My husbands grandmother and grandfather raised him. They have died a few years ago and his mother won't show him the will. His step-father told him that there was something in the will for him as they owned several beach houses and a big house in Portland that his mother is renting out for $1500/month. My husband and I wanted to purchase a house as his mother told us she was going to purchase a house for us. She never did and so we asked her for $1000 to hold the house and she said she didn't have any money right now and that he won't get anything until she dies if there is any left. Can an attorney get a copy of the will?
Family Law Attorney
Well, you've pointed out that your husband's grandmother and grandfather '...died a few years ago..'
So, whatever happened with the grandparent's real property? Where was their will probated? In Portland, Oregon? Vancouver, Washington, etc.? And who pays the property taxes right now on the real estate you mentioned? Have you looked through the real estate deeds where the real estate is located? Have you completed a probate search in those regions? Really, if you've looked and haven't found anything and the grandparent's names are still on the property, something is seriously wrong. And, are their other children of these grandparents that might have been the beneficiaries of a distribution? These are important questions that you'll need to ask, because chances are, they'll lead to some answers.
Generally, it sounds like these deceased grandparents should have already had their estate's probated. You'll need to do the search to find these records. And if their estate has not been probated, Yes, an attorney could begin to probate their estate and could use legal process to request any wills that might be in anyone's possession.
First, the law: RCW 11.20.010
Duty of custodian of will – Liability.
Any person having the custody or control of any will shall, within thirty days after he shall have received knowledge of the death of the testator, deliver said will to the court having jurisdiction or to the person named in the will as executor, and any executor having in his custody or control any will shall within forty days after he received knowledge of the death of the testator deliver the same to the court having jurisdiction. Any person who shall wilfully violate any of the provisions of this section shall be liable to any party aggrieved for the damages which may be sustained by such violation.
So what do you do with someone, I call them a Probate Godzilla, who refuses to file the Will or provide a copy of it?
I've handled & am handling numbers of these cases, and here's what I do:
1. Ignore them. Be pro-active.
2. File a Petition for Letters of Administration, alleging there may be a Will but it hasn't been filed, you don't have it, and the person you believe has it refuses to file it or give you a copy of it. I've never had a Judge fail to appoint a client as the Personal Representative of the estate under those circumstances.
3. Send Notice of Probate to all heirs and the person you believe has the Will.
4. If that doesn't result in the Will being filed within a couple of weeks, move the Court to cite the person you believe has the Will into Court to show cause why they shouldn't be ordered to file either the Will or a Declaration that they don't have it and don't know where it is.
5. By the time of the show cause hearing, you should have either the Will having been filed or a sworn statement that the person you believe has the Will doesn't.
6. Meanwhile, you've been appointed as Personal Representative of the Decedent's estate and are in charge of making all the decisions as to its administration.
7. Furthermore, if the Probate Godzilla does file the Will, and if the Will names the PG as Personal Representative, and if the PG petitions the Court to remove you as PR and replace you by the PG, and if the Court does so, you can file a damage claim against the PG for having willfully failed to timely file the Will under RCW 11.20.010, in which you should be able to be paid all of your legal fees and costs expended so far.
The biggest problem I see clients make in this situation is to concentrate on the PG and attempt to get the PG to do something. In my experience, that doesn't work & only causes more frustration --- what works far better is to ignore the PG and use the Court and its processes to cloak yourself with legal authority and obtain Court Orders to force the PG to do something. That way, when the PG ignores the Court Order, you can obtain a Contempt Order against the PG. The last one of these I obtained around a month ago ordered the Sheriff to arrest the PG and jail her until she filed the Will or the Declaration, and meanwhile she was fined $2,000 a day until she did & had to pay my client's legal costs. That woke her up & she hired an attorney who prepared the Declaration for her & helped her file it. Let the law & the Court "do your work for you." They are much more powerful than you or I.
Estate Planning Attorney
Most states have laws requiring that a decedent's will be filed within a specific number of days after death. If the holder of the will fails to comply, check to see if your state has a specific statute empowering family members to have the court order the holder to deposit the document with the court.