How do I declare a will invalid,if it is public record,but it hasn't been shown yet?

Asked over 3 years ago - Tampa, FL

The "so-called" will went to probate,even though it was with a Trust. The trustee is the beneficiary. The deceased's brother was the only real legal beneficiary,as the deceased had no children,and never been married . But The deceased's boyfriend is the trustee. The sucessor trustee is one of the witnesses on the trust document. How can this be ? Who is really supposed to receive the assets of the estate ? Now a family member has a lot of the deceased's property in their house,claiming it's their inheritance. The deceased's brother has more rights than anyone of these two people. Can you advise on this?

Attorney answers (3)

  1. Evelyn Watts Cloninger

    Pro

    Contributor Level 13

    1

    Lawyer agrees

    Answered . If the will has been submitted to the clerk of the probate court for either admission to probate, or even just for safekeeping, then copies of it can be obtained by paying the clerk's fees for the pages you wish to copy. Assuming the will is a "pourover will", which states that all assets not yet in the trust at the time of the decedent's death are to go to the trustee of an existing trust, then this will must be administered throught he probate court. This is done by the proponent of the will filing a petition asking the court to admit the will to probate and appoint the personal representative named in such will as personal representative. If the will is indeed such a pourover will, then ultimately, it will be the terms of the trust that will determine who gets what under the trust's distributive provisions or directions. You will need a copy of the trust to know what the trust actually says.

    You should note that Florida's trust administration code requires that when a personl representative of the estate is also the trust beneficiary in a pourover will, then notice of administration of the will is required to those next of kin of the decedent who would inherit if the trust did not exist. Since decedent had no children, this would include her/his parents, if living, and if not, then her/his siblings. The trust may leave trust assets to any number of trust beneficiaries and your post is not real clear on whether or not you have seen the trust or whether you know who the trust beneficiaries are. Just because the successor trustee is a boyfriend of decedent does not necessarily mean that the trust states everything decedent owned is to go to that same person. For the successor trustee to be entitled to all of the trust assets, he would have to be named as the sole beneficiary under the terms of the trust itself.

    You need to hire a probate attorney who is also experienced in trust administration because you will not be able to mount attacks on the pourover will without qualified legal counsel. In regard to the successor trustee serving as one of the witnesses on the trust document, though that is poor practice, it is not necessarily something which would completely invalidate the trust. I recommend you hire an attorney, but if you are going to attempt to handle this matter yourself, begin by pleasantly asking the alleged successor trustee to see the original of the trust, and for permission to copy it. (The trustee should be filing a Notice of Trust in the probate court in any case, though a copy of the trust does not have to be attached to that Notice of Trust). Check the will, see who the witnesses are, have a probate attorney look over the will for possible defects in its execution. Determine who wrote the will, who the notary was, and consider the possibility of the will being the result of undue influence, coercion or duress. A probate attorney will know the criteria specified in case law for making a case of undue influence, etc., such as if the boyfriend took decedent to the lawyer to write these document, did he drive her there, did he call the attorney to come to the home or hospital for that purpose, was he her caretaker at the time, etc.

    The soon you initiate a challenge, if you have grounds for it, the better off your case will normally be. Good luck to you.

  2. Dan W. Armstrong

    Contributor Level 14

    Answered . The Last Will & Testament is available to you since it was filed. It becomes public record. Contact the Clerk of the court in the county where it was filed in FL and request a copy. You will be charged $1 per page for that document of any other document in the probate file. Once you see what has been filed then you can make a more informed choice as to your next action. We suggest that a consultation with an attorney be made at that time to discuss your legal options.

    See an elder law attorney since this subject can be complex and other issues are created that you might require further information. My website below may have articles that may further be of interest to you on this subject. If you think this post was helpful, please check the thumbs up (helpful) tab below. Thank you!
    My comments are not intended to establish an attorney-client relationship, are not confidential, and are not intended to constitute legal advice. Proper legal advice can only be given by an attorney who agrees to represent you, who reviews the facts of your specific case, who does not have a conflict of interest preventing the representation, and who is licensed as an attorney in the state where the law applies.

    Dan W. Armstrong, Attorney
    Law Offices of Dan W. Armstrong, P.A.
    P.O. Box 1535
    Ponte Vedra Beach, FL 32004-2479
    (O) 904.280.0058, (F) 904.280.0109

    Website: http://www.DanArmstrong.com

  3. Joseph Warren Cannon Boyles

    Contributor Level 10

    Answered . I agree with Ms. Cloninger's detailed answer above. There are a number of facts in your case that make it too complex for an answer on a forum such as this. You need to meet with an attorney and lay out all of the facts, so that your counsel can see the whole picture and advise you on how to proceed. Good luck!

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