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

Honolulu, HI |

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.

Attorney Answers 4


  1. 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 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.


  2. 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 informational in nature only. This attorney may not be licensed in the jurisdiction which you have a question about so the answer could be only general in nature. Visit Steve Zelinger's website: http://www.stevenzelinger.com/


  3. 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 Missouri only, and make no attempt to opine on matters of law that are not relevant to Missouri. This answer is based on general principles of law that may or may not relate to your specific situation, and is for promotional purposes only. You should never rely on this answer alone and nothing in these communications creates an attorney-client relationship. less


  4. 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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