doesn't matter if there was or wasn't a will.

 

Without a will, you can open probate yourself under intestacy if you can show that he had assets that he owned only in his own name. If there were any, you would be entitled to a share.

 

Start by looking up county property records for the house and cottage to see how the deeds were written. If they were in both their names jointly with right of survivorship you can stop right there because it means your father was content to have his wife get everything upon his death.

 

 

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On 4/24/2019 at 4:15 AM, ljswick@21 said:

The will has not gone into probate.

 

Why not?

 

 

On 4/24/2019 at 4:15 AM, ljswick@21 said:

my step-mother is the executrix of my Dad's Will. . . .  She refuses to show me the will

 

Then how do you know she is the "executrix"?

 

 

On 4/24/2019 at 4:15 AM, ljswick@21 said:

Doesn't my Dad's Will have to be presented before Surrogate court first, for waivers to be signed by his adult children ,  before she is allowed to make changes to my Dad's wishes I don't know about?

 

Not quite sure what this means, but your stepmother has no legal ability to change your father's will after his death (except to the extent that she can disclaim her interest in anything he left to her).

 

 

On 4/24/2019 at 4:15 AM, ljswick@21 said:

there are many things in the house that belonged to my Mom who died 35 yrs ago and I want to make sure I get her things.

 

While I understand what you're saying here, legally, there is no such thing as "her things."  Anything of hers became your father's property after she died, and he was free to leave it as he saw fit, including to your stepmother (even though, as a practical matter, she might not care about it).

 

You didn't ask a question, but I strongly suggest you consult with a local probate attorney.  You may need to seek to probate the estate as an intestate estate.  That would force her to come forward with a will.

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I don't know why the will has not gone into probate. I only have her say so that everything was left to her.  I am looking into getting an attorney to help me with this situation.  

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8 hours ago, ljswick@21 said:

I don't know why the will has not gone into probate

 

I postulated a reason earlier. If everything was owned jointly, which is likely the case, then everything went to her.

 

8 hours ago, ljswick@21 said:

I only have her say so that everything was left to her. 

 

You don't have to believe her. You can open probate under intestacy. That might or might not force out the will. You could only probate assets that were owned as your Dad's sole and separate property.

 

Have you looked up the real estate ownership yet?

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I have a similar situation with my mom's death and her husband saying that she had no will. They were married for 30 years. My mom had both bipolar disorder and years of life threatening illnesses, numerous hospitalizations. He called me about a year and few months before she passed away, saying as he "cried", making a point to tell me this only during this particular call that " your mom is manic again and I have to take her name off of everything!" Not thinking at that time he was probably planning for her imminent death during one of these hospitalizations and would therefore not have to give me and my 3 sisters anything. Which would have absolutely gone against my mother's wishes. He was domineering during their entire marriage and did not include her in any financial aspect. I feel she felt like he had her best interests in mind, but he really didn't. After 30 years of marriage , she is entitled to have her wishes honored. He didn't even bury her where she wanted to be. He has seemed to have been planning this for years and it's the principle of matter that is really bothering me. Any thoughts?

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12 hours ago, Cathie said:

she is entitled to have her wishes honored.

 

Actually, she's not. A person's "wishes" mean absolutely nothing after the person died UNLESS that person left specific instructions in the form of a will or a trust.

 

The suggestions made to the previous poster apply to you, too. Start with the home ownership. If it was joint with right of survivorship you can either stop right there or spend lots of money opening probate under intestacy.

 

 

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12 hours ago, Cathie said:

Any thoughts?

 

You should have started a new thread rather than tag it onto a thread that's been dormant for nearly three months.

 

 

13 hours ago, Cathie said:

He called me about a year and few months before she passed away, saying as he "cried", making a point to tell me this only during this particular call that " your mom is manic again and I have to take her name off of everything!"

 

What does "take her name off of everything" mean?  While it is true that folks' most significant assets are owned in a way that there is a written record of ownership (e.g., home, car and financial accounts), pretty much nothing else is owned in that way.  What assets did your mother own that had a written record?  Did he, in fact, "take her name off of everything"?  When did she die?

 

 

13 hours ago, Cathie said:

Which would have absolutely gone against my mother's wishes. . . .  After 30 years of marriage , she is entitled to have her wishes honored.

 

If, in fact, she did not make a will, then her alleged wishes are legally meaningless.  If she was concerned about having her "wishes" honored, she should have made a will.  That being said, and while you didn't identify your mother's state of residence, I don't know of any state in which children get nothing when a person dies without a will and is survived by both a spouse and children.

 

Not exactly sure what you ultimately want to know.  If you're concerned about receiving a share of your mother's estate, then sit down with her husband (who I assume is not your father) and discuss the situation.  If you don't like how that turns out, consult with a local probate attorney.  Please also answer the questions I asked.

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