Posted on 10/08/2020 2:11:51 PM PDT by woofer2425
"Asking For A Friend"....Asking for opinion....preferably from an attorney, but all are welcome to comment. An older gentleman passed away recently from complications of battling cancer. The question has to do with his will. Originally his will was written to leave his estate, which included several pieces of unimproved land an IRA and Annuity to his niece and sister. He was married only once for a very short period, just a few months, then divorced. Never married again. He also befriended a woman with young children and felt some sympathy for here and helped her monetarily buying her a house and paying the mortgage. Since learning of his worsening condition and ultimate death due to cancer, he began to rewrite his will leaving most of the assets to the two women and other "strangers" and very little to the original beneficiaries. His family felt that he was making some poor choices for several reasons. The day he was to sign the new will, he died...was not able to sign. The attorney, who has been working on both old will in the past and new will now, suggested that we follow the wishes of the older gentleman because that is what he wanted and it would have happened if he didn't die before signing. But, to fulfill those wishes, the executor of the will would have to "gift" the various monies and properties to the intended recipients because the "new" will was never signed, recorded or in force. He told the women of what to expect in the will, the others are unaware of the gift he was to bestow upon them. What would you do? Would you follow his wishes and voluntarily gift the monies and properties, or would you follow the old will that is legally in force, or somewhere in between?
Follow the legal will.
First off I’d get a new attorney
The standing legal document is the original will
A situation fraught with considerable danger, IMO. You do not say whether the atty working on the will is the executor. I would suspect not. By making decisions based upon the new-but-not-executed will, the executor is or would be placing him/herself in a very precarious position of potentially being liable should the original heirs be excluded from inheriting the estate and decide to seek redress. Should they allege and prevail in a case based upon elder abuse, most states provide for treble damages. And I should say, that most of laws I know of relating to elder abuse are VERY specific and VERY “curt”...they are not 2100 page Pelosi documents. They are short and directly to the point.
I am not a lawyer, though I *do* have some estate experience. The above is what I can confidently opine, and no more.
Incidentally, there are attorneys and there are estate attorneys. A “family lawyer” who may have helped draft a fairly simple will long ago is distinctly not qualified to make this kind of decision. In my opinion. The fact that he/she is advising the executor to “assume the new will was executed” is, again, in my opinion, proof positive that they are not qualified to act as an estate attorney. What they are perhaps casually advising the executor to do is really frickin’ dangerous, from the legal liability standpoint.
Very sticky situation. Not only dangerous from the standpoint of the personal liability of the executor, but the vulnerability of the estate to lengthy legal challenge which is screaming expensive and could deplete the estate by well into five figures with ease. And if the estate is cash-poor, it could force the sale of certain assets under court supervision which might be fine, but would place a significant piece of overhead upon the sale transaction.
I do not know what I would do to handle this situation. My non-lawyer opinon would be to get this mediation ASAP. You (or your friend) had better get an experienced ESTATE attorney involved and get your/their checkbook ready.
The original will. The new will would have to be signed
You didn’t give an opinion. You stated a legal position which is not correct and may lead to additional problems administering the estate.
Let me rephrase it:
Follow the legal, signed will. It’s a legal document, the unsigned one is not.
Better, no?
I agree, follow the signed documents.
I agree, follow the signed documents.
Since he never signed it, how does anyone prove that is what he wanted?
Suchnonsense. Sounds corrupt and illegal.
If you are “gifting” there are likely estate and gift tax consequences for the donors. They should be aware of that. Even if they are willing to make the gift, the tax consequences could come back to bite them. The tax thresholds are high now so people aren’t as worried, but if the Democrats come in I suspect the exemptions are going to go right back to zero.
PS
I’D ask that lawyer if he wants to discuss it with the bar association and spend time on prison.
EXACTLY.
ANYTHING not signed is NOT a legal document.
Original SIGNED document rules.
The signed and filed will is the will. Period. If the executor does anything but follow the letter of the signed and filed will, the executor is violating the law and the door is open for lawsuits galore, and perhaps even for prosecution of the executor.
I’m surprised the attorney would suggest such a thing.
Not 100% positive but it doesn't sound like a legal will if no one has signed it other than him.
I haven't read the following, but thought it might provide more information for you.
What kind of lawyer advises a family to ignore a signed legal will in favor of one that is not signed? Especially if the person who wrote it was not in full possession of his faculties? They are free of course to follow the deceased wishes once the legacies of the original will are carried out. My advice: Get a new attorney, one who specializes in probate law and related matters.
“The signed and filed will is the will. Period. “
Where did you get your law degree?
If there is a challenge to a will by a beneficiary (or a person wanting to be a beneficiary), the court will decide, if no agreement is reached.
If there is a valid will and an invalid will, I don’t see where a court would go with the invalid one.
Good luck to whomever on sorting it out!
Fixed
Fiduciary responsibility is a big deal in such matters.
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