Re Petitoning Last Will and Testament Re Petitoning Last Will

Re: Petitoning Last Will and Testament Re: Petitoning Last Will and Testament Source: http://newsgroups.derkeiler.com/Archive/Misc/misc.legal/2006−07/msg00003.html • From: "McGyver" • Date: Fri, 30 Jun 2006 22:35:31 GMT "Thomas" wrote in message news:1151681364.150592.138830@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx McGyver wrote: "Thomas" wrote in message news:1151678666.811806.209880@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx McGyver wrote: "Thomas" wrote in message news:1151645842.143903.259510@xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx Petitoning Last Will and Testament I'm trying to write a legal situation in a novel idea I'm working on. Let's run a couple of hypothetical situations if you're willing to indulge me. My main character has been listed as a personal represenative on a relative's Will (we'll call him John). However, another person (also a relative, named Jane) has filed an older Will of the deceased where Re: Petitoning Last Will and Testament 1 Re: Petitoning Last Will and Testament they are listed as the PR on that document. Now, it's pretty obvious how this works. The older Will should be revocated and the new Will would be administered after filing a petition and a hearing scheduled (as long as there are no hiccups). Am I correct in understanding that Jane has broad discretionary powers to look into any personal/business matters of the deceased because she filed first? What if the deceased did not want the PR listed in the older Will to have any insight into their affairs while they were living or dead (thus the reason for the new Will)?. Is it not using the letter of the law against the spirit of the law in a sense? I guess what I'm getting at, is there any *immediate* way to stop the older PR from using powers given to them in an outdated Will, until a probate judge can decide which Will is valid? No problem. Jane has no powers yet. The will nominates an executor. The nominated executor becomes the actual executor by submitting the will Re: Petitoning Last Will and Testament 2 Re: Petitoning Last Will and Testament to a probate court and obtaining from the court a document called (in my state) "Letters of Administration". Then the nominated executor really is the executor and not just a nominee. That's when the executor has power to do things and to look into things. In that event, is there anyway to order somekind of temporary cease and desist on her part until which Will can be validated? I know that sounds ridiculous, but is there *anything* that would allow for this? To cease and desist futile efforts to get banks or whoever to reveal information? Jane will not be able to do much without a court appointment. If the plot creates some realistic way for Jane to get her nose into the affairs of the estate, then sure, John could go to the probate court and file a motion for a temporary restraining order. That order mitght be granted, but might not be. Nominated executors are given some slack because it is desireble that some person protect and preserve estate assets pending a decsion on the petition. Remember, though, that the initial decision concerning issuing the letters will be fast, so there won't be too much time for Jane's interference. Counting in Jane's favor regarding the TRO is the apparently harmless nature of her inquiries. When you say "court appointment", you are referring to after the older Will has been filed and the letters of administration have been issued? No. I am referring to any appointment of Jane as executor. Before that she has only limited ability to pry into the affairs of the deceased or the estate. That's the time when a TRO might be possible. She is then the court appointed PR, correct? Re: Petitoning Last Will and Testament 3 Re: Petitoning Last Will and Testament Right. After the court says she's the executor then she is. In that event, is there anyway to "temporarily restrain" her until the new Will has been give a chance to be reviewed in Probate court? No. After a court has appointed her as executor, there will be no TRO while some other will is presented. But you have the process out of order. 1, Jane presents the will to the court in connection with opening a probate. 