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Can testator/decedent's separate personal property account be recovered for probate?

Honolulu, HI |

The testator had certificates of deposit that was his separate property before entering into marriage, and has gifted them to beneficiaries in the Will. After his death the CDs were removed somehow from the account by the widow, before the probating of the Will? Can it be recovered from the widow after it is discovered in Probate Court that the property was separate and not community property? What law violations has she committed against the decedent and beneficiaries? The widow showed the Will to beneficiaries 2 weeks before the death of the testator.

Attorney Answers 1

  1. I do not know. Based on your summary, it is difficult to see how the widow would have been able to legally access the CDs in the first place. If we know how that was done, it would be easier to give you some kind of answer. The probate court can generally fashion a remedy, if something inappropriate was done. You are best off retaining an attorney to assist you with this, particularly if the accounts have significant value.

    It also strikes me as possible that the CDs could have been a spousal allowance or exemption through probate. You should have an attorney review the entire probate file and investigate further.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.

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