We received a call last Friday from a woman who said that her father had died but her stepmother was claiming that he did not have a will. The daughter was certain that he did, in fact, have a will.
What happens in such a case? Regardless what the daughter believes, unless a will can be produced there is no will. A check of the county probate court would be in order as some clients traditionally filed their wills in court for safekeeping, but this is rarely done today. There is also the possibility that the father destroyed the will he had, for whatever reason.
Another possibility is that all of the assets may have been made joint with the father's second wife and that she was also named beneficiary of any other assets, such as IRA's, annuities and insurance policies. In this case, all of the assets pass to the surviving spouse without any court proceeding and there is no need for a will or, if there is a will, there is no need to file it.
The remedies for the daughter would be two-fold. First, she could file a legal proceeding against the stepmother to compel an accounting of her father's assets. This may be costly and her claim against the stepmother, if all the assets were made joint or beneficiary designated, would depend on her ability to prove fraud or duress - a highly unlikely scenario.
Second, she may go to the probate court and request to be appointed "administrator" of her father's estate. An administrator, similar to the "executor" under a will, is appointed by the court as the legal representative of the deceased person. It is said they "step in the shoes" of the decedent and have full rights to act in their name. This way, daughter can approach any banks or investment houses where her father had assets and they must respond to her. She can obtain his mail and check for statements there as well. She can compel the stepmother to turn over all documents concerning her father's financial affairs. In the event that her father did have assets in his own name or assets that were left to his estate, these would be shared, by law, as follows. The first fifty thousand dollars would go to his wife and the rest would be split with fifty percent going to his wife and fifty percent going to his children, in equal shares.
Here is where the race to the courthouse comes in. Nothing stops the stepmother from going to court herself to be appointed administrator and gaining control of the estate. In such a case, the first to the courthouse, with a properly prepared petition, wins. We advised the daughter to come in to our office the following Monday and have the petition prepared on the spot and filed the same day. As this was written over the weekend in between, it remains to be seen what she will do.