Does anyone know if you can probate a will after the person that everything was left to has passed on?
by admin ~ May 27th, 2007 . Filed under: Law & Ethics .
sabuilder asked:
My father-in-law died in 2000 leaving everything to my husband’s stepmother. His stepmother died in 2007, and my father’s will was never probated. Now, my stepmother’s kids want my father’s will probated. Is that legal in the State of Georgia?
Brian Zeilinger
My father-in-law died in 2000 leaving everything to my husband’s stepmother. His stepmother died in 2007, and my father’s will was never probated. Now, my stepmother’s kids want my father’s will probated. Is that legal in the State of Georgia?
Brian Zeilinger
May 30th, 2007 at 4:13 am
Not only is it legal but required under law before the mother’s will (if existing) can be probated.
EDITED FOR FALSE INFORMATION:
Intent means nothing in probate. If there was a will duly executed by the father-in-law then it MUST be probated. Otherwise, there is not indication the wife owns anything that is not already in her name exclusively before the marriage or property that was jointly owned with rights of survivorship.
In the present case, the probate court will not proceed with stepmother’s probate (whether a will exists or not) without first probating the father-in-laws will and if such is attempted, it can be contested for cause and the executor, if they have knowledge of the pre-existing will, removed for cause.
I suggest you check my answer, based on Georgia law, with your own attorney before accepting such guess as ‘intent’.
JUST CLARIFICATION ON MLAW POST:
Just so you are clear, we are saying essentially the same thing as any waiver or agreement must also be filed with the probate court along with the subject of the agreement / waiver which would be the will.
Probate doesn’t necessarily mean a 10 year process of dividing up the assets. It can be a short as submitting the agreements/waivers with the will and the court signing off on the process.
May 30th, 2007 at 8:13 am
If your father’s intention was to leave everything to his wife (stepmother) than his wishes should have been respected. What she chose to do with the inheritance then becomes her own business — and she can leave it to anyone she likes.
In the event that she died without a will, all her property goes to her children — no matter where it came from.
Often, lawyers will recommend that ‘his’ property goes to support her (like she lives in the home) until her death (or remarriage) at which point the property goes to his heirs. That way, the spouse isn’t thrown out on the street, but it doesn’t shut his own children out.. You might review the will and see if that kind of language exists, or that you can establish what his intention was.
Her children are probably pushing that probate, because they know that if his property goes to her, they can claim it all for themselves as her heirs.
What did her will state? Was she greedy enough (or convinced by her children) to make her will leave everything only to her heirs, leaving you out? If her will had never been updated, then her will might have left everything to the father — making ‘you’ (your husband/siblings) the only heirs of her stuff, too.
You could challenge the probate, probably, but there’s a hundred questions about why the estate was not probated at his death. If you prefer not to take it to court, you might suggest that all the children (both families) split the combined estate evenly. Yes, someone is going to feel cheated at some point — but the legal costs in defending or protesting will eat up a chunk of the estate — which will cheat you all.
May 31st, 2007 at 6:32 pm
Yes, it is common to open multiple generation probates — if they are needed. Often, if all generations agree on the disposition, one or more probates can be eliminated and the same results accomplished by waivers, quit-claim deeds & other instruments & payments.