2, Jennifer opposes Jane's petition, and in support of that opposition, submits a new will. 3, the court rules in Jennifer's favor and appoints her as the executor. Jane never gets the appointment. So there is no situation, based on the facts so far, where Jane is the executor for a while and then Jennifer becomes the administrator and in between those times you need a TRO. You can create that stuation if you want to. Simply don't let the later will surface until after Jane receives her appointment. John/Jennifer probably wouldn't get a TRO even then, but anything's possible. That won't happen unless the new will turns out to be invalid for some reason, such as forgery. John will file an objection to Jane's petition for letters of administration. In support of that objection, John will file the new will. If the new will is valid, Jane's petition will probably be denied. At the same time, John would file his own petition for letters. If Jane tries to dig into the affairs of the estate before filing the will for probate, or while it is pending, she could succeed to some extent. People do cooperate with nominated executors. But she will not get cooperation from bankers and some others because they will politely ask to see the letters of administraton. Re: Petitoning Last Will and Testament 4 Re: Petitoning Last Will and Testament There is one wrinkle. Probate may be denied as to the will submitted by Jane and granted as to the will submitted by John, but it is still possible that Jane will be appointed as executor of the estate. That could happen if John is determined to be unsuitable. This answer must not be relied on as legal advice for the reasons posted here: http://mcgyverdisclaimer.blogspot.com McGyver Well, that's an interesting sequence of events. So, the new Will would be administered obviously, but Jane, the PR listed in the older Will, could be given the responsibility of executing the newer Will if John is seen as unsuitable? Yes. What if there was a second PR listed in the newer Will in the event that John was incapable or unsuitable to perform his PR duties. That person, if deemed suitable, would probably get the nod over Jane. However, the "backup" PR (we'll call her Jessica) is also the sole beneficiary listed in the newer Will? Would a probate judge look at that and take the easiest course of action and appoint Jessica from the new Will, or would he see that because she's the sole beneficary in that Will, it may be a conflict of Re: Petitoning Last Will and Testament 5 Re: Petitoning Last Will and Testament interest to have her both as PR and sole benficiary? There is no conflict of interest. Jessica's position as sole beneficiary is an important point in her favor, not a negative factor. She will almost surely be appointed if John is unsuitable, even if she is not named as the alternate. You're saying a judge would appoint her as PR, even if she wern't listed to be one in the Will? Yes. Another angle to look at this... Who should file the petition to object the older Will? John, the PR listed in the newer Will? Well, lets say he suspects that he's going to be found as unsuitable (perhaps he mishandled the estate). Can the fact that he filed for the petition make it null and void if he's found of wrong doing? Not a problem. Disqualification of John doesn't end probate of the later will. What's the best course of action, then? Should the sole beneficiary in the Will file to petition instead? Yup. That would be normal, and would be best, and would be almost certain to succeed if she can also submit an affidavit by John that he would prefer not to be appointed because Jessica would be more suitable. Lets go further into what would make John unsuitable. If John was irresponsible with the deceased's credit cards (not saying he used them after her death), and racked up over $15,000 in credit card debt, Re: Petitoning Last Will and Testament 6 Re: Petitoning Last Will and Testament I would assume that's enough to throw some shadow of doubt over him? That may not be enough to get him disqualified in a situation where there is no heir opposing his apointment. A felony conviction for embezzlement would be better. Let's there's not much of an estate involved here. No home, no cars... Just some old furniture and some jewelry and whatnot. They credit card companies would probably have to write off the debt? If the estate is that small, it is likely there would be no probate. Many states, maybe even most states, have small estate procedures by which small estates can be handled by the sole heir (Jennifer) without probate. The existance of a dispute over which will is the latest could cause a probate of a small estate. But even then, the person with the older will is unlikely to want to spend money on legal fees and/or filing fees, knowing the effort will be futile. But to answer your question: The assets of the estate must be used first to pay the court filing fees and related costs of probate administration, second to pay taxes, third to pay the debts of the decedant, and only then the remainder goes to the sole heir. If there is money after paying for probate and taxes, the creditors would get it, including the credit card companies. The executor would be responsible for using estate assets to pay those debts. The credit card companies would have to write off the debts if the estate doesn't have enough assets to pay the debts (obviously). This answer must not be relied on as legal advice for the reasons posted here: http://mcgyverdisclaimer.blogspot.com McGyver . Re: Petitoning Last Will and Testament 7