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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

Posted

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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7 comments

Asker

Posted

Thank you Mr. Frederick, for you answer, either by P.O.A., JTWROS made before testator's death, or by Affidavit. The confirmation by the clerk of the District Court has only verbally said, there is no record of settling of the estate by probate or affidavit. Now taken that this is true, then the removal of the CDs were by either P.O.A. or widow being a JTWROS. Now taken that this true, then the widow has intentionally made the entire estate a non-probate estate, being that all other real/personal property was to go to the widow. The Will was never attempted by the widow to be probated,. This may be also a way to conceal from the Probate Court, the wishes made by the testator? Deception is at play by the widow, through out the entire course of this, as the CD whereabouts are unknown at present to the beneficiaries. The amount of the CDs are great enough to seek recovery. May the theft of it, be considered criminal, and beyond excuse. Thank you for cluing me in on the probate court's ability to remedy an inappropriate conversion. Aloha Nui!

James P. Frederick

James P. Frederick

Posted

If you find that the CDs were changed by POA, then I think you have a decent case. I would hire a probate litigation attorney to assist you. If, on the other hand, the CDs were jointly owned, I do not think there is much you can do. It is fairly common for spouses to own assets in that way. I do not think a court will undo that, even if the Will provides otherwise.

Asker

Posted

Thank you Mr. Frederick, for responding. Since the CDs was the testator's separate property when making of the Will, the jointly owning of them, would have to be done for a reason, which would have to correlate with the wishes of the testator. If not, then the widow/joint owner would have to claim that his intent for the gifting of the CDs to his family, the beneficiaries, has changed before his death. Note: The beneficiaries have evidence; statements, conversations and actions of the widow that prove contrary to this possible claim she may make. A sincere, Mahalo Nui! for your help and all the well wishes.

James P. Frederick

James P. Frederick

Posted

You are most welcome! Let us know how it all turns out!

Asker

Posted

I surely will be celebrating a favorable outcome and will want to thank all of you that contributed help along the way. All of you made it less stressful and quite relieving by providing the support that I needed. Mahahlo Nui! Mr. Frederick, a lot of help came especially from you, and I'm sincerely very grateful. Aloha, for now, 'till I post the verdict. :)

James P. Frederick

James P. Frederick

Posted

You are very welcome! I will be hoping for your good news!

Asker

Posted

SHAKA! (hawaiian: right-on!)

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