My father passed away two days ago and the will he had was from 14 years ago when he was unstable and the will says that everything go's to his brother. his brother dose not talk to him anymore and my sister brother and i are all over the age or 20. i have been working for my father since i was 16 is there anyway i can get the property back from my uncle since the will is 14 years old. my father and i had been talking about him giving me the business when he retires and that he was going to change it in his will but he never had the chance to. what do i need to do to get the business back and under my name?
Estate Planning Attorney
I'm very sorry for your loss. I agree completely with my colleague. You should contact a probate attorney in your area immediately. The named executor has a responsibility to get the will admitted to probate, and that may be your opportunity to challenge it on the ground that he lacked testamentary capacity at the time he executed the will. You say he was "unstable," but you would have to prove that he was under duress at the time he signed the will, or that he was not mentally capable of understanding what he was doing ("lacked testamentary capacity"). If you can find people or other evidence which supports that, you may be able to prevent the will from being admitted. If the will is not valid, then your father's estate will flow to his "heirs," which would be his spouse and children. Best of luck.
***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kane County. 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. I hope you this answer helpful.
You need to contact a local probate attorney. Testamentary capacity is a very low standard and if your father never revoke the Will it will most likely been deemed valid. With that said, your Uncle would have to probate the will to succeed to your father's interest.
You also should talk to an attorney because if your father made promises to you about the business that you relied on, you may have some claim to at least partial ownership. I do not know Illinois law so I wouldnt even opine. Again, you should consult a local attorney immediately.
The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.
Real Estate Attorney
I also agree with the others; see an attorney and the likelihood is that the will "will stick" - the date of the will is really irrelevant. HOWEVER, there is always the chance to prevail on your uncle to "disclaim" the will in which case, if there is no other named beneficiary and the estate does not then default to something like a charity (some wills provide for this) or to some kind of testamentary trust (for whose benefit I couldn't even begin to say), then you and your sister MAY be next in line as heirs. The will must be reviewed in its entirety first to plan a strategy. PS whoever is named as executor is supposed to file it in court w/in 30 days of death.
1 found this helpful
2 lawyers agree
Estate Planning Attorney
It appears that you have checked back here to read my colleagues answers, and if so you probably have already contacted and attorney. You surely shouldn't give up on something that means so much to you. In particular, your uncle's (father's brother) desires may bring the property back to you even if the will, and your father's distribution to your uncle stand via probate. I say this to suggest that you reach out to and cooperate with your uncle if at all possible. Best wishes to you, and my condolences to you and your family for your loss.
If you choose, please select "helpful" or a "best" answer, below. LEGAL DISCLAIMER I am licensed to practice law in the State of Illinois and have an office in Kendall County, Illinois. However, I serve clients in many counties within the state of Illinois. My areas of practice involve Estate Planning (Trusts/Wills/Powers of Attorney/) and Probate, Business and Real Estate Counseling. Please take note that the above answer does not create an attorney/client relationship, and that all AVVO responses from both me and my attorney colleagues are for general legal education, only. Information obtained from AAVO or any other internet location should never be used as a substitute for competent legal advice from a licensed attorney that practices in your state. Please also be advised that the passage of time can often diminish the likelihood of success, and some matters will be barred by a Statute of Limitations. So, do not hesitate in seeking an attorney to specifically advise you. Finally, any reference to a specific law or theory of law is my best thought on the topic based upon a brief consideration of the topic, not a complete analysis of your specific situation. Best wishes as you seek resolution of your matter, and I hope you this answer helpful.
2 lawyers agree