Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
Here’s a story about what to do when you know you’re going to be made the executor of an estate. And, you’re a beneficiary of the estate as well. It’s a cautionary tale, if you’ve been following our blog for any length of time, you know it’s a necessary one to heed.
First, here’s a quick run down of the facts:
By all accounts Mabel was a nice elderly woman who had a lot of friends and was fiercely independent. She had never married and had no children of her own. She did, however, have a sister and five nieces and nephews. In 1986 she executed a will, leaving everything to her sister and her nephews and nieces. Her sister was to be the executor.
Unfortunately, her sister died in the early ’90s. Mabel was in a retirement home and in somewhat failing health. The family took care of Mabel, it’s pretty much an undisputed fact that Mabel talked incessantly and in glowing terms about her family. In 1996 Mabel executed a new will.
Mabel’s physical condition deteriorated, she hurt a knee and was unable to walk and she had some long-term memory issues. She had to move to an assisted living facility as she could no longer walk to a dining room. Through it all, her nieces and nephews spent time with her and helped care for her.
Mabel died in 2010. Her will named a niece as executor, the entire estate was to go to the nieces and nephews. The niece filed the will with the probate court, within months a distant relative challenged the will.
The challenge was something we’ve seen dozens of times: the relative claimed that Mabel lacked the testamentary capacity to execute the 1996 will; the family exerted undue influence over Mabel; the family was so close to Mabel he felt she was isolated from him.
The challenge was undoubtedly upsetting to the executor and the family. But, the executor was prepared. Very well prepared.
She testified in court – and had supporting documents gleaned over the years – that her aunt had a sharp mind. Not only at the time of the execution of the will, but for years before and after.
Back in 1996, she either suspected a problem might crop up down the road or was advised by the attorney to be smart … either way, the executor supplied the court with affidavits from the witnesses attesting to Mabel’s sharpness when she signed her will, along with the fact that Mabel was obviously doing so voluntarily. Lastly, she had a copy of the original 1986 will and was able to show the court that the only substantive change in 1996 was renaming the executor.
There’s a lot to learn here. If you even suspect that you may be an executor, anytime, keep this in mind. And feel free to give us a call.
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