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Challenging a massachusetts will for a florida resident

Winchester, MA |

my dad who was a florida resident but owned property in massachusetts died suddenly at age 66 and my stepmother has produced and filed a 17 yr old will drawn up by his neighbor in massachusetts who happened to be a lawyer. his estate is worth more than $4million and she is in fla and maintains that she gets everything and we only get our share when she dies?? this is not at all what our dad maintained or wished and we plan on fighting this. where do we start? we were just mailed the probate document last week and have responded promptly to her attorney that we will be challenging.

Attorney Answers 4

Posted

Firstly, let me express my condolences over the loss of your father.

Regarding your question: "Where do we start": My suggestion to you would be to retain counsel immediately to assist you in contesting the will which your stepmother produced. Will contests are difficult and emotional projects to undertake and must be handled with exceptional care.

Will contests are factually involved; further facts would be necessary to evaluate the grounds of your claim: for instance, whether the WIl was procured by fraud, undue influence, or whether there were any Codicils or amendments to your father's Will that might be taken into account.

However, my advice remains that you should contact a lawyer for further consultation and advice given the size of the estate in question.

This is not legal advice and is not intended to create an attorney-client relationship. You should speak to an attorney admitted to practice in your jurisdiction.

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Posted

As your father's child, you are an interested party entitled to copies of probate filings, and to interject your position in those proceedings. I would request a copy of his Will first, if you haven't already. It could be that your dad owned some property jointly with his wife; all of that property is now her's as the remaining owner. His Will only determines what happens to property owned solely by him. It is probable, given his high worth, that he put provisions in his Will establishing a tax shelter trust to avoid estate taxation. These trusts usually pay income to a spouse during their lifetime, and pay out to the children upon the spouse's death. The spouse cannot change the terms of the trust. As a beneficiary, you would be entitled to a copy of any trust instrument.

You definitely should participate in the probate proceedings in order to protect your rights. In addition to responding to stepmom's attorney, you should notify the court. It sounds like you are questioning the validity of the Will, which usually is an uphill battle. Just because it was written by a neighbor does not mean it wasn't valid; your dad just needs to have had the mental capacity to understand and sigh it, and his signature must be witnessed and notarized. Even if your dad told you he was doing something different, if a valid Will gives everything to his wife, you are unlikely to prevail. Probate will be in Florida. Once appointed, a personal representative/exceutor for the estate can transfer property/create trusts in accordance with the Will, including the MA property. Good luck.

Legal advice depends upon the particular facts of a given situation. Please use my answers as general information but not legal counsel.

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Posted

Get a Florida attorney as soon as possible.

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Posted

You should begin with a visit to an Estate Settlement and Probate attorney who is also licensed in Florida, or who can associate with a Florida attorney, to look at what you're dealing with.

Was the probate document issued by a Florida Court? Your question raises some interesting "choice of law" issues that your attorney will certainly be researching and explaining to you. If Massachusetts law is relevant, there is a discussion of Capacity, Undue Influence and Other Objections to Massachusetts Will Documents posted at:

http://estateplansplus.com/html/probate_will_contest.html

Your question contains clues (your stepmother's statements to you) that indicate your father may have set up a plan to protect her, and you. An article on Estate Planning Before a Second Marriage is posted at:

http://estateplansplus.com/html/second_marriage.html

If your father's neighbor-lawyer was an estate planning attorney, he might have created a Q-TIP trust that gives your stepmother the income from all the money until she passes. Article on that is posted at:

http://estateplansplus.com/html/trusts_qtip.html

Other trust provisions that direct marital estate assets are discussed at:

http://estateplansplus.com/html/trusts_marital.html

If your father's estate is worth $4 million, there are estate tax and income tax issues here. Working with your step mother could benefit all parties.

Starting off on a positive and cooperative note may be your best approach. Your attorney can advise you.

-John L. Roberts
Estate Settlement, Probate, Estate Planning, Elder Law, Disability Law
Longmeadow, Massachusetts

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