Can a beneficary of a will force the executor to probate a will when she refuses to do so?
by admin ~ November 18th, 2007 . Filed under: Law & Ethics .
msgrannie54 asked:
My aunt is the executor of a will left by my grandmother. She refuses to probate the will that entitles property in Arkansas to be divided between my aunt, my father and my uncle. The will was drawn up in Arkansas decades ago. My grandmother died about 20 years ago and was a resident of California when she died. My aunt, father and uncle all live in California. My dad does not have the original will but he does have a copy. He would like to have his share of the property now so that he can give it to his younger children, but my aunt refuses to probate the will. Can he bring this to the California courts or must he go through Arkansas. The attorney is also deceased. Thank you.
Nilda Laday
My aunt is the executor of a will left by my grandmother. She refuses to probate the will that entitles property in Arkansas to be divided between my aunt, my father and my uncle. The will was drawn up in Arkansas decades ago. My grandmother died about 20 years ago and was a resident of California when she died. My aunt, father and uncle all live in California. My dad does not have the original will but he does have a copy. He would like to have his share of the property now so that he can give it to his younger children, but my aunt refuses to probate the will. Can he bring this to the California courts or must he go through Arkansas. The attorney is also deceased. Thank you.
Nilda Laday
November 20th, 2007 at 2:21 am
You have to go through the Arkansas courts, and yes it can be done! You need a new attorney!
November 22nd, 2007 at 4:14 am
It should be probated in the the state she was a resident of when she died and you need to get a probate attorney and get it done.
Who has been paying the property taxes on that property all these years? Are you sure the property is even still in the grandmothers name?
The first thing you might want to do is some checking with the county in Arkansas and find out who is listed as the owner of that property. It may well have been sold for tax liens by now if no one has been paying Grandma’s property taxes.
November 24th, 2007 at 6:28 pm
The state in which the decedent resided when she passed away is where her “estate” is located, therefore, only the California courts have jurisdiction, even over the out of state property. Since the aunt (the executor) lives in California, there should be no problem subjecting her to the personal jurisdiction of the California courts, and although not familiar with it myself, there certainly MUST be some provision under California’s probate code for forcing the probate of a will where the executor is not willing to perform his/her duties in doing so. Contact a California probate attorney.
November 26th, 2007 at 1:32 pm
You’d have to consult an attorney, but my guess is that it must be done in Arkansas. Your father, or, in the event of his death, you could probably file a claim on the estate in Arkansas and force her to do so. But there will be expenses. Maybe if you threaten to do so, she’ll agree to get it done.