Does the Probate Court investigate on estate assets that are on the Will that were converted to non-probate assets before death?

Does the Probate Court thoroughly investigate on the purpose of the conversion of probate assets into non-probate assets? On the Will, the assets exists to be probated as the decedent expects it to be. If after the death of the testator, the beneficiaries discover that the assets were converted by the testator's spouse, to non-probate assets before the testator's death, does the probate court automatically investigate into a matter such as this? If these assets were the only assets to probate, and all other property were held in JTWROS, would the court have a presumption that a breach has occurred? The period between the Will made, to the death of the testator was approx. 3 months. The misleading purpose of the conversion would have to take place in this time frame.

Honolulu, HI -

Attorney Answers (4)

Steven M Zelinger

Steven M Zelinger

Probate Attorney - Philadelphia, PA

In my experience in PA and NJ "courts" don't do investigations. If you have an issue, you have to hire an attorney to investigate and see if you have facts to support any cause of action against the estate.

This is not legal advice nor intended to create an attorney-client relationship. The information provided here is... more
James P. Frederick

James P. Frederick

Probate Attorney - Livonia, MI

Generally, no...the court investigates only when it is petitioned to do so. Whether or not there is a "breach" as you say, depends on the specific facts of the situation, which you either do not know or did not have enough room to include. Those facts are critical, however. In many states, it is deemed to be impossible for one spouse to unduly influence the other spouse. So that leave you with only incompetence or mistake as grounds for setting aside the transfers. And if you argue the testator was incompetent when the transfer(s) were made, that is awfully close to the time the Will was signed, as well.

You appear to have a matter that is going to be contested, and perhaps hotly contested. You are unlikely to have any chance in court unless you retain a very good probate litigator to assist you. I would find that attorney as soon as possible.

James Frederick

*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and... more
Donald Joseph Quinn II

Donald Joseph Quinn II

Probate Attorney - Kansas City, MO

You need to retain counsel who can determine whether the beneficiaries under the Will have a cause of action for undue influence, fraud, etc. The court will only handle those issues brought before it. The Court will never presume anything regarding fraud allegations. Retain counsel.

Legal disclaimer: This answer does not constitute legal advice. I am admitted to practice law in the State of... more
Robert E. Millsap III

Robert E. Millsap III

Probate Attorney - Seattle, WA

Last minute estate distribution changes like this are uncomfortable. That is especially true when the conversion was done under a power of attorney and not by the decedent.

In some states they shift the burden of persuasion to the recipient of the gift to show that it was not done for self dealing purposes or as a product of undue influence.

If the testator no longer had the requisite capacity and the recipient of the change was the person who made the change under the power of attorney, I would feel very uncomfortable.
The rest of the assets though were JTWRS so they would go to the the surviving spouse anyway. Why was the distribution scheme in the will different though. Was it a way to protect surviving spouse with the JTWRS assets and then also protect children from a prior marriage as well with the will assets? Did the last minute change by the spouse frustrate the decedent's intent.

You need to sit with an attorney and ask what the outcomes might be under Hawaii law. Best to also determine the magnitude of the possible damages because it might not be a big of enough financial issue to warrant a legal battle. As an example, their might be a right to a family allowance that could absorb the amount you feel you might be entitled to or at least diminish it.

Hope those thoughts help yo gather your thoughts.

